LAWS(CAL)-1988-7-65

MOHIT LAL DAS Vs. REBA RANI SAHA

Decided On July 05, 1988
Mohit Lal Das Appellant
V/S
Reba Rani Saha Respondents

JUDGEMENT

(1.) This case was heard on 28th June, 1988, when unfortunately Mr. Sudhis Dasgupta, learned Advocate for the petitioners was not present and no submission was made on behalf of the petitioner and the judgment was delivered by me after hearing only Mr. S. P. Roy Chowdhury, learned Advocate appearing on behalf of the opposite party. After the judgment was delivered. Mr. Dasgupta mentioned the matter and drew the attention of this Court to some of the case laws on the points involved in this case and accordingly such a prayer was allowed and the matter was heard afresh yesterday and today and after hearing the learned Advocates for both the parties, I propose to deliver this fresh Judgment dealing with the submissions made elaborately by the learned Advocates for the parties. In the circumstances , the judgment delivered on 28.6.88 is recalled before signature and the following judgment is passed afresh today.

(2.) This revisional application under Sec. 115 of the Code of Civil Procedure has been filed against the the order dated 31st march 1987 passed by the Judge, 8th Bench City Civil court, Calcutta, in Ejectment Suit No. 1051 of 1976, whereby the learned Judge rejected the application filed by the substituted defendant/tenants for recalling of the order dated 6th August. 1985.

(3.) In this particular case, a suit for eviction was filed by The plaintiff/ landlord against the defendant/tenant and that the sole defendant died on 23rd June, 1984. On 19th July, 1984, the Court below directed the plaintiff/landlord to take steps for substitution of the heirs and legal representatives of the deceased defendant within a certain time. Thereafter, by the order dated 19th November, 1984, the Court below directed the plaintiff to show cause by 18th December, 1984 as to why the said suit should not be treated to be abated. The admitted position is that the plaintiff/landlord did not take any step for substitution within the time and/or no application for setting aside abatement was made within the period prescribed by law. Thereafter, on 23rd May, 1985, the plaintiff filed an application under Order 22 Rule 4 of the Code with an application under Sec. 5 of the Limitation Act for condonation of delay. Subsequently, the said petition was amended and the said application was treated as under Order 22 Rule 9 of the Code by the order dated 3rd August, 1985 and 6th August, 1985. The application under Order 22 Rule 9 was allowed bringing on record the heirs and legal representatives of the deceased defendant after condoning the delay under Sec. 5 of the Limitation Act. The said order was passed ex parte by the Court below without giving any notice to the heirs d legal representatives of the deceased defendant