MD. MAJID SARDAR Vs. MST. SAFIRON RIHI

JUDGEMENT

(1.) This is an application under Art. 227 of the Constitution of India which is directed against the order dated 5th June, 2004 passed by Sri Debi Prosad Dey, the learned Additional District and Sessions Judge, Fast Track Court No. 1, North 24 - Parganas, Barasat in connection with Misc. Appeal No. 32 of 2001 arising out of order dated Aug. 24, 2000 in Misc. Case No. 21 of 1992 under Order 9, Rule 13 of the Code of Civil Procedure arising out of Title Suit No. 561 of 1988.

(2.) It is stated in the grounds of revision amongst other grounds that the learned appeal Judge failed to appreciate that the learned trial Judge while disposing of the petition under Order 9, Rule 13 of the Code also considered the applications under Sec. 5 of the Limitation Act. The learned appeal Judge observed wrongly in his order impugned that such Treatment of the learned trial Judge was wrong although according to the petitioner before me there is no bar. It is also stated that the learned appeal Judge failed to appreciate that the defendants failed to substantiate their claim for non- appearance in the suit.

(3.) Mr. Chitta Ranjan Chakraborty, the learned counsel, appearing with Mr. Partha Sarathi Ghosh, the learned Counsel for the, petitioner has drawn my attention to the order impugned appearing at page No. 32 and tries to impress upon me that the learned appeal Judge had disposed of two matters, one for condonation of delay and other one under Order 9, Rule 13 of the Code which is not permissible under the law and in this connection he has referred to the ratio decided in the case of L.P. Electronics Pvt. Ltd. Vs. Manor Floatel Ltd., 2003(2) CLJ 74. Mr. Chakraborty has also submitted that in-allowing the application under Art. 227 of the Constitution of India direction may be given to the learned trial Judge to dispose of the suit at the earliest.