MUNICIPAL COMMISSIONERS OF HOWRAH Vs. SATYANARAYAN PODDAR

JUDGEMENT

(1.) Ordinarily we are disinclined to interfere in revision with an order restoring a case or an appeal for rehearing. But in this case, the learned Subordinate Judge clearly committed errors of jurisdiction in restoring an appeal under Sec. 141 of the Calcutta Municipal Act, 1923, (as extended to Howrah Municipality ) which was dismissed for default. Accordingly, we have decided to send the matter back to the Court below for rehearing of the restoration application.

(2.) On June 3, 1967, the present opposite parties had presented in the Court of Subordinate Judge, Howrah, the said appeal under Sec. 141 of the Calcutta Municipal Act, 1923, (as extended to Howrah Municipality) against the order of assessment in respect of holdings Nos. 47 to 50, Girish Ghosh Lane, Circle No. 1, Ghusury, Howrah, for the quinquennium commencing from the first quarter of 1950-51. On June 5, 1967, they had filed a petition praying for condonation of delay for filing the said appeal. On June 9, 1967, the learned Subordinate Judge, Howrah, ex parte allowed the said prayer for condonation of delay under Sec. 5 of the Limitation Act and admitted the appeal. Thereafter, the Commissioners of Howrah Municipality, who are Petitioners in the present Rule, had appeared in the said appeal in the Court of Subordinate Judge, Howrah and had filed an objection to the petition of appeal filed by the present opposite parties.

(3.) The said appeal was originally fixed for peremptory hearing on July 5, 1968. But on the repeated prayers made by the present opposite parties the peremptory hearing of the said appeal was adjourned on as many as fifteen occasions. It was ultimately fixed for hearing on Aug. 28, 1970. On the said date, the Respondents were ready, but the Appellants again filed a petition for time. The learned Subordinate Judge allowed the said prayer and fixed Nov. 6, 1970, for peremptory hearing. On Nov. 6, 1970, the Respondents filed hazira in the appeal, but the Appellants did not take any steps, they were found absent on repeated calls and, hence, the learned Subordinate Judge ordered that the appeal be dismissed for default with costs to Respondents. On Dec. 10, 1970, the learned Subordinate Judge had drawn up the cost-sheet in the said appeal.