GILLOORAM GOURISHANKAR Vs. WEST BENGAL STATE ELECTRICITY BOARD

JUDGEMENT

(1.) This is an application for combined prayers for condonation of delay, setting aside of ex parte decree dated 15th Jan., 2001, order dated 30th Jan., 2002 passed in the execution application being G.A. No. 6 of 2002 and dismissal of the execution application pending. Since the application contains composite prayers so the matter was assignt-d to me by the learned Chief Justice. For the time being the application is considered in relation to the prayer for setting aside of ex parte decree by reason of the fact in the event the decree is set aside the other prayers which are consequential in nature, are to be granted by the Court as a matter of course. The decree was passed in old suit of 1993 on 15th Jan., 2001 after nearly more than 8 years after institution. If one strictly goes by the petition then there is no ground to entertain the application for setting aside of the decree. The application has been taken out after more than one and half years from the date of passing of the decree. Admittedly the writ of summons was served, and the defendanti petitioner had not only entered appearance in the suit but also made attempt to contest the suit, making application for extension time to file written statement, however no written statement was filed in spite of obtaining extension. This fact is admitted and undisputed.

(2.) Basically the ground in support of the prayer has been sought to be established in the affidavit in reply. At the time of hearing I was inclined to give an opportunity to the plaintiff/decree-holder to file further affidavit dealing with the allegations purporting to constitute ground made out in the affidavit in reply. Mr. Dhruba Ghosh learned Advocate on behalf of the plaintiff/decree-holder on instruction declined to avail himself of the opportunity. Therefore, the Court has to proceed on the basis of the statements both in the petition, and unrebutted allegation in affidavit in reply.

(3.) The ground summarised in the affidavit in reply, is taken that the related file containing documents which could have been the support of defence that might have been taken in the written statement, was misplaced because of the shifting of the office from Camac Street to Salt Lake. The file could not be traced notwithstanding best effort and searches until recently. As the file containing the document was not made available to learned lawyer Mr. Joydeep Kar he advised that it would be of no use to file any written statement without those documents, to contest the suit. Accordingly the defendant/petitioner did not appear at the time of hearing of the suit. The defendant/petitioner absolutely acted upon bona faide pursuant to such advice. No sooner had the file been traced than the petitioner instructed Mr. Kar at the execution stage to make the instant application when he declined to do so. As such there is a delay in making this application.