YUSUF Vs. MOFZAL AHMED SOWDAGAR

JUDGEMENT

(1.) This appeal is on grant of special leave. Interpretation on the scope of section 105(1) of the Code of Civil Procedure is involved in the present appeal.

(2.) Proper appreciation of the point that has been raised in this appeal a narration of facts in brief is necessary. The plaintiff instituted OS No. 230 of 1969 in the 1st Court of Munsif, Chittagong on 8.9.69 alleging that the defendant was a monthly tenant under him in the suit premises. The tenant defaulted in payment of rent for which the plaintiff instituted the suit for ejectment after determining the tenancy by a notice under section 106 of the Transfer of Property Act.

(3.) The defendant in denying the plaint case in denying raised the question of title of the plaintiff. This written statement was accepted on 25.11.69 and issues were framed on 10. 1. 1970. The plaintiff on 3.2.70 prayed for leave to the court to serve interrogatories and the court directed the defendant to reply to interrogatories of the plaintiff by 12.2.70. On this date a petition for time to file interrogatories was submitted by the defendant, and the court adjourned the case till 26.2.70 for that purpose, and issued a notice upon him to showcause why the written statement of the defendant should not be expunged. On 26.2.70 the defendant filed another petition for time but did not reply to interrogatories. This petition was rejected and the trial Court expunged the written statement and fixed 24.3.70 for ex parte disposal of the suit. On that date the defendant filed a petition under section 151 of the Code of Civil Procedure for acceptance of the written statement after setting aside the order dated 26.2.70. The learned Munsif by his order dated 1.4.70 rejected the petition under section 151 of the Code on the ground that the written statement had been expunged under Order 11, rule 21 of the Code of Civil Procedure, and that the order was appealable. The defendant thereafter on 10.4.70 filed a petition under Order 47, rule I read with section 151 of the Code and this was marked as Miscellaneous Case No. 84 of 1970. Again on 23.4.71 the defendant filed Miscellaneous Appeal No. 174 of 1970 against the order dated 26.2.70. This Miscellaneous Appeal was dismissed by the appellate Court below as time barred. Against this order a Rule was issued by the High Court being Civil Rule No. 483 of 1971. In the meantime on 6.8.71 the review petition under Order 47 read with section 151 of the Code (Miscellaneous Case No. 84 of 1970) was dismissed. Then on 15.1.74 the Civil Rule was heard by a Single Judge and the question canvassed before the High Court was whether the delay has been sufficiently explained in filing the appeal. The learned Judge after hearing the parties came to the conclusion that the delay in filing the appeal beyond time was not satisfactorily explained and in that view of the matter discharged the Rule. Then on 17.9.74 a review petition was filed before the learned Single Judge, but that was rejected. On 15.11.74 the suit was taken up for ex parte hearing and it was decreed. Against this ex parte decree, an appeal was filed and the appellate Court below by its order dated 7.2.75 allowed the appeal, and sent the case back on remand to the trial Court for fresh trial after accepting the written statement filed by the defendant earlier.