SAGAR MALLICK Vs. SARASWATL DUTTA

JUDGEMENT

(1.) THE present Revisional Application is directed against an appellate order dated -27th January, 1987 passed by the learned Additional District Judge, 5th Court, Alipore in Misc. Appeal No. 583 of i985, affirming order no. 24 dated 12th of July, 1985 passed by the learned Munsif, 4th Court, Alipore in Misc. Case No. 6 of 1981.

(2.) THE plaintiff/opposite party instituted a suit against the present petitioner and proforma opposite parties 2 to 7 for ejectment of the defendants in the said suit from the tenanted premises being 2 3/d, Telia Para road, Calcutta-25, which was registered and numbered as Title Suit No. 433 of 1977, inter alia, on the grounds of defaults in payment of rent for the months of January, February, March, 1975 and thereafter since april, 1977 onwards. The suit was decreed ex -parte on 21. 6. 1979. It seems as. in another earlier suit instituted by the said plaintiff against the defendants on the ground of default, the defendants had obtained benefit of avoiding a decree by complying with the terms of sub-section (4) of Section 17 of the West Bengal Premises Tenancy Act. The genesis of the present dispute commenced since the said decree had been, passed. On 14. 2. 1981 the present petitioner filed am application under Order 9, Rule 13 read with Section 151 of the Code of Civil Procedure for recalling of the said ex parte decree, inter alia, contending therein that no summons in the said suit had been served on the petitioner prior to passing of the ex parte decree about which he came to know, from one of his sisters on 10th. of February, 1981 and upon causing inspection of the records of the eviction suit it transpired that on the basis of a declaration in purported compliance with the provisions of Order 5 Rule 19a of the Code of civil Procedure the hearing of the suit had been fixed ex parte and the same ended with the ex parte ejectment decree as mentioned above. The tenant/defendant, in the said application under Order 9 Rule 13/151 of the Code of Civil Procedure, contended that the period of limitation should be. counted not from the date of passing of the decree but from the date of knowledge of the defendant/applicant in terms of Article 123 of the Limitation Act. Though by way of abundant caution the absence of knowledge was pleaded on behalf of the defendant/appellant as a ground for condonation of delay, if there was any, by filing application under section 5 of the Limitation Act on 18th March, 1981, the trial court, by the, impugned order No. 24 referred to above, dismissed the application under Section 5 of the Limitation Act substantially holding that there was service of summons on the defendant/applicant of the suit and a such the period of limitation con the date of filing of the application under order 9 Rule 13/151 of the Code of Civil procedure had expired. The trial court, on the basis of the aforesaid finding, rejected the application under Order 9 Rule 13/151 of the Code of Civil Procedure also by the impugned order. An appeal was taken against such rejection being Misc. Appeal No. 583 of 1985, which, as stated above, was dismissed by the learned Additional District Judge, 5th Court, Alipore by the impugned appellate order.-

(3.) APPEARING in support of the application, Mr. Roy Chowdhury has strongly contended that the courts below having fallen into error in deciding the question of limitation, on which the impugned orders are founded, the same are liable to be interfered with in revision. According to Mr. Roy Chowdhury, it appears that the declaration in terms of Order 5 Rule 19a of the Code of Civil Procedure is the only material on which the finding of the courts below about service of summons on the defendants having been made in the suit is based. Such declaration, upon a proper consideration, cannot be sustained in law - first because the statutory pre-conditions, namely, simultaneous issue of summons in terms of the earlier provisions of Rules 9 to 19 of Order 5 as envisaged under sub-rule (l)of Rule 19a of Order 5 of the Code of (Civil Procedure had not been fulfilled rendering the provisions of sub-rule (2) of Order 5 Rule 19a totally applicable, and secondly, because, even waiving the aforesaid pre conditions, there having been no refusal in the strict sense of the terms, declaration in terms of sub-rule (2) of Rule 19a of Order 5 was untenable. In developing that the postal imbursement 'not claimed' as made on the registered cover regarding the present petitioner could not be equated with refusal specially in view of the peculiar procedure of handing over the summons to the party (plaintiff) for being sent by registered post and accepting the postal receipt filed by the plaintiff subsequently having been. allowed to be followed by the court a practice which, has been severally condemned by pronouncement of Division Bench of this Court in 983 (1) CL3 237 and this lacuna in complying with the conditions laid down order 5 Rule 19a of the Code of Civil Procedure cannot be cured a subsequent finding by the lower appellate court, as has been made the instant case, disbelieving the plea of the present petitioner of siding out of the disputed premises at the time the summons of the it is alleged to have been served on him. Mr. Roy Chowdhury has further sailed the finding of the court below that this case of the present petitioner about his first knowledge about the ex parte decree having been arrived from one of his sisters was not sustainable in the context of the davit filed by the said sister. According to Mr. Roy Chowdhury, on application of the principles laid down in 15cwn 399 (403) such reliance the affidavit of the sister is not permissible in law.