SAMAR BHUSAN PAL Vs. SAKTI PADA DAS

JUDGEMENT

(1.) The present Rule arises out of an order passed by the learned Munsif, 5th Court at Alipore refusing to exercise inherent power under Section 151 of the Civil Procedure Code.

(2.) The facts relevant for our purpose may in brief, be stated as follows;-- The plaintiff-opposite party was a tenant under the defendant petitioner in respect of 2 ground floor rooms, situated at 8/2, Gangadhar Banerjee Lane, P.S. Watgunge, at a rental of Rs. 28/- and Rs. 22/- respectively according to English calendar. On 13-12-1972 the opposite party filed a suit being Title Suit No. 530 of 1972 in the Court of the 5th Munsif at Alipore praying inter alia, for a mandatory injunction against the petitioner. The allegations in the plaint inter alia, were that on 15th Oct. 1972 the meter board of the premises caught fire and was reduced to ashes as a result of which the electric connection of the entire premises along with the two tenanted rooms of the opposite party completely went off. On 16th October, 1972 when the Mistry of the Calcutta Electric Supply Corporation Ltd., came to repair and re-connect the electric line the petitioner after getting his own line repaired did not allow the C.E.S.C. men to repair and reconnect the opposite party's electric line. As the Mistries were not allowed to repair the meter board the opposite party suffered a loss of Rs. 45/- per day as a result of the aforesaid disconnection of electric supply. Hence the suit.

(3.) During the pendency of the aforesaid suit the opposite party filed an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure for an order of temporary mandatory injunction on the same grounds and on identical prayers as made by him in the suit. The petitioner on 31-5-1973 by his petition of objection refuted all the allegations of the opposite party. On 5-7-1973 when the suit was called on for hearing the plaintiff-opposite party was found absent on repeated calls and as a result the learned Munsif dismissed ex parte the said suit for default. Since then the petitioner had no other information but subsequently the petitioner having learned from the friends of the opposite party a rumour to the effect that the said Title Suit had already been restored in the absence of and without the knowledge of the petitioner, the petitioner enquired in Court and came to know about certain proceedings. Thereafter the petitioner obtained certified copies of Order No. 20 dated 20-8-73, Order No. 21 dated 23-8-73 and Order No. 22 dated 31-8-73. It transpired that the plaintiff-opposite party had managed to get an ex parte ad interim injunction order by misrepresentation and playing fraud upon the Court. It further transpired from Order No. 20 dated 20-8-73 that the opposite party allegedly sent the notice of restoration by registered post with acknowledgment slip and got back the alleged acknowledgment slip with a postal remark "refused" on 22-8-73. On the basis of the fraudulent report as to the service of notice, on 31-8-73 the O. P. got the injunction matter disposed of ex parte on the ground that the defendant petitioner had failed to take any step and to be present on repeated calls. Being aggrieved by the order restoring the said suit in the absence of the petitioner, the petitioner on 3-11-73 filed an application in the Court below under Section 151 of the Code of Civil Procedure praying for setting aside the ex parte Order No. 22 dated 31-8-73 whereby an order of injunction had been issued in favour of the opposite party-plaintiff, and to re-hear the same in presence of the parties. It was specifically stated in the petition that the notice of the restoration petition had never been presented to him nor the petitioner had any occasion to refuse the same. But the learned Munsif by his order dated 24-9-74 dismissed the petition under Sec. 151 C. P. C. on the ground that the petitioner had failed to avail of the provisions of Order 43 Rule 1 of the Code of Civil Procedure and as such the Court could not exercise its inherent power under Section 151 of the Code of Civil Procedure, in spite of the fact that the learned Munsif was "impressed" that "the mode of service of the notice upon the defendant shows amply substantively the collusion of the plaintiff with the postal peon and as such the Order No. 22 dated 31-8-73 is required to be set aside and it is necessary to re-hear the suit for fair and equitable justice." Against the impugned Order No. 45 dated 24-9-74 the petitioner has come up in revision to this Court.