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2011 DIGILAW 503 (CAL)

Kuresha Khatun v. Moinuddin Ansari (dead)

2011-04-06

PRASENJIT MANDAL

body2011
Judgment :- Prasenjit Mandal, J. This application is at the instance of the defendants/judgment debtors and is directed against the order no.55 dated July 7, 2007 passed by the learned Civil Judge (Junior Division), Second Court, Howrah in Misc. Case No.25 of 2002 arising out of the Title Suit No.116 of 2000 thereby rejecting application under Section 5 of the Limitation Act. The plaintiff/opposite party herein instituted a suit being T.S. No.,116 of 2000 before the learned Civil Judge (Junior Division), Howrah for eviction against the predecessor-in-interest of the petitioners. In that suit, the opposite party got an ex-parte decree. On getting an information by search on June 6, 2002, the petitioners got knowledge of the ex-parte decree passed against them. Thereafter, they contacted their advocate and then an application under Order 9 Rule 13 of the C.P.C. was filed on June 14, 2002. At that time, the mistake was detected by the computer department that the application was barred by limitation. Thereafter, the petitioners filed an application under Section 5 of the Limitation Act praying for condonation of the delay in filing the said misc. case. The opposite party filed an objection against the said application under Section 5 of the Limitation Act. Both the parties adduced evidence on the application under Section 5 of the Limitation Act. By the impugned order, the learned Trial Judge has dismissed the application under Section 5 of the Limitation Act. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the plaintiff / opposite party instituted the said title suit for eviction against the predecessor-in-interest of the petitioners. Notices were issued upon the defendant in both ways, that is, through process server and postal process. As per report, notices were duly served upon the defendant but none appeared. As such, the suit was decreed ex-parte on September 16, 2001. The petitioners have contended that they have no knowledge of the institution of the suit but on the basis of searching slip on June 6, 2002 they came to know that the said suit was decreed ex-parte. Thereafter, they filed the application for setting aside the ex-parte decree only on June 18, 2002. In the meantime, 255 days have passed. The petitioners have contended that they have no knowledge of the institution of the suit but on the basis of searching slip on June 6, 2002 they came to know that the said suit was decreed ex-parte. Thereafter, they filed the application for setting aside the ex-parte decree only on June 18, 2002. In the meantime, 255 days have passed. That is why, they filed an application for condonation of the delay of 255 days. In the meantime, the decree was put into execution and the opposite party got possession of the premises in suit. The contention of the petitioners is that they had no knowledge of the institution of the suit. The report of the process server as well as the postal peon is collusive and for that reason, they did not get any notice. They came to know about the ex-parte decree only on the basis of the search slip, on June 6, 2002. The petitioners did not explain why they filed the search slip on that day or that they had any information about dispossession earlier. Though the possession of the suit premises was taken long time back. The petitioners have examined two P.Ws. The P.W.2 has stated that he heard from the P.W.1 that they were evicted from the suit premises. Therefore, the P.W.2 has no personal knowledge about the premises in suit. Under the circumstances, the learned Trial Judge has held that the evidence of the P.W.2 is not trustworthy. So far as the evidence of the P.W.1 is concerned, he has stated that his father, that is, the original judgment debtor was evicted from the premises in suit on May 16, 2002. He has stated that the suit was decreed on September 16, 2001 but they have no knowledge. If the original tenant was dispossessed on May 16, 2002 and they were eager to take immediate steps their conduct would have been to take appropriate steps at once. But the P.W.1 has stated that on June 5, 2002 their lawyer instructed the clerk for filing an application for search and on getting the search slip, they got the information of the ex-parte decree only on June 6, 2002. The P.W.1 has contended that the plaintiff/opposite party herein made collusion with the process server as well as with the postal peon. There learned Trial Judge disbelieved in this contention. The P.W.1 has contended that the plaintiff/opposite party herein made collusion with the process server as well as with the postal peon. There learned Trial Judge disbelieved in this contention. The taking of steps for obtaining a search slip on June 5, 2002 is not justified by the P.W.1. The petitioners could not prove that there was any collusion between the decreeholder and the process server and the postal peon. During cross-examination, the P.W.1 has stated that they were dispossessed on June 6, 2002 which is contrary to the earlier statement and which is the date for obtaining the information slip. Under the circumstances, the learned Trial Judge disbelieved in the evidence of the P.Ws. The learned Advocate for the petitioners have referred to the decision of West Bengal State Electricity Board Vs. Gilloram Gouri Shankar reported in 2006 (1) CHN (Cal) 380 and he submits that the power to set aside an ex-parte decree is discretionary and the Court shall exercise such power liberally. The Division Bench of this Hon’ble Court has held that in exercising the discretionary power, a liberal approach should be adopted. In the instant case, there was a delay of 255 days. The defendants adduced evidence over the delay which was not convincing and trustworthy at all. Therefore, the said decision will not be helpful in the instant situation. The learned Advocate for the petitioners has referred to the decision of State of Haryana Vs. Chandra Mani and ors. Reported in AIR 1996 SC 1623 and thus, he submits that in dealing with the application under Section 5 of the Limitation Act certain amount of latitude is not impermissible. This decision also, I hold, is not applicable in the instant situation inasmuch as the said decision refers to laches on the part of the State holding, inter alia, that the State is to take steps after following several formalities including note making, file pushing and passing on the buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve but the State represents collective cause of the community. This is not the situation at all. Here the lis lies between the two private parties over eviction. Therefore, this decision is not also applicable. The learned Advocate for the opposite party has referred to the decision of Essen Deinki Vs. This is not the situation at all. Here the lis lies between the two private parties over eviction. Therefore, this decision is not also applicable. The learned Advocate for the opposite party has referred to the decision of Essen Deinki Vs. Rajib Kumar reported in (2002) 8 SCC 400 to show that the Article 227 does not vest unlimited authority or prerogative in High Court to correct all orders. Only errors of law patently on record warrant creation under Article 227 are permissible even wrong decisions made by lower courts cannot be interfered with under Article 227, if such decisions have been made within the jurisdiction of the lower court. In the instant case, the learned Trial Judge has observed that the evidence adduced by the P.Ws. is not trustworthy. The learned Trial Judge has discussed the evidence and thereafter he came to a conclusion. So, the findings of the learned Trial Judge cannot be said to be perverse or without any evidence. This is not a Court of appeal but a revision under Article 227 of the Constitution of India. In view of the matter stated above, I am of the opinion that the impugned order should not be interfered with. The learned Trial Judge has exercised his discretionary power after coming to a conclusion that the evidence on behalf of the petitioners is not trustworthy. So, there is no scope of interference by exercising the revisional jurisdiction. Accordingly, the revisional application fails to succeed. It is, therefore, dismissed. Considering the circumstances, there will be no order as to costs.