NEERJA LAL Vs. SHRIMATI PHYLLIS ANN VELLIS

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution of India challenging the Judgment and Order dated 30th August, 2010 passed by the learned Additional District Judge, Special Court at Midnapore, DistrictMidnapore (West) in Misc. Appeal No. 90 of 2009 reversing the Order No. 249 dated 30th July, 2009 passed by the learned Civil Judge (Junior Division), Second Court at Midnapore, District-Midnapore (West) in Judicial Misc. Case No. 45 of 2007.

(2.) The background history of the case is that the petitioners being landlords obtained a decree of eviction against the opposite parties-tenants long back and filed an execution case being Execution Case No. 6 of 1992. Thereafter, opposite parties-tenants filed one Judicial Misc. Case after another all of which were dismissed for default. The opposite parties judgment debtors ultimately filed one Judicial Misc. Case being No. 57 of 2003 alleging the decree to be fraudulent, without jurisdiction etc. which was dismissed for default on 3rd December, 2005.

(3.) The opposite parties judgment debtors filed Judicial Misc. Case No. 41 of 2005 under Order 9 Rule 9 of the Code of Civil Procedure for restoration of said Judicial Misc. No. 57 of 2003 after setting aside the order of dismissal for default dated 3rd December, 2005. Said Judicial Misc. Case No. 41 of 2005 was fixed for hearing on 4th April, 2007 and the next date was fixed on 11th May, 2007. It was again dismissed for default and thereafter the opposite parties judgment debtors filed another case being Judicial Misc. Case No. 45 of 2007 for restoration of Judicial Misc. Case No. 41 of 2005 after setting aside the order of dismissal for default dated 11th May, 2007. It was alleged that the petitioners of said Judicial Misc. Case were out of station in connection with their medical treatment and that law clerk of their lawyer also failed to take note on 4th April, 2007 or on any subsequent date the next date of said Judicial Misc. Case No. 41 of 2005, resulting its dismissal for default on 11th May, 2007. Accordingly, they prayed for restoration of said Judicial Misc. Case No. 41 of 2005. Learned executing Court dismissed said Judicial Misc. Case No. 45 of 2007 by Order No. 249 dated 30th July, 2009, mainly considering the past conduct of the petitioners of said Judicial Misc. Case. Said petitioners (opposite parties of this case) filed one appeal being Misc. Appeal No. 90 of 2009 in the appeal Court against said order of dismissal of their Judicial Misc. Case No. 45 of 2007. After contested hearing learned appeal Court allowed said Misc. Appeal No. 90 of 2009 by the order impugned.