PUSPA CHAKRABORTY Vs. RUBY MITRA

JUDGEMENT

(1.) The present revisional application under Article 227 of the Constitution is directed against order dated 09.03.2007 passed by the learned Additional Sessions Judge, Barrackpore in Civil Revision No. 6 of 2006 affirming the order dated 07.09.2006 passed by the learned Civil Judge (Junior Division), 3rd Court at Sealdah in Misc. Case No. 52 of 2005 arising out of Ejectment case no. 39 of 2004 and 40 of 2004.

(2.) The petitioner contends that she filed the above suits for eviction of the opposite party on ground of default in payment of rent and damage of the suit property in respect of premises no. D-70/13 Jessore Road (1, Motilal Colony), Municipal holding no. 36 under Dum Dum P.S. She has further claimed that the opposite party was a tenant in respect of the said premises at a monthly rental of Rs. 125/- payable according to English calendar month but he did not pay such rent from April, 2003 and kept the shop room under lock and key for more than seven years. The learned Trial Court was pleased to decree the suit ex parte directing the opposite party to give up vacant possession of the suit premises in favour of the landlord/petitioner within three months from the date of such order dated 17th February, 2005. Then the opposite party filed an application under Section 39 Rule 14 of the West Bengal Premises Tenancy Act, 1997 read with Section 151 CPC praying for setting aside the said ex parte order which was registered as Misc. Case No. 52 of 2005 on the ground that the said ex parte order was obtained without serving any proper notice or summons upon the opposite party/tenant and without effecting substituted service under Order 5 Rule 20 CPC. The petitioner opposed the move by filing written objection. However, application under Section 39 rule 14 of the West Bengal Premises Tenancy Act was allowed by the learned Court below by order dated 07.09.2006. Being aggrieved by and dissatisfied with such order the petitioner filed a revisional application under Section 115 CPC before the learned Additional District Judge, Barrakcpore being Civil Revision No. 6 of 2006 which was, however, dismissed on 9th March, 2007 and now being assailed.

(3.) The petitioner contends that the learned Court below has failed to appreciate that the application under Section 39 Rule 14 of the West Bengal Premises Tenancy Act, 1997 read with Section 151 CPC was barred by limitation and the burden of proof though raised on the applicant was not at all discharged and shifted upon the landlord and the balance of convenience and inconvenience though tilted heavily in favour of the petitioner the learned Court below has failed to exercise its discretionary power in accordance with law and, therefore, such order dated 9th March, 2007 passed in Civil Revision No. 6 of 2004 is liable to be dismissed.