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2011 DIGILAW 297 (CAL)

Manas Kundu v. Sudarshan Pal

2011-03-03

PRASENJIT MANDAL

body2011
JUDGMENT :- Prasenjit Mandal, J. This application is that the instance of the plaintiff and is directed against the order no.124 dated August 7, 2010 passed by the learned Civil Judge (Junior Division), Second Court, Howrah in Misc. Case No.4 of 2008 arising out of the Title Suit No.261 of 2000, thereby allowing an application under Section 5 of the Limitation Act, 1963 with costs of Rs.800/-. The plaintiff/petitioner herein instituted a title suit being Title Suit No.261 of 2000 before the learned Civil Judge (Junior Division), Second Court, Howrah against the opposite party for eviction and recovery of khas possession of the suit premises, as described in the schedule of the plaint, on the ground of reasonable requirement, default, etc. and for mesne profits. In that suit, the defendant entered appearance and filed a written statement as well an application under Section 17(2) and (2A) of the West Bengal Premises Tenancy Act, 1956. While disposing of the said application under Section 17(2) and (2A) of the West Bengal Premises Tenancy Act, 1956, the learned Trial Judge directed the defendant to deposit the arrears of rent, on April 11, 2000. Thereafter, the defendant filed a revisional application before the learned District Judge, Howrah under Section 115A of the C.P.C. and the said revisional application was rejected on October 25, 2005. The defendant deposited rent to his Moharar. Ultimately, the suit was decreed ex parte on August 1, 2007. Then, on February 26, 2008 the defendant filed an application for setting aside the ex parte decree under Order 9 Rule 13 of the C.P.C. along with an application under Section 5 of the Limitation Act for condonation of the delay. That application under Order 9 Rule 13 of the C.P.C. was converted into the misc. case no.4 of 2008. The defendant has contended that he relied upon his learned lawyer, Prabir Kumar Bhattacharya fully to conduct his case and then he became ill and he was suffering from hypertension and his physician advised him to take complete bed rest. So, he went to his native place at Hooghly. He asked his son to take necessary steps and pay rent to his learned Advocate for depositing the same in the Court. In this way, the defendant paid rent up to the month of December, 2007. So, he went to his native place at Hooghly. He asked his son to take necessary steps and pay rent to his learned Advocate for depositing the same in the Court. In this way, the defendant paid rent up to the month of December, 2007. Then, when his son tendered rent for the month of January, 2008, he learnt that the said suit has been decreed ex parte. Thereafter, he took necessary steps for setting aside the ex parte decree. By the impugned order, the learned Trial Judge has allowed the application under Section 5 of the Limitation Act on payment of costs. Being aggrieved by the said order, this application has been preferred by the plaintiff. Now, the point for consideration is whether the impugned order should be sustained. Upon hearing the submission of the learned Advocates of both the sides and on perusal of the materials on record, I find that the defendant /opposite party herein was contesting the said suit by taking appropriate steps such as filing an application under Section 17(1), (2) & (2A) of the 1956 Act and filing a written statement. The defendant has contended that he depended on his lawyer, Mr. Prabir Kumar Bhattacharya fully and when he became ill, he asked his son to take necessary steps for depositing the rent as per order of the Court. But the conducting lawyer did not deposit the same. It is also contended that a party should not suffer for inaction or inappropriate action on the part of his lawyer. So, the learned Trial Judge has rightly allowed the application under Section 5 of the Limitation Act. The question to be determined first, is whether the petitioner has shown sufficient reasons for the delay. It is not the case that the defendant was not aware of the institution of the suit. He took necessary steps as indicated above. He paid rents up to December, 2007. He contended that thereafter he suffered severe attack of hypertension. He was confined to bed at his native village. He asked his son to take necessary steps in the suit. His son was assured by the learned Advocate to take necessary steps in the suit. But, his son was not intimated of the ex parte disposal of the suit on August 1, 2007. He was confined to bed at his native village. He asked his son to take necessary steps in the suit. His son was assured by the learned Advocate to take necessary steps in the suit. But, his son was not intimated of the ex parte disposal of the suit on August 1, 2007. On getting such information in January, 2008, he took immediate steps for setting aside ex parte decree along with an application under Section 5 of the Limitation Act. His contention, I find, is supported by oral evidence of the P.W.1 and the medical certificate, exhibit no.2. The learned Trial Judge believed in such oral and documentary evidence and he took a liberal view. Mr. S. C. Karar, learned Advocate appearing on behalf of the petitioner, has referred to the decision of 2008(3) CHN 55 and submits that as per decision of the Hon’ble Single Bench of this Court, the petitioner must prove that he was unable to move for the period of his treatment and the prescription of the doctor who treated him advised him for rest. If it is not so, the contention of the defendant should not be believed. He has next referred to the decision of 2006 (1) CHN 164 and AIR 2008 Cal 175 and submits that the defendant is to explain the delay in not complying with the directions of the Court. The petitioner has filed medical certificate (exhibit 1) to show that he was ill at the relevant period. On the other hand, Mr. Simari, learned Advocate appearing on behalf of the opposite party, has referred to the decisions reported in 2009(6) Supreme 78 particularly paragraph no.2, 3 & 4 and submitted that when there is no perversity in the order and the findings are based on the evidence on record, it should not be interfered with. He has also referred to the decision rendered by this Bench in C.O. No.2010 of 2010 to show that when the Court has exercised the discretionary power in setting aside the ex parte decree holding that sufficient cause has been shown, superior Court should not interfere. The defendant has also relied upon the decision of AIR 2002 SC 1201 particularly paragraph nos.7, 8, 9, 10 & 11 and thus, submits that the condonation of delay is a matter of discretion of the Court and the length of delay is not a matter of concern. The defendant has also relied upon the decision of AIR 2002 SC 1201 particularly paragraph nos.7, 8, 9, 10 & 11 and thus, submits that the condonation of delay is a matter of discretion of the Court and the length of delay is not a matter of concern. The question is whether the evidence as tendered by the petitioner of the misc. case is sufficient to accept for the purpose of condonation of delay. In the instant case, the plaintiff filed the suit for ejectment on the ground of reasonable requirement, default, etc. That suit was decreed ex parte on August 1, 2007 and just about five months thereafter, the application for setting aside the decree was filed on the ground that the petitioner of the misc. case was suffering from illness. The medical certificate filed by him was marked as exhibit 1. The learned Trial Judge has exercised the discretionary power in allowing the application under Section 5 of the Limitation Act holding that sufficient cause has been shown for non-appearance at the time of passing of the ex parte decree. The delay has been explained. This is not an appeal. The learned Trial Judge has allowed the application under Section 5 of the Limitation Act, exercising his discretionary power for rendering substantial justice so that the suit may be disposed of on contest. Accordingly, I am of the view that the impugned order should not be interfere with. The revisional application, therefore, fails to succeed. It is, therefore, dismissed. Considering the circumstances, there will be no order as to costs.