DIPA CHAKRABORTY Vs. NETAI BANERJEE

JUDGEMENT

(1.) This is an application for condonation of delay in filing the second appeal seeking to challenge the judgment and decree dated September 11, 2014 passed by the learned Additional District Judge, 9th Court, Alipore, South 24 Parganas in Title Appeal No. 118 of 2008 thereby, affirming the judgment and eviction decree dated February 25, 2008 passed by the learned Civil Judge (Senior Division), 7th Court, Alipore in Title Suit No. 151 of 1997.

(2.) It is the case of the appellants that it was their elder brother, Sukumar Chakraborty who filed Title Suit No. 151 of 1997 (hereinafter referred as "the said suit") against the respondent claiming a declaration of his tenancy in respect of the suit premises, as also decrees for permanent injunction and mandatory injunction. The respondent contested the said suit and in the written statement he also raised a counter-claim claiming eviction of the plaintiff. During the pendency of the suit, the original plaintiff died and he was substituted by his mother, Reba Chakraborty. After framing of the issues in the suit the parties adduced their respective evidence. By judgment and decree dated February 25, 2008 the learned trial Judge dismissed the claim of the plaintiff in suit and allowed the counter-claim of the respondent. The substituted plaintiff, the mother of the petitioners carried the said decree dated February 25, 2008 in appeal, being Title Appeal No. 118 of 2008 before the learned 9th Additional District Judge at Alipore and the appeal was admitted. During the pendency of the said appeal the said Reba Chakraborty, the sole appellant died and she was substituted in the appeal by her husband, one son and the petitioners, her two daughters. The husband of the original appellant, that is, the father of the petitioner also died on January 27, 2012. Thereafter, by a judgment and decree dated September 11, 2014 the appellate Court below dismissed the said appeal and affirmed the judgment and decree for eviction passed by the learned Court below. It is alleged that on the advice of their learned advocate, the petitioners and their brother filed an application under Order 47, Rule 1 of the Code of Civil Procedure, being Misc. Case No. 2 of 2015 before the learned appellate Court below for review of its judgement and the same was dismissed on April 20, 2015. In the meantime, their brother the appellant no. 1(a) in Title Appeal No. 118 of 2008 died. According to the petitioners, on July 11, 2015 they contacted the present advocate who after perusing the judgment of the learned appellate Court below advised them to file second appeal challenge the same by filing second appeal before this Court and accordingly, they have filed the second appeal. The petitioners claim that they have all along been dealing with the case as per advice of the learned advocate representing them before the learned Courts below and there was no wilful latches or negligence of their part in filing the second appeal within the period of limitation. In these facts, as alleged by the petitioners, they are seeking for condonation of delay made in filing the second appeal.

(3.) However, the respondent landlord has contested the prayer of the petitioners for condonation of delay in preferring the second appeal. He filed his affidavit-in-opposition disclosing that the petitioners challenged the order of dismissal of the review application dated April 20, 2015 passed by the learned appellate Court below, by filing a revisional application, being C.O. 2906 of 2015 and by order dated February 24 of 2016 a learned Single Judge of this Court rejected the revisional application on merit.