SHYAMALI BANERJEE Vs. INDRANIL SENGUPTA

JUDGEMENT

(1.) This appeal arises out of the order dtd. 9/6/2023 passed by the First Appellate Court in connection with Title Appeal No. 195 of 2017 and by which the Appellate Court refused to condone the delay in filing the first appeal challenging the ex-parte decree passed in T.S No. 2337 dtd. 21/4/2017.

(2.) Brief facts which led to filing of this appeal are as under:- Respondent/plaintiff filed a suit praying for recovery of possession and damages in respect of the scheduled property and the learned Trial Court was pleased to pass an ex-parte decree of eviction against this appellant. Thereafter, an application has been preferred by this appellant before the First Appellate Court praying for setting aside the said ex-parte order along with an application praying for condonation of delay. The ground taken by the appellant is that as she is an octogenarian lady and is suffering from various ailments and was residing with her daughter at Chandigarh and for that reason she could not be able to contact with her conducting advocate. It is further contended by the appellant that on 10/11/2017 for the first time she came to know about the fate of the suit filed by the respondent when the bailiff of the Court went to the scheduled premises. Upon getting the said information this appellant and her daughter rushed to Kolkata and contacted with her learned Advocate and came to know about the ex-parte decree. Thereafter, this appellant filed appeal before the First Appellate Court causing delay of 232 days.

(3.) Notice was served upon the respondent (herein) and after getting notice the respondent entered appearance in that case and filed written objection denying all the contentions as made out in the said appeal. It is the stand point of the respondent that the present appellant was all along aware about the suit pending before the Trial Court, despite knowing of it with mala-fide intention she did not contest the case and as such ex-parte decree was passed by the Trial Court and thereafter, he got possession of the demise premises through Court after filing of the execution case bearing No. 33 of 2017.