HARIDAS BASAK Vs. STATE

JUDGEMENT

(1.) One of the defendants in Ejectment Suit 967 / 79 has called in question about the propriety of the order passed by the learned Judge, IXth Bench, City Civil Court, Calcutta being Misc. Case No. 2733/95 rejecting the application of the petitioner under O. 9, R. 9 of the Code of Civil Procedure. The opposite party filed the original ejectment suit on the ground of reasonable requirement, default in payment of rent and for subletting. The suit was decreed ex parte on 3-9-91. The present petitioner filed an application for setting aside the ex parte decree which was registered as Misc. Case No. 979 of 1991 and it was dismissed for default on 95-92. Therefore, the petitioner filed another application for restoration of the Misc. Case which was registered as Misc. Case No. 433 of 1992. The application for restoration of the Misc. Case was allowed and ultimately the Misc. Case No. 379 2 of 1991 was restored to file. The said Misc. Case 979 of 1991 was dismissed on contest. Therefore, the petitioner filed a Misc. Appeal in this court in FMAT No. 692 of 1993 for setting aside the order of dismissal of Misc. Case No. 979 of 1991. The said appeal was allowed, consequently, the dismissal order was set aside. On 23-12-93 again the suit was decreed ex parte. Thus the petitioner filed an application for setting aside the ex parte decree under O. 9, R. 13, C. P. C. in Misc. Case 153/94. On 30th July, 1994 the Misc. Case 153/94 was also dismissed for default. Therefore, the petitioner filed another application in Misc. Case 2041/94 for restoration of the Misc. Case 153/94 under O. 9, R. 9. The said Misc. case was dismissed for default. The petitioner, therefore, for the second time came to this court challenging the order of dismissal of the Misc. Case 2041/94. The revisional application was allowed and ultimately the Misc. Case 153/94 was restored. On 7th December, 1995 the Misc. Case No. 153/94 filed under O. 9, R. 13 was dismissed for default. The petitioner filed another misc. case being Misc. Case No. 2733/93 filed under O. 9, R, 9, C. P. C. for restoration of the Misc. Case No. 153/94. The learned trial court, however, was not inclined to set aside the order of dismissal. Therefore, the revision petitioner filed the present application

(2.) It is, inter alia, stated in the application under O. 9, R. 9, C. P. C. for restoration of the Misc. Case 153/94 that on the date of hearing of the Misc. Case i.e. 7-12-95 he filed an application for adjournment of hearing of the misc. case on the ground that his advocate Mr. Amlendu De suddenly sustained fracture on his left hand during the second half of November, 1995 for which he was undergoing treatment. Since on the date of hearing his advocate had acute pains over his broken fractured hand, he had to rush to his Doctor for medicine. Immediately following his return, he found the petitioner waiting in his house to take him to the court for hearing. When the petitioner went along with his advocate around 12-45 p.m., he noticed that the case was taken up for hearing at 11.45 a.m. and it was dismissed for default in the absence of the petitioner and his advocate. The petitioner had no laches or negligence and had been diligently pursuing the case but due to his misfortune his lawyer could not appear in court due to fracture on his hand. Therefore, there was sufficient ground for restoration of the Misc. Case and if the restoration application is dismissed and rejected, the petitioner would suffer severe loss and damage. The opposite parties/plaintiffs had opposed the prayer of the petitioner contending, inter alia, that the application under 0. 9, R. 9, C. P. C. does not bear any iota of truth, much less the illness of the advocate.

(3.) The earlier application filed under O9. R. 13 was allowed subject to payment of Rs. 1700/which was deposited by the petitioner in the trial Court. Even thereafter, when the petitioner did not attend with his advocate on the date of hearing, the said misc. case was dismissed for default. This misc. case under O. 9. R. 9 is the outcome of restoration of the misc. case filed under 09. R. 13 of the Code of Civil Procedure.