SITAL PROSAD CHAKRABORTY Vs. SMT. USHA DEVI (CHATTERJEE)

JUDGEMENT

(1.) This hearing arises out of two applications being CAN No. 7171 of 2002 and CAN No. 7373 of 2002 filed by the respondent/petitioner, the former for recalling the judgement dated 18.1.2002 passed by this Court, o/ which the appeal preferred by the plaintiff/appellant was allowed and decree of dismissal passed by the Courts below were set aside. In the said appeal this Court decreed the suit for eviction in favour of the plaintiff/appellant and directed the defendant/respondent to vacate the suit premises on the expiry 1 oi the month of February, 2002. By the later application, the defendant/ petitioner has prayed for condonation of delay of 202 days in filing the application for recalling and/or setting aside the ex parte decree dated 18th Jan., 2002.

(2.) The facts and circumstances leading to the filing of the present applications are as noted below:-

(3.) Now in the application for recalling the judgement and decree, the 1 defendant/petitioner has alleged that the petitioner entrusted Mr. Khokan Dutta an Advocate of this Court to appear and to conduct the said second appeal on behalf of the petitioner. It has been further alleged that the said learned Advocate assured the petitioner that he would take all steps in connection with the said second appeal. It is further alleged that suddenly on 25.7.2002, the O.P.s of the application threatened the petitioner saying that the petitioner would soon be evicted from the suit premises as the O.Ps. has obtained a decree from this Court. It is further alleged that thereafter on 26.7.2002, the petitioner went to his Advocate engaged in the trial Court for causing necessary searches and came to know that an execution case being T. Ex. Case No. 48/2002 had been started before the learned Civil, Judge (Jr. Division), Second Court at Sealdah. It is further alleged that the petitioner immediately thereafter contacted his Advocate Mr. Khokan Dutta on 29.7. 2002, but the learned Advocate could not give any information regarding the disposal of the said second appeal. Thereafter, the petitioner contacted his present Advocate and after enquiry from the department, the clerk of the learned Advocate came to know that the said second appeal was allowed by a judgement dated 18th Jan., 2002. In the second application for condonation of delay under Sec. 5 of Limitation Act, the petitioner took the exact same ground as stated above for his delay in filing the application in connection with his prayer for recalling the judgement and degree passed in the second appeal. Since the application for recalling the judgement passed in second appeal is admittedly barred by limitation, the question is whether the petitioner has got any sufficient cause for not making the application within the period of limitation