SUKUMAR CH DEBNATH Vs. HIREN LAL PATOA

JUDGEMENT

(1.) This revision has arisen out of the order, dated 15.6.98, passed by the learned Civil Judge (Senior Divn.) No. 2, Silchar in Title Suit No. 66/92, declining to set aside the order for ex-parte hearing of the suit and to accept the written statement of the petitioners.

(2.) In a nutshell, the case of the petitioners may be stated as follows:- i) The Title Suit No. 66/92 aforementioned was instituted by the opposite party Nos. 1-4 against the petitioners Nos. 1 and 2, (as defendant Nos. 6 and 4 respectively) and the remaining opposite party of this revision. The suit was for declaration of lease-hold right, title and interest of the plaintiffs to the suit land and also for ejectment of the present petitioners and opposite party No. 8, who was defendant No. 4, the case of the plaintiffs being, in brief, thus; Late Ram Narayan Potwa, i.e. the predecessor-in-interest of opposite party Nos. 1-4, purchased the leasehold right over the suit land and ownership right over the house standing thereon from the non-evictable lessees and took over possession of the same. Late Ram Naraya Potwa, then, raised permanent construction on the said land and thereby acquired the status of non-evictable lessee under Assam Urban Areas Tenancy Act. The said Ram Narayan Potwa died on 25.12.76. Thereafter a fresh settlement was effected in favour of the plaintiffs by proforma defendant No. 7. The plaintiffs allowed the defendant Nos. 1 to 4 to start a welding shop on the said land on payment of 1/3rd share of profit, but the same was never paid. The defendant Nos. 1-4 have no right, title and interest over the suit property inasmuch as they are mere licensees of the plaintiffs in respect of the suit premises, but the defendant Nos. 1-4 inducted defendant Nos. 5 and 6 on some portions of the suit land without any authority. ii) The defendant Nos. 1 and 2 (i.e. opposite party Nos. 5 and 6 of the present revision), filed a joint written statement in the suit, wherein they admitted that the petitioners (i.e. the defendant Nos. 4 and 6) and the opposite party No. 9 i.e. defendant No. 5 were tenants under defendant Nos. 1 and 2. iii) The petitioner No. 1 and opposite party No. 9 entered appearance in the suit and prayed for time to file their written statement and accordingly, the matter was fixed on 12.7.93 for filing of written statement, but defendant Nos. 1 and 2 assured the petitioner No. 1 and the opposite Party No. 9 that the written statement filed by the defendant Nos. 1 and 2 had taken care of the defence of the petitioner No. 1 and also of the opposite party No. 9 and that the petitioner No. 1 and OP No. 9 need not spend money unnecessarily in the litigation as they (defendant Nos. 1 and 2) had taken the responsibility of contesting the suit in January, 1998, the petitioner No. 1 (i.e. defendant No. 6) and O.P. No. 9 (the defendant No. 5) found the conduct of the defendant Nos. 1 and 2 evasive and the same raised suspicion in the mind of the petitioner No. 1 and opposite party No. 9, whereupon they made enquiries and came to learn through advocate's clerk that the defendant Nos. 1 and 2, on the one hand, and the plaintiffs, on the other hand, had entered into a compromise and that the suit had been fixed for ex-parte hearing. Faced with such a situation, the petitioner No. 1 along with opposite party No. 9 (i.e. defendant No. 5) filed an application in the suit, on 17.1.98, praying for vacating the order for ex-parte hearing and it was at this stage that they came to know that a compromise petition had already been filed by the plaintiff and defendant Nos. 1 and 2 aforementioned, whereby they all had conspired to obtain an eviction decree against the petitioners and defendant No. 5. On 6.5.98, the petitioner No. 1 along with defendant No. 5 filed a joint written statement in the suit. The application filed by the petitioner No. 1 and defendant No. 5, on 17.1.98, has been disposed of by the impugned order, dated 15.6.98, aforementioned, whereby the learned Court below rejected the application of the petitioner No. 1 and defendant No. 5 seeking to get the order for ex-parte hearing vacated and declined to accept the written statement of the petitioner No. 1 and the defendant No. 5. iv) As regards the petitioner No. 2 (who has been made petitioner No. 2 by the order of transposition passed in Misc. Case 10/ 2003) it is pertinent to note that this petitioner's case, briefly stated, is thus. On 4.5.97, some revenue officials visited the suit had land and took measurement of the suit property, which included the business premises of the petitioner No. 2. The plaintiffs of the TS 66/92 aforementioned were also present there at the time of taking of the said measurement. Though the petitioner No. 2 made enquiry from the Revenue officials as to why measurement of his business premises was being taken, the Revenue officials remained silent, but upon repeated enquiry from the plaintiffs (i.e. opposite party Nos. 1 to 4 of this revision) the petitioner No. 2 came to know that a case had been instituted against the petitioner No. 2 and others praying for their eviction from the suit property. On the following day, the petitioner No. 2, on enquiry, came to learn that though the (i.e. petitioner No. 2) and his mother had been impleaded as defendants in the said suit, neither he nor his mother had ever received any summons from the Court nor did they have any information or knowledge with regard to the said suit. The petitioner No. 2, then, made an application, on 6.5.97, praying for allowing him an opportunity to contest the suit by filing his written statement. No order was, however, passed on this application. The petitioner No. 2, then, filed another application, on 8.1.98, praying for vacating the ex-parte order of hearing and to give him an opportunity to contest the suit by filing written statement. v) Upon hearing the learned counsel for the parties, the learned trial Court passed the impugned order, dated 15.6.98, rejecting the prayer of the petitioner No. 2.

(3.) I have perused the materials on record including the impugned order, I have heard Mr A.K. Das, learned counsel for petitioner No. 1 Mr N. Choudhury, learned counsel for petitioner No. 2 and Mr B.C. Das, learned counsel appearing for opposite party Nos. 1-4.