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2010 DIGILAW 814 (CAL)

Prasanta Singha Roy v. Amarendra Nath Das

2010-07-15

KANCHAN CHAKRABORTY

body2010
Judgment :- Kanchan Chakraborty, J: 1) The revision application under Article 227 of the Constitution of India has been filed by Prasanta Singha Roy and Lakshmi Kanta Singha Roy, the defendants in Title Suit No. 208 of 1998 challenging the legality, correctness and propriety of the order of the learned Additional Distict Judge, Sealdah in Misc. Appeal No. 14 of 2005 thereby affirming the order dated 21.6.2005 passed by the learned Civil Judge, Junior Division, 2nd Court at Sealdah in Misc. Case No. 116 of 1999 arising out of Title Suit No. 208 of 1998. 2) The opposite party herein filed the aforementioned suit for eviction against the petitioner. But the petitioner had no knowledge, whenever about the institution of the suit. He was never served with notice of the suit and copy of the plaint at any point of time. The suit was decreed ex parte on 19.5.1999 by the learned Civil Judge, Junior Division at Sealdah. The petitioner filed an application under Order 9 Rule 13 of the Civil Procedure Code praying for vacate the ex parte order and restoration of the suit. That petition was registered as Misc. Case No. 116 of 1999 in the Court of learned Civil Judge, Junior Division at Sealdah. They also filed an application under Section 5 of the Limitation Act praying for condonation of delay in filling the Misc. Case for restoration of the suit. The grounds on which they filed the petition was that they came to know about filling of the suit and passing of the ex parte order recently and that the opposite party, plaintiff, incollution with Court Bailiff and postal peon suppressed the summons supposed to be served on them. The opposite party herein opposed that prayer and filed written objection thereto in the Court of learned Civil Judge, Junior Division. 3) The learned Trial Court upon taking evidence and hearing of both sides rejected the prayer for condonation of delay as well as prayer for restoration of the suit on 21.6.2005. 4) The present petitioners preferred an appeal against that order which was registered as Misc. Appeal No. 14 of 2005. The learned Additional District Judge at Sealdah upon consideration of the submission of both the parties dismissed the appeal on 18.1.2006 and thereby affirming the order dated 21.2.2005 passed by the learned Civil Judge. 4) The present petitioners preferred an appeal against that order which was registered as Misc. Appeal No. 14 of 2005. The learned Additional District Judge at Sealdah upon consideration of the submission of both the parties dismissed the appeal on 18.1.2006 and thereby affirming the order dated 21.2.2005 passed by the learned Civil Judge. 5) Being not satisfied with the order dated 18.1.2006, the petitioners filed this revisional application on the grounds that – a) That the learned Court failed to appreciate the fact that what was sent in the envelope accompanying the acknowledgment due card was nothing but a letter propounding the Christianity religion and not the plaint; b) That the learned Appellate Court considered the entire accept in a hyper technical way and dismissed the prayer which was not inconsonance with the settled principle of law; c) That the learned Appellate Court failed to appreciate the fact that sending of acknowledgment due care does not ipso facto prove the service of plaint. 6) The point to be considered in this revision application is whether the order of the learned Appellate Court suffers from any incorrectness, illegality and impropriety. 7) Mr. Aniruddha Chatterjee, the learned Advocate appearing on behalf of the petitioners made his best effort to convince this Court that what the petitioner’s received envelopes were not containing copy of plaint and summons but a letter propounding the Christianity religion. He also placed two such envelopes for the inspection of this Court. Mr. Chatterjee, learned Advocate contended further that the petitioner being tenants have actually become victims of foul play on the part of the opposite parties and lost their legal right to make out their case in the Trial Court for no fault on their part. He further contended that Court passes an order, if any, basing on perverse findings of fact, this Court can well interfered with such a perverse findings by exercising the power under Article 227 of the Constitution of India. 8) Mr. Pankaj Haldar, learned Advocate the learned Advocate appearing on behalf of the opposite parties contended that the learned Trial Court as well as the learned Appellate Court passed orders upon consideration of facts and evidence. So there is little scope for this Court to interfere with the findings of the learned Appellate Court. 8) Mr. Pankaj Haldar, learned Advocate the learned Advocate appearing on behalf of the opposite parties contended that the learned Trial Court as well as the learned Appellate Court passed orders upon consideration of facts and evidence. So there is little scope for this Court to interfere with the findings of the learned Appellate Court. This apart, he contended, the summons was duly served on the petitioners/defendants who with malafide intention did not appear in the suit. The specific ground taken by the petitioner, he further contended, in this revision application to the effect that the envelops they received were actually containing letter propounding Christianity religion in stead of copy of plaint and summons, was never raised by them either before the learned Trial Court or learned Appellate Court. On perusal of the order dated 21.6.2005 passed by the learned Civil Judge, Junior Division in Misc. Case no. 116 of 1999, it transpires that the learned Trial Court recorded the evidence the petitioner before disposing of the Misc. Case finally. The deposition sheet of Lakshmi Kanta Singha Roy i.e. the petitioner no. 2 is on record. It appears therefrom that he identified his signature on the A.D. Card which was returned back to the Trial Court after service. No where within the four corners of his deposition it has been spelt out that he received envelope containing letter propounding Christianity religion in stead of copy of plain and summons. The learned Trial Court discussed the matter elaborately in his order. He found that the notices were served by registered post at the correct address of the present petitioner. 9) On perusal of the order passed by the learned Appellate Court it appears clearly that the learned Appellate Court addressed the issue relating to service of notice and summons elaborately. The present petitioners did not also raise the issue before the learned Appellate Court that the envelopes they received were containing letter propounding Christianity religion in stead of summons and copy of plaint. Learned Appellate Court was not found himself convinced with the case made out by the petitioners. He came to a clear findings that the petitioner no. 2 that is Lakshmi Kanta Singha Roy did not speak the truth before the learned Trial Court while he stated that he did not know the signature of his brother. Learned Appellate Court was not found himself convinced with the case made out by the petitioners. He came to a clear findings that the petitioner no. 2 that is Lakshmi Kanta Singha Roy did not speak the truth before the learned Trial Court while he stated that he did not know the signature of his brother. The learned Appellate Court, upon consideration of the facts, evidence and opinion of the learned Trial Court came a conclusion that the present petitioners were fully aware of the suit and that they received summons by registered post with A.D. by putting their signatures on the A.D. Card. The learned Appellate Court endorsed the view of the learned Trial Court and opined that the present petitioner failed to establish that they were prevented from appearing before the Court by any sufficient cause. 10) The petitioners herein have taken a new plea in this revision application to the effect that they received envelopes containing letter propounding Christianity religion in stead of copy of plaint and summons. This plea was not taken by them in the learned Trial Court in Misc. Case as well as the learned Appellate Court in the Misc. Appeal although they had scope to do so. So, there is hardly any scope for such a hypothesis at this stage. The contention of the learned Counsel for the petitioners that the opposite parties in collution with Court bailiff and postal peon suppressed actual service of summons is manifestly fallacious and untenable. The opposite party is none but the landlord of the premises wherein the petitioner resides as tenant. The suit for eviction was filed by the landlord opposite parties in order to evict the petitioner. By sending letter propounding Christianity religion in stead of copy plaint and summons they would not have gained anything. No one is not supposed to act anything detrimental to its own interest and at his own peril. 11) The learned Trial Court and the learned Appellate Court reached at a concurrent finding of fact that summons and copy of plaint were duly served on the petitioners and that fact was established by sufficient evidence, oral and documentary. The new ground raised in this revision application was never raised in the learned Trial Court as well the learned Appellate Court although the petitioner had every scope to do so. The new ground raised in this revision application was never raised in the learned Trial Court as well the learned Appellate Court although the petitioner had every scope to do so. This does not appear to be a proper case for this Court to interfere with the concurrent findings of fact of the learned Trial Court and Appellate Court by exercising its power under Article 227 of the Constitution of India. 12) In the conspectus of the facts and circumstances above, I am of the opinion that the order under challenge suffers from no legality, incorrectness and impropriety. The order warrants no interference in this revision application. 13) Accordingly the revision application, thus, fails and is disposed of. No order as to cost is passed.