SUJIT KUMAR PAUL Vs. SUBODH KUMAR PAUL

JUDGEMENT

(1.) THIS application is at the instance of the plaintiff and is directed against the order no.173 dated July 25, 2007 passed by the learned Civil Judge (Senior Division), First Court at Alipore, District South 24 Parganas in Misc. Case No.4 of 1990 arising out of the Title Suit No.100 of 1984.

(2.) THE short fact is that the predecessor-in-interest of the plaintiffs/petitioners herein instituted a suit being Title Suit No.100 of 1984 praying for a decree of declaration of charge, specific performance of contract and damages. In that suit, the defendant entered appearance on February 27, 1985 by filing vakalatnama and he prayed for time to file a written statement by an appropriate application. Ultimately, the defendant did not file any written statement. As a result, the suit was decreed ex parte on November 18, 1985. Long time thereafter in 1990, the defendant/opposite party herein filed an application under Order 9 Rule 13 of the C.P.C. and that application was converted into a misc. case being Misc. Case No.4 of 1990. By the impugned order, the misc. case was allowed. Being aggrieved, this application has been preferred.

(3.) BOTH the P.W. Nos.1 & 2 have given concurrent statement that the original defendant did not receive any summons with respect to the said suit. The plaintiffs were not also able to show that the summons was duly served upon the original defendant. During the course of deposition, both the original defendant and the P.W. No. 2 have categorically stated that the original defendant did not file any vakalatnama or any petition for adjournment to file a written statement. They have denied that the signatures appearing on those papers were of the defendant no.1. The learned Magistrate has also compared the signatures appearing on the vakalatnama and the petition with the one appearing in the deposition, that is, admitted signature and observed that signature do not tally.