HIMATSINGKA TIMBER LTD. Vs. KUMUDINI DUTTA

JUDGEMENT

(1.) THIS is a petition for leave to appeal to the Supreme Court under Article 133 of the Constitution of India read with Section 109, Civil P. C. from the decree of this court in Second Appeal No. 73 of 1950.

(2.) THE suit out of which this petition arises was for ejectment of the company (M/s. Himatsingka Timber Ltd.) from the land in suit measuring about 14 K. 15 D. The land was admittedly situated within the limits of Dhubri Municipality. Before instituting the suit the plaintiff had sent a notice to the defendants requiring them to deliver possession within 15 days from the date of the receipt of the notice. The defendants did not deliver possession. They resisted the suit. The main ground of defence was that the notice of ejectment was not valid as the tenancy was governed by the provisions contained in the Goalpara Tenancy Act. The notice was admittedly valid if the Transfer of Property Act applied.

(3.) THE defendants appealed to this court. The case was finally disposed of by a Special Bench, which dismissed the appeal. The appeal filed by the defendants in the lower appellate court was found to be time barred on the basis of the Assam view. The majority view further was that the lower appellate court had declined to condone delay in filing the appeal and that the discretion in this respect had been correctly examined. My reading of the judgment of the lower appellate court on this point was that it had omitted to consider the question whether delay could be condoned under Section 5 in the circumstances of this case.