HARENDRA NATH GHOSAL Vs. SUPERFOAM PVT LTD

JUDGEMENT

(1.) This revision petition under Section 115, Civil Procedure Code, is directed against the order dated January 8, 1990, passed by the Additional District Judge, 8th Court, Alipore, in Miscellaneous Appeal No. 421 of 1988 arising out of Miscellaneous Case No. 44 of 1985 disposed of by the Assistant District Judge, 4th Court, Alipore. Facts may be briefly stated as follows :

(2.) The present petitioner as plaintiff filed T. S. No. 13 of 1985 in the Court of the Subordinate Judge, 4th Court, Alipore, for eviction of the opposite party tenant on the ground of reasonable requirement and also on the ground of damaging a portion of the premises in suit. Summons was sought to be served upon the present opposite party both through the bailiff as well as by registered post. As the summons of the suit was sent under registered post to the address of the tenanted premises and as the envelope came with the endorsement "refused" and as the opposite party did not appear to contest the suit, the present petitioner obtained an ex parte decree from the learned trial judge on June 3, 1985. In execution of such decree, the petitioner obtained delivery of possession of the suit property on September 22, 1985, through the process server after breaking the padlock of the tenanted premises in terms of the order passed by the executing court. The opposite party-defendant thereafter filed an application on December 16, 1985, under Order 9, Rule 13, Civil Procedure Code, along with an application filed under Section 5 of the Limitation Act alleging, inter alia, that the plaintiff, with a mala fide intention, in collusion with the process server and the postal peon, suppressed the summons and registered notice upon the defendant-opposite party and obtained the decree on June 3, 1985, that due to some trouble in the business, the opposite party's office in Calcutta had to close the operation of business temporarily and during the absence of the men of the defendant, the plaintiff hurriedly executed the decree and got possession of the premises and appropriated the articles and furniture worth huge amounts, that the officer of the defendant, only on November 13, 1985, came to Calcutta and found that the landlord was in possession of the said property and, upon enquiry in the court on November 22, 1985, came to know about the ex parte decree. The present petitioner opposed the said application which was converted to Miscellaneous Case No. 44 of 1985. The learned trial judge before whom both the parties led oral and documentary evidence, by his order No. 39, dated June 25, 1988, dismissed the miscellaneous case together with the petition under Section 5 of the Limitation Act on the finding that summons had been duly served upon the present opposite party and that the application under Order 9, Rule 13, Civil Procedure Code, was, therefore, liable to be dismissed as there was no sufficient ground for condonation of the delay in filing the application.

(3.) Being aggrieved, the present opposite party preferred an appeal and the learned appellate judge in Miscellaneous Appeal No. 421 of 1988, by his judgment and order dated January 8, 1990, allowed the appeal and set aside the ex parte decree in T. S. No. 13 of 1985.