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2007 DIGILAW 170 (CAL)

PROBIR KUMAR BURMAN v. KASHI NATH DAS

2007-03-12

PRABUDDHA SANKAR BANERJEE

body2007
( 1 ) MR. Chowdhury, learned Counsel for the petitioner is present. Mr. Ray Karmakar, learned Counsel for the opposite parties is also present. ( 2 ) THE case is taken up for hearing. ( 3 ) THIS revisional application is one under Article 227 of the Constitution of India and is directed against order dated 29. 11. 2005 passed by the learned additional District Judge, and Judge, Fast Track Court, Chandernagore in misc. Appeal No. 36 of 2005 affirming the order No. 27 dated 22. 02. 2005 passed in connection with Misc Case No. 21 of 2003 in connection with an application under section 5 of the Limitation Act in filing the application under Order 9 Rule 13 read with section 151 of the Civil Procedure Code. ( 4 ) THE fact relating to filing of the said misc. case may be summed up thus. That the present opposite parties filed one eviction case against the present petitioner which was numbered as T. S. No. 226 of 2000. ( 5 ) THE Court took up ex parte hearing of the case on the basis of endorsement of the postal peon regarding service of notice. ( 6 ) PRIOR to the same, the plaintiff/landlord sent one notice under section 13 (6) of the West Bengal Premises Tenancy Act upon the defendant which was duly served. ( 7 ) THEREAFTER the suit was decreed ex parte on 7th March, 2001. ( 8 ) THE present petitioner who was defendant in that suit viz. , T. S. No. 226 of 2000 took the specific plea that without service of summon of that case, the case was taken up for ex parte and the suit was decreed accordingly. The present petitioner also took up the plea that only on 31. 3. 2003 he came to know about the ex parte decree of the suit when processerver went to the suit premises to execute the decree. ( 9 ) THEREAFTER, he filed information slip on 5. 4. 2003 and got the report on 10. 4. 2003. The record was inspected on 31st April, 2003. The application for setting aside the ex parte decree was filed on 2. 5. 2003 along with an application under section 5 of the Limitation Act. ( 10 ) THE plaintiff/decree holder contested the said application by filing written objection and the Trial Court by Order No. 27 dated 22. 4. 2003. The record was inspected on 31st April, 2003. The application for setting aside the ex parte decree was filed on 2. 5. 2003 along with an application under section 5 of the Limitation Act. ( 10 ) THE plaintiff/decree holder contested the said application by filing written objection and the Trial Court by Order No. 27 dated 22. 2. 2005 rejected the said application under section 5 of the Limitation Act and also the prayer for setting aside the ex parte decree passed in connection with the said suit. Being aggrieved by the said order of the learned Trial Judge, the present petitioner preferred one appeal which was numbered as Misc. Appeal No. 36 of 2005. ( 11 ) BY the order impugned, the learned Appellate Court rejected the appeal and affirmed the order of the learned Trial Judge. ( 12 ) AGAINST the said order, the revisional application has been filed by the defendant/judgment debtor/petitioner. ( 13 ) MR. Dinabandhu Chowdhury, learned Counsel for the petitioner challenged the order impugned on the following grounds. (a) That the Court ignored the fact that as per provision of Order 5 Rule 9a, it was the duty of the Court to see that summons through Court and through postal deptt are issued simultaneously. (b) That the Court ignored the fact that the summons through Court was not served upon the defendant and the Court committed error in refusing to allow the application under section 5 of the Limitation Act and also the application under Order 9 rule 13 of the Civil Procedure Code. ( 14 ) AT the same time Mr. Chowdhury contended that the explanation given in the application under section 5 of the Limitation Act was sufficient and the Court was duty bound to accept the same. ( 15 ) IN other words, it was the contention of Mr. Chowdhury that his client. e. defendant/judgment-debtor should be given an opportunity to contest the suit by setting aside the ex parte decree. ( 16 ) IT was submitted by Mr. Roy Chowdhury that for attracting the provision of Order 5 Rule 19a of the Civil Procedure Code the alleged address of the defendant mentioned in the suit is also not the same with the place where the suit property is situated. ( 17 ) THE said pleas were opposed by Mr. ( 16 ) IT was submitted by Mr. Roy Chowdhury that for attracting the provision of Order 5 Rule 19a of the Civil Procedure Code the alleged address of the defendant mentioned in the suit is also not the same with the place where the suit property is situated. ( 17 ) THE said pleas were opposed by Mr. Ray Karmakar, learned Counsel for the opposite parties who challenged the maintainability of the instant revisional application. ( 18 ) HE drew the attention of the Court to the cause title of the revisional application which is one under Article 227 of the Constitution. ( 19 ) IT was the contention of Mr. Ray Karmakar that in a revisional application under Article 227 of the Constitution, the High Court has power of superintendence over the subordinate Courts and the High Court shall interfere if it is found that there was jurisdictional error and serious error of law. ( 20 ) IN the instant case, the Trial Court came to the findings on the basis of evidence on record which was taken on oath. It was the contention of Mr. Ray Karmakar that the entire episode is a mixture of facts along with law and the Hon'ble Court under no circumstances will interfere with the said findings. It was the contention of Mr. Ray Karmakar that even it is found that there was error in fact and law committed by the Trial Court, the hon'ble Court will not interfere in a revisional application under Article 227 of the Constitution of India. For this he relied upon the case reported in (2002) Vol. 8, SCC 400. Head note of such runs follows: "jurisdiction under, held, is revisional not appellate - Article 227 does not vest unlimited authority or prerogatives in High Court to correct all orders - unless errors of law blatantly on record warrant correction under article 227 - even wrong decision made by lower Courts cannot be interfered with under Article 227, if such decisions have been made within the jurisdiction of the Lower Court. " ( 21 ) IN the instant case it is not in dispute that notice of ejectment was duly received by the tenant defendant and it is also admitted fact that the address as mentioned in the notice was identical with the address of the defendant as mentioned in the plaint. " ( 21 ) IN the instant case it is not in dispute that notice of ejectment was duly received by the tenant defendant and it is also admitted fact that the address as mentioned in the notice was identical with the address of the defendant as mentioned in the plaint. ( 22 ) IN view of the said position, I do not find any irregularity or illegality in the findings of the learned Court below that the notice of the suit was duly sent to the correct address and the endorsement of the postal peon was correctly accepted. ( 23 ) IN view of the said position, I am of clear opinion that there is no necessity for interfering with the findings of the learned Trial Judge which was subsequently affirmed by the Appellate Court. ( 24 ) AS such, this revisional application is dismissed but without any costs being devoid of any merit. ( 25 ) INTERIM order of stay, if any, be vacated. ( 26 ) THIS order will also govern C. O. No. 280 of 2006. ( 27 ) THE parties are at liberty to get the urgent xerox certified copy of this order within ten days from date on proper application.