MAHIM CHANDRA PRAMANIK Vs. PANNALAL SHAW

JUDGEMENT

(1.) This revisional application is at the instance of the defendant for setting aside an order dated September 29, 1980 passed by the learned Munsif, Third Court, Alipore, in Title Suit No. 365 of 1973 dismissing the petitioner's application under Sec. 151 of the Code of Civil Procedure. By the said application the petitioner prayed for vacating the order dated June 22, 1977 of the learned Munsif striking out the petitioner's defence against delivery of possession. The opposite parties filed the said suit for eviction of the petitioner on the ground of default. On February 28, 1977 the plaintiff filed an application under Sec. 17(3) of the West Bengal Premises Tenancy Act. There was an endorsement by the lawyer for the plaintiff that as the defendant's Advocate was not available, the copy was sent to the defendant under certificate of posting. A slip showing the posting was attached to the petition. The application was fixed for hearing on June 22, 1977 and as the defendant did not appear, the said application under Sec. 17(3) was allowed ex parte and the defence against delivery of possession was struck out. Thereafter, the suit was decreed ex parte on August 31, 1977. The petitioner's application under Order 9 rule 13 of the Code of Civil Procedure was allowed and the suit was restored to file. Thereafter, the petitioner filed an application under See, 151 C.P.C. for vacating the order striking out the defence against delivery of possession. The learned Munsif rejected the said application and the petitioner has challenged the order of the learned Munsif in the present revision al application. Mr. Bhaskar Bhattacharyee learned Advocate appearing on behalf of the petitioner, has urged several points. His contention is that no copy of the application under Sec. 17 (3) was served either upon the petitioner or upon his lawyer. He argues that according to rule 21 of Civil Rules and Orders an application which may be considered material shall not ordinarily be filed unless copy of the same has previously been served upon the lawyer and if for any reason copy cannot be served upon the lawyer, the said copy may be filed in court together with the original application. He contends that in the instant case this provision was not followed and the petitioner was not aware of the said application under Sec. 17(3). Mr. Bhattacharyee also refers to the provision of Order 3 rule 5 of the Code of Civil Procedure and argues that as the petitioner's Advocate was duly appointed to act in court on behalf of the petitioner, the copy of the application should have been served upon the said Advocate or left at the office or ordinary residence of the petitioner's lawyer. As the specific provisions contained in law regarding the service of the copy of the application were not complied with, the learned Court in allowing the application under Sec. 17(3) acted with material irregularity and the petitioner has been seriously prejudiced by the same. He further argues that even if it be presumed that the learned Advocate for the petitioner had knowledge of the application in view of Order no. 25 dated April 11, 1977 recorded in the Title Suit, the petitioner could not appear in court on June 22,1977 as his wife was seriously ill on the said date and also on the date when the suit was fixed for hearing. He has relied upon the case of M/s. Ultra Chemical Industries v/s. M/s. Kishore Industrial Fine Chemical Works reported in : AIR 1973 Bom. 297 and has argued that the act of the learned Munsif in hearing the application under Sec. 17(3) of the Premises Tenancy Act in a case where no copy of the said application was served upon the petitioner or his lawyer, has caused harm to the petitioner as his defence against delivery of possession has been struck out without giving him an opportunity to controvert the allegations of the opposite party. The contention of Mr. Bhattacharya is that as there was mistake on the part of the court, the petitioner should be restored to the position he would have occupied but for the mistake.

(2.) Mr. Narayan Chandra Poddar, learned Advocate for the opposite parties, has argued that copy of the application under Sec. 17(3) of the Premises Tenancy Act was served upon the petitioner through certificate of posting and the learned Munsif was satisfied about the same and recorded the said service. The petitioner was trying to gain time and as such he was only interested in prolonging the hearing of the suit. Mr. Poddar contends that Order no. 25 dated April 11, 1977 would show that both the parties had filed haziras, the suit was taken off from the peremptory board as the application under Sec. 17(3) was lying undisposed of and the said application was fixed for hearing on June 22, 1977. The petitioner was asked by the learned Munsif to file objection in the meantime. It has been contended that the petitioner's Advocate was aware that a petition under Sec. 17(3) had been filed and even if it be contended that no copy was served, the duty of the petitioner was to move the court for a direction upon the opposite party to serve a copy upon the petitioner. The petitioner could have asked the court to extend time for submitting objection after the receipt of the copy. The petitioner did not take any steps and he came forward with an application under Sec. 151 C.P.C. only to gain further time as he had nothing to submit against the application under Sec. 17(3) of the Premises Tenancy Act.

(3.) I have heard the learned Advocates of both sides. The application under Sec. 17(3) was heard ex parte on June 22, 1977. As the said application involves a question of petitioners' defence against delivery of possession being struck out, it must be considered to be a material application in such a case, service of the copy of the application upon the learned Advocate for the petitioner was required. There was no such service of the copy of the application either within the meaning of Order 3 rule 5 CPC or rule 21 of Civil Rules and Orders. No copy of the application was also filed in court together with the original application. The contention of the opposite parties that the copy of the application was served upon the petitioner through certificate of posting cannot be considered to be sufficient compliance with the provisions of law in this respect.