SHREE SHREE ISWAR SATYANARAYANJEE Vs. PARTHA BROTHERS

JUDGEMENT

(1.) This second appeal has been assailed against judgment and decree dtd. 13/5/2013, passed by the learned. Additional District Judge, 2nd Court, Howrah in Title Appeal no. 10 of 2005. By the impugned judgment learned court below set aside the judgment and decree dtd. 31/8/2004 passed by learned Civil Judge (Jr. Division), 5th court at Howrah in Title Suit no 2 of 1989 and thereby allowed the first appeal.

(2.) Brief background of the instant case is that the appellant as plaintiff instituted aforesaid Title Suit no 2 of 1989 against defendant/respondent herein, praying for a decree of eviction and recovery of 'khas' possession interalia on the ground of default and reasonable requirement. The opposite party herein appeared and filed application under Sec. 17(2) of the West Bengal Premises Tenancy Act 1956 and said application was disposed of by the Trial Judge directing the tenant/defendant to deposit R.s. 17,000/- in the court within 30/4/1994 and was further directed to deposit current rent month by month. The opposite party herein failed to comply with the said direction and for which an application for striking out the defence was taken out by the plaintiffs/Appellants and learned court below after hearing, was pleased to strike out the defence of the Respondent herein/defendant and thereafter suit was posted for exparte hearing. The Trial Court on 31/8/2004 passed an exparte decree in favour of Appellant/plaintiff.

(3.) Being aggrieved by that order Respondent herein preferred aforesaid Title Appeal no. 10 of 2005 along with an application under Sec. 5 of the Limitation Act seeking condonation of delay in filing the appeal. However the first appellate court dismissed the said application for condonation of delay and thereby dismissed aforesaid Title Appeal no. 10 of 2005 by an order dtd. 25/8/2010. A second appeal being S.A.T. no. 450 of 2010 was preferred against the said order dtd. 25/8/2010 along with connected application and a Division Bench of this court was pleased to set aside the order dtd. 25/8/2010 and thereby restored the Title Appeal no. 10 of 2005 to its original file by an order dtd. 14/7/2011. Thereafter first appellate court heard aforesaid Title Appeal no. 10 of 2005 in presence of the parties and the First Appellate Court by the impugned order, set aside the aforesaid eviction decree passed in Title Suit no. 2 of 1989, for fresh hearing on the ground that the trial court did not admit the documents filed along with the examination in chief in evidence by putting exhibit mark and as such Trial Court ought not to have passed exparte decree relying upon the documents which are not marked as exhibit. Referring Order XVIII Rule 4(1) of the Code of Civil Procedure (hereinafter called as code) Court below observed that only because plaintiff has filed some documents, so it cannot be said that the document had been admitted in evidence, unless specific order is passed by the court, marking the said document as exhibit in compliance with Rule 4 (1) of Order XVIII. The court below further held, since Trial Court did not comply the proviso to Order XVIII Rule 4(1) of the code by making any order admitting the documents in evidence, the Trial Court cannot pass exparte order relying upon the documents which were only filed along with the affidavit-in-chief but were not marked exhibit by any written order of the court.