KINU RAM MONDAL Vs. RAJANI KANTA KHAMARU

JUDGEMENT

(1.) This application under Sec. 5 of the Limitation Act, praying condonation of delay as caused in filing review application praying review of the judgment dated 20th Feb., 1980 passed by Honourable Justice Mrs. Jyotimoyee Nag (as His Lordship then was) in Civil Rule No. 3479 of 1978, was heard for several days. Both the parties addressed the issue even on merits of the review application, which this Court feels is not the stage unless and until application for condonation of delay is allowed. From the application of Sec. 5 of the Limitation Act, it appears that the rule was disposed of on 22nd Feb., 1980 ex parte in absence of the learned Advocate for the opposite party, who is the applicant of this application as well as the review application. It is stated that after aforesaid rule was finally disposed of by Justice Nag (as His Lordship then was) when the matter was listed in the Court below, the learned Advocate for the first time got knowledge of the said ex parte decision. In paragraph 11 of the application, it is contended that the learned Advocate on Record missed the list and his clerk also could not notice the appearance of the matter in the daily cause list of Justice Nag. Under such state of affairs, it is submitted that the present applicant got on opportunity to place his case in aforesaid civil rule. The aforesaid Civil Rule No. 3479 of 1978 arose out of challenge of the judgment and decree dated 31st July, 1978 passed by learned Additional District Judge, Alipore 3rd Court in Title Appeal No. 525 of 1977 reversing the judgment and decree dated 30th April, 1977 passed by learned Munsiff, 5th Court at Alipore in Title Suit No. 293 of 1966, whereby and where under suit was dismissed on merit by answering all the issues as framed.

(2.) The aforesaid Title appeal was allowed by setting aside the judgment and decree impugned. An order of remand of the suit for rehearing with a rider the plaintiff would be entitled to amend the plaint adding the relief for possession was passed. The Appeal Court further held that the learned Munsiff would hear the parties only on the question of valuation and Court Fees due to such amendment as directed. Challenging the aforesaid judgment and order of the Appeal Court, the revisional application was moved under Sec. 115 of the Code of Civil Procedure resulting the issuance of the said CR 3479 of 1978. The rule was decided ex parte in absence of the learned Advocate for the opposite party/defendant on 22nd Feb., 1980, by setting aside the order impugned and directing the Appellate Court below to hear the parties on merits and to pass a judgment and decree in the appeal on considering the findings of the learned Trial Court. The aforesaid Civil Rule was allowed on the ground that the learned First Appellate Court though had the power to remand the matter back for rehearing but committed illegality by granting leave to the plaintiff to amend the plaint adding the relief for possession, with a rider that the defendant would not be entitled to raise the question of maintainability of the amendment application save and except the question of valuation and the Court Fees.

(3.) It has been contended by the learned Advocate for the plaintiff/petitioner that the aforesaid judgment and decree passed by the First Appellate Court, since became the subject matter of revisional application, ex parte decision passed by High Court on entertaining application under Sec. 115 of the Civil Procedure Code, was without jurisdiction. It is further contended that the right forum was to prefer a Second Appeal challenging the order of remand as well as the order allowing the plaintiff to amend the plaint.