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2010 DIGILAW 861 (CAL)

Prem Chand Roy v. Binoy Bhattacharjee

2010-07-23

KANCHAN CHAKRABORTY

body2010
JUDGMENT 1. MR. Biswas, learned Counsel for the petitioner files affidavit-of-service together with the notice as well as the envelope containing acknowledgement due card bearing endorsement "not claimed" by the postal department. 2. NONE appears on behalf of the opposite parties. This revisional application has been filed by the petitioner Prem Chand Roy praying for setting aside the Order dated 12th July, 2006 passed by the learned Civil Judge, Junior Division, Barrackpur in Title Suit No. 198 of 2004. 3. THE plaintiff/petitioner filed a suit for ejectment, arrears of rent, damages and recovery of khas possession against the opposite parties. THE said suit was registered as Title Suit No. 198 of 2004 in the Court of learned Civil Judge, Junior Division, Barrackpur. 4. THE opposite party No.1 is the tenant and opposite party No.2 is a sub- tenant. THE petitioner served notice to quit upon the opposite parties under section 13(6) of the West Bengal Premises Tenancy Act read with section 106 of the T.P. Act. Since the opposite parties did not vacate, the suit premises and defaulted in payment of rent, he filed the abovementioned suit. In usual course, summons were issued and sent to the opposite parties accompanied by a copy of the registered post with acknowledgement due card. THE acknowledgement due card was in respect of opposite party No.2 returned after due service and notice through post on the opposite party No. 1 was returned with an endorsement "not claimed". Learned Court ultimately fixed the suit for ex parte hearing. In course of ex parte hearing of the suit, the learned Court examined the witness i.e. the plaintiff/petitioner as P.W.1 and admitted some documents for evidence. Oral argument on behalf of the plaintiff/petitioner was also heard and the learned Court fixed 12.7.2006 for passing ex parte Order of the suit. 5. ON 12.7.2006, learned Court found that service of notice on the opposite parties was not satisfactory. So, the Court directed the plaintiff/petitioner to take necessary steps for satisfactory service of the notice on the present opposite parties. 6. BEING dissatisfied and aggrieved by the said Order, this revisional application has been filed challenging the legality, validity and propriety of the same. The short point to be decided in this revisional application is whether the Order of the learned Court is correct, legal and sustainable in law. 7. HEARD Mr. 6. BEING dissatisfied and aggrieved by the said Order, this revisional application has been filed challenging the legality, validity and propriety of the same. The short point to be decided in this revisional application is whether the Order of the learned Court is correct, legal and sustainable in law. 7. HEARD Mr. Biswas, learned Counsel appearing on behalf of the petitioner. Perused the orders passed by the learned Civil Judge, Junior Division, Barrackpur in Title Suit No. 198 of 2004 right from Order No.3 dated 24.1.2005 to Order No.11 dated 12.7.2006. 8. ON perusal of the Orders, I find that the learned Court accepted the fact that summons upon the opposite parties were duly served because the A/D cards in respect of the opposite party No.2 was returned after due service while the notice through post sent to the opposite party No.1 was returned with an endorsement "not claimed" by the postal department. On 19.9.2005 the learned Court came to conclusion that the opposite parties did not appear although notices were served on them. So the Court fixed 12.12.2005 for ex parte hearing of the suit. On 12.12.2005 the affidavit in chief tendered by the petitioner/plaintiff Prem Chand Roy was taken by the Court and kept with record. 9. ON 21.4.2006 learned Court had taken up the suit for ex parte hearing and examined the plaintiff/ petitioner Prem Chand Roy as P.W. 1 who tendered some documents for evidence which were marked as Exhibits 1, 2, 3, 4, 4(b). 4(c) and 5, 5(a) on behalf of the plaintiff/petitioner and fixed 6.2006 for hearing of the argument. In fact, on 7.6.2006 learned Court heard argument on behalf of the plaintiff/petitioner and fixed 12.7.2006 for passing necessary orders. 10. ASTONISHINGLY enough, the learned Court had taken 'U' turn on that date and suddenly found that notices/summons upon the opposite parties were not satisfactorily served. So, he did not pass the ex parte Order, but directed the plaintiff/petitioner to take further step in the matter of servicing summons upon the opposite parties to the satisfaction of the Court. If that Order dated 12.7.2006 allowed to stand, the earlier orders whereby the learned Court came to the conclusion that service of summons upon the opposite parties was satisfactory are to be ignored. 11. If that Order dated 12.7.2006 allowed to stand, the earlier orders whereby the learned Court came to the conclusion that service of summons upon the opposite parties was satisfactory are to be ignored. 11. LEARNED Court was so convinced about the satisfactory service of the summons upon the opposite parties, it fixed date for ex parte hearing of the suit, examined the petitioner as P.W.1, taken some documents into evidence and marked exhibits and even heard oral argument for the plaintiff/petitioner. All these actions of the Court became futile by the order dated 12.7.2006 when the Court was about to pass the ex parte order after closure of the case of the plaintiff/petitioner, it found itself not satisfied with the service of notice. 12. A cursory perusal of the Order dated 12.07.2006 makes it abundantly clear that the learned Court assigned no reasons as to why suddenly it felt dissatisfied with the service of notice. Within four corners of the orders, no reason has been assigned. There was, nothing on record to show that the learned Court assigned reason to ignore its earlier order and progress of the suit. The order dated 12.7.2006 does not appear to be correct and proper order in view of the fact that once the Court found the service of summons upon the opposite parties satisfactory and proceed to hear the suit ex parte. This order cannot be allowed to continue and is set aside. 13. THE revisional application is allowed with a direction upon the learned Court below to pass necessary order in the suit assuming that ex parte hearing of the suit is done with finally. No costs. 14. URGENT photostat certified copy of this order, if applied for, be handed over to the petitioner upon compliance of necessary formalities. Sra. C.