GURMANGAL SINGH Vs. KASHI NATH DUTTA

JUDGEMENT

(1.) This proceeding under Article.227 of the constitution of India is directed against an order dated January 29, 1998 in Civil Revision Case No. 419 of 1996 by which Sri S.K. Chakraborty, Additional District Judge, 4th Court, Alipore in the district of South 24 -Parganas allowed the revisional application and set aside the impugned order dated September 2, 1996 passed by Munsif, 2nd Court in Miscellaneous Case no, 31 of 1999, arising out of T.S. Case No. 4 of 1987.

(2.) Shortly put the facts and circumstances leading to the instant proceeding are as follows -Plaintiff/O.P. filed a suit for ejectment, (T.S. No. 4 of 1987) in the aforesaid court of Munsif, Sealdah on the ground of reasonable requirement, the defendant/petitioner entered appearance and filed an application Under Sec. 17(2) (a) of the West Bengal Premises Tenancy Act. The said proceeding was contested by the Plaintiff/ O.P. by filing a written objection. Defendant/Petitioner took several adjournment for the purpose of hearing of that petition and ultimately, the said application Under Sec. 17(2) (a) of the West Bengal Premises Tenancy Act was rejected as the defendant/Petitioner failed to take any step on September 19, 1989 and on December J 6, 1989, the suit was fixed for ex parte hearing. On that day, the aforesaid title suit was heard ex parte and the ex parte order was passed on December 20.1989. Thereafter, the Defendant/Petitioner filed a Miscellaneous Case No. 31 of 1990; The Defendant/Petitioner filed the Miscellaneous case under Order 9, Rule 13 Code of Criminal Procedure read with Sec. 5 of the Limitation Act for restoration of the suit. The learned Munsif by his order dated September 2, 1996 allowed that proceeding and restored the suit to its original file and number. Being aggrieved by such order, the Plaintiff/O.P. moved the appellate court, by filing the civil revision and the learned Judge allowed the application and set aside the order passed by the learned Munsif on September 2, 1996. Hence this proceeding.

(3.) I have heard the learned Advocate for the Petitioner. None has appeared on behalf of the Plaintiff/ O.P. I have also perused the order impugned carefully. It transpires that the specific plea taken by the Defendant/ Petitioner before the trial court for his absence was that his lawyer Mr. K. Velu had a heart attack in the month of June, 1989. Even prior to that he was a heart patient and as per the advice of the doctor he was on rest. In that background, he had to depend upon his Mohorar and his junior for obtaining the dates. It was the further case of the Petitioner, that at that point of time, the Defendant/Petitioner for the purpose of his treatment and also for the purpose of bringing back his family left Calcutta, ft was the further allegation that the lawyer of the Petitioner came to know alt about the ex parte decree only on April 24, 1990 from one Kapoor Singh that the Plaintiff/O.P. was proceeding with construction in the suit property. Thereafter the Plaintiff's lawyer made an enquiry through his clerk and came to learn that the suit in question was decreed ex parte on December 20, 1989. In that background, the Petitioner/Defendant filed the application Under Order 9, Rule 13 along with an application Under Sec. 5 Limitation Act. The learned Additional District Judge in the order impugned clearly held that although according to the case of the Defendant/Petitioner, the learned Advocate appointed by him was seriously ill and affected with heart disease but such advocate did not entrust any other advocate to deal with the suit. On consideration of the facts and circumstances, he further held that the learned Advocate was not at all sincere in conducting the case. Finally the learned Judge held on consideration of the evidence and other relevant facts and circumstances that no cogent case was made out by the Defendant/ Petitioner of the suit for restoration of the same. He also noted that the Plaintiff obtained possession of the suit property by executing the decree (ex parte) in 1990 and there was no bona fide on the part of the Defendant/O.P. shown in conducting the case. In that view of the matter, the revision application was allowed and the order for restoration of the suit passed by the learned Munsif was set aside.