ZAHIRUNESSA BIBI Vs. SUDAMA MAJHI

JUDGEMENT

(1.) THIS application under Article 227 of the Constitution of India has been preferred against order No. 85 dated 18. 7. 2006 under Order 9 Rule XIII of the code of Civil Procedure by the learned Civil Judge (Junior Division), 1st Court at Serampore in Misc. Case No. 35 of 1999 (arising out of Title Suit No. 344 of 1994 ).

(2.) IN short, petitioners projected their case in the way that originally a suit for eviction was filed against the opposite party No. 1 together with a prayer for arrear rent valued at Rs, 1,620/-, by Sk. Abdus Salam (since deceased) who was the predecessor-in-interest of the present petitioners. Since the defendant-opposite party No. 1 defaulted in payment of rent, subsequent by an agreement he agreed to leave the premises by December, 1993 and as he did not do so, original plaintiffs sent a notice claiming vacant possession of the suit premises, through his Advocate on 26. 9. 1994 and the said notice was also ignored by the defendant-opposite party No. 1 and so the suit being Title suit No. 344 of 1994 was filed. Though defendant-opposite party No. 1 initially appeared, but for his default, the suit was ordered to be heard ex parte by the learned trial Court and subsequently, the suit was heard and it was decreed ex parte with a direction upon the defendant-opposite party No. 1 to deliver vacant possession within three months from the date of decree on 28. 5. 1999. The present petitioner being substituted plaintiffs, filed Execution Case No. 14 of 1999 and was processing the Execution Case even by applying for getting order thereto for police help. Subsequently, the defendant filed application under Order 9 Rule XIII read with Section 151 of the Code of Civil Procedure together with an application under Section 5 of the Limitation Act for setting aside the said ex parte decree of his eviction and the said application was registered as Misc. Case No. 35 of 1999. Petitioners alleged that the opposite party No. 1 with bad intention to cause delay in the execution of the decree and also in the whole process, has filed the said application for setting aside the ex parte decree without filing any appeal against the said decree and thereby the opposite party went through a process of wasting time unnecessarily depriving the petitioners-decree holders from taking possession of the suit premises on a due decree of the Court. The petitioner-decree holders, as directed by the learned trial Court, filed their written objection by way of showing cause in the said Misc. Case which was subsequently taken up for hearing and on the basis of evidence adduced by the opposite party No. 1 in the said misc. Case No. 35 of 1999, the learned Trial Judge allowed the said application under Order 9 Rule XIII of the Code of Civil Procedure on 18. 7. 2006 and set aside the ex parte decree passed in Title Suit No. 344 of 1994 and restored the suit subject to payment of Rs. 800/- as cost by 31. 7. 2006. Petitioners claimed that while opposite party No. 1 defendant moved before the same court for setting aside the ex parte decree, only to delay the process of justice intentionally, the learned Trial Judge passed the impugned order without applying his mind judicially since all the doctors who treated the defendant-opposite party No. 1 for long eleven months for his low blood pressure were not examined as witnesses and set aside the ex parte decree at the stage when the same was put into execution and the present petitioners, substituted as plaintiffs in the suit, already deposited cost for police help as ordered by the court earlier, for execution of the decree.

(3.) MR. Hafizur Rahaman, the learned Advocate for the petitioners submitted further that though the opposite party No. 1 who obtained the order for setting aside the ex parte decree, might have gone to the higher Court with appellate jurisdiction, by preferring an appeal against the ex parte decree passed in the suit concerned since the suit was heard on merit on presentation of evidence, oral and documentary, from the side of the present petitioners as substituted plaintiffs therein and as the learned trial Court passed the order on ex parte decree on consideration of merit of the suit concerned though only in respect of the case made out by the present petitioners as plaintiffs therein, the proper avenue for the opposite party No. 1 should have been prefer an appeal against the said ex parte decree and not by an application under Order 9 Rule XIII which has been made herein. Mr. Rahaman spelled the act of the opposite party No. 1 in filing application under Order 9 Rule XIII for setting aside the ex parte decree, has an intention to cause the delay in the act of getting vacant possession of the disputed premises by evicting the opposite party No. 1 therefrom. It is, further, submitted by Mr. Rahaman that the learned trial Court also should have refused the application of the opposite party No. 1 since it was presented at a time when the present petitioner have already put the ex parte decree into execution for getting vacant possession of the disputed premises in view of the ex parte decree and when it proceeded so far as the present petitioners also put the cost of the police help by treasury challan.