JUDGMENT Harish Tandon, J. 1. This revisional application is filed at the instance of the defendant/petitioner who suffered an ex parte decree passed by the learned Judge, 4th Bench, City Civil Court at Calcutta. The plaintiff/opposite party laid his claim in the said ejectment suit as receiver appointed by the High Court in F.M.A.T. No. 357/1996. The aforesaid ejectment suit was instituted against two defendants including the petitioner being the joint tenants in respect of a room situated at first floor at premise No. T-17/C, Biplobi Anukul Chandra Street, Calcutta 700 072, at a monthly rental of Rs. 17/- payable according to the English calendar. 2. The plaint further proceeds that the defendants have sublet, assigned, transferred and parted with possession of the said tenanted room without the consent in writing of the landlord. 3. One of the defendants who is a petitioner in the revisional application filed an application under Order 9 Rule 13 of the Code for setting aside the said ex parte decree which was registered as Misc. Case No. 174/2006 before the Small Causes Court at Calcutta. The said application is founded on the assertion that the factum of an exparte decree was for the first time revealed in the reports submitted by the Police Officer in connection with one of the Criminal Case on March 07, 2006, which was subsequently confirmed on further investigation on June 16, 2006. 4. The petitioner further asserts that the summons of the suit was never served upon him and, therefore, the exparte decree, so passed, is not sustainable. 5. In the affidavit-in-opposition to the said application the plaintiff/opposite party denies the aforesaid contention of the petitioner and took a preliminary objection that the said application at the instance of the petitioner through constituted attorney is not competent. 6. The further objection which could be revealed therefrom is that the said objection is filed beyond the period of limitation so prescribed and in absence of any application for condonation of delay; the same is liable to be rejected. 7. On the basis of the aforesaid stand, the parties adduced evidence and in the examination-in-chief the petitioner maintains the stand as has been taken in the said application under Order 9 Rule 13 of the Code. 7. On the basis of the aforesaid stand, the parties adduced evidence and in the examination-in-chief the petitioner maintains the stand as has been taken in the said application under Order 9 Rule 13 of the Code. In cross-examination it is said that after hearing that an exparte decree passed, an information slip was obtained and the said fact was confirmed therefrom in the month of June, 2006. 8. The cross examination of the plaintiff/opposite party revealed that the opposite party was present when the petitioner received the service of summons from the bailiff but he did not become the witness to the said service of summons. It is categorically asserted that both the defendants resided at the suit premises at the time of service of summons. 9. The first point which emerges from the respective submissions is whether the petitioner under Order 9 Rule 13 could be thrown on the touchstone of Limitation Act as has been taken beyond the period of 30 days as provided under Article 123 of the Limitation Act. The other ancillary point which emerges during the argument is whether an application under Section 5 of the Limitation Act is mandatory or the Court in absence thereof would condone the delay if there is a sufficient material before the Court. 10. Before proceeding to deal with the aforesaid case it was relevant to quote Article 123 of the Limitation Act, 1963 which reads thus: Article 123 11. On a meaningful reading of the said provision it is deciphered that the application to set aside the decree passed ex parte should be made within 30 days from the date of the decree or where the summons were not duly served within 30 days from the date of knowledge of the said decree. 12. The embargo created under Section 123 of the Limitation Act is applicable on two eventualities. Firstly, where the summons is served, the application for setting aside the ex parte decree should have been filed within 30 days from the date of the said decree, secondly if the summons is not served then such application should be made within 30 days from the date of the knowledge of the said decree. 13. The petitioner has proceeded on the second limb of the said provision. 13. The petitioner has proceeded on the second limb of the said provision. According to the petitioner, there was no service of summons upon him and the fact of passing of ex parte decree was confirmed on obtaining the information slip on June 17, 2006 and therefore, the said application filed within 30 days from the date of the said knowledge, cannot be dismissed on the ground of being barred by limitation. 14. The imputation of the knowledge as would be gathered in the evidence as well as the statement made in the said application is after an investigation being made and not from the date when he heard of such ex parte decree being passed against him. The petitioner could only come out the rigour from the provisions contained under Section 123 of the Limitation Act if it is shown that the summons of the suit was not served upon him. Both the Courts have concurrently found that the service of the summons was affected upon the petitioner. 15. Let me now examine whether the trial court has recorded any reason for arriving at such finding which required a detailed scrutiny. 16. The trial court recorded that the summons sent through a registered post has been duly served upon the other defendant, namely, Golam Rasool Shah whereas the bailiff report indicates that the summons was served upon the agent of the petitioner and the son of the other defendant. 17. The appellate court without adverting to the aforesaid point proceeded to dispose of the appeal merely on the ground that the application under Order 9 Rule 13 of the Code, is not maintainable as it is not proceeded with an application under Section 5 of the Limitation Act. 18. It is culled out from the finding made by the trial court that service by a registered post could not be affected upon the petitioner. Furthermore, the service through a process server is affected upon the agent of the petitioner. 19. The aforesaid finding of the trial court is contrary to what has been said by the opposite party. The opposite party in cross-examination categorically asserted that when the bailiff went to serve the summons, he was personally present but he did not figure as a witness therein. 19. The aforesaid finding of the trial court is contrary to what has been said by the opposite party. The opposite party in cross-examination categorically asserted that when the bailiff went to serve the summons, he was personally present but he did not figure as a witness therein. On the second limb it is categorically stated that both the defendants resided at the suit premises at the time of service of summons. If according to the opposite party, the petitioner was present at the time of service of the summons it is improbable and unbelievable that the bailiff served the summons upon the agent of the petitioner. There is no finding recorded by the trial Court relating to the service of summons by the registered post either upon the agent of the petitioner or personally upon him. 20. The contention of the opposite party that summons upon the defendant No. 2 was duly served can not lead to any presumption that the summons was also served upon the defendant No. 1. 21. As indicated above, the petitioner categorically asserts that he received the confirmed knowledge of the said ex parte decree on June 17, 2006 and an application under Section Order 9 Rule 13 of the Code is taken out within 30 days therefrom, the said application should not be dismissed on the score of being barred by limitation. 22. The ancillary point whether the making of the application for condonation of delay is mandatory or the Court is denuded of its power to condone the delay in absence of an application if there exists the sufficient material for condonation of delay, has become academic. 23. The opposite party, though feebly, but took a plea of several ability of the decree. According to him an ex parte decree could only be set aside against such of the defendants upon whom the service of summons could not be affected but remains binding upon the rest of the defendants who did not approach the Court for setting aside the said ex parte decree. 24. The suit for eviction is filed against both the defendants treating them as joint tenants. The law is settled that if the decree is inseverable and joint even if the same is set aside at the instance one of the defendants, where other are not challenged, it would enure to the benefit of the others as well. 24. The suit for eviction is filed against both the defendants treating them as joint tenants. The law is settled that if the decree is inseverable and joint even if the same is set aside at the instance one of the defendants, where other are not challenged, it would enure to the benefit of the others as well. Severability of the decree is one of the factors to be considered. 25. The learned advocate appearing for the opposite party cited various judgments which is required to be dealt with. 26. In case of Mahabir Singh -vs- Subhash and Ors. reported in (2008) 1 WBLR (SC) 591, the Apex Court proceeded on the basis that the service of the summons was affected upon the respondent who did not appear in the suit. An application for setting aside the abatement was taken out after a gap of 10 years. In the said case the respondent therein admitted in the cross examination that he approached the appellant for not giving effect to the said ex parte decree one and half year prior to the filing of the said application. The said judgment is not of any help to the plaintiff/opposite party for the simple reason that in the instant case the knowledge was imputed as on June 17, 2006 and an application was taken out within 30 days therefrom. 27. In case of Probir Kumar Burman -vs- Kashi Nath Das reported in 2008 (3) CHN 55 , the Single Bench of the Court held that in absence of a explanation for the delay in taking out an application for review within the statutory period of limitation the Court should not condone the delay. As I have already held that the application for setting aside the ex parte decree cannot be treated to have been filed beyond the period of limitation and, therefore, the said case is not applicable in the facts of the present case. 28. In case of Eureka Forbes Limited -vs- Debts Recovery Appellate Tribunal, West Bengal and Andaman and Nicobar Islands & Ors. reported in 2002 (1) CHN 63 , it is held that the ex parte decree cannot be set aside merely on the ground that a strong case on merit is made out, at the time of consideration of an application for setting aside the ex parte decree. reported in 2002 (1) CHN 63 , it is held that the ex parte decree cannot be set aside merely on the ground that a strong case on merit is made out, at the time of consideration of an application for setting aside the ex parte decree. In the given facts of the said case it was found that even after coming to know the ex parte decree, several other proceedings were initiated and after having unsuccessful therein a plea of non advice by the lawyer who conducted of such proceedings for filing an application for setting aside the ex parte decree was taken. In such perspective it is held that the aforesaid plea is not tenable. 29. In support of his contention that the Court exercises the discretion to set aside the decree which should not be readily interfered in the revisional application, the citation is made to the Division Bench judgment of this case in Dipak Das -vs- Nemai Das reported in 2012 (3) CLJ (Cal) 396. It would be profitable to quote para 11 of the said judgment which runs thus: We are akin to the well-settled principle of law on the liberal approach in case of condonation of delay or restoration of a matter. However, some justification (may not be so full proof) should be there that would impress the Court as to the bonafide of the applicant. A litigant, whose prayer is based on incorrect premise that is far from truth, is not expected to deserve discretion to be exercised in his favour. The decisions cited at the Bar would be of no assistance to a litigant who deliberately failed to contest the proceeding and approach the Court for undoing the settled thing that too, after years together. If this is permitted it would not only disturb the sanctity of a judgment but also disturb the smooth running of the justice delivery system. The appellants, in our view, do not deserve any sympathy from this Court. We are not at all impressed with the case made out by the appellants that would deserve interference at our end. 30. There is no dispute to proposition as has been laid down by the Division Bench in the said judgment. A person who has not come with a bona fide plea, does not deserve any discretion to be exercised in his favour. 30. There is no dispute to proposition as has been laid down by the Division Bench in the said judgment. A person who has not come with a bona fide plea, does not deserve any discretion to be exercised in his favour. I am afraid this is not a case in the facts of the instant revisional application. 31. The service of summons is not affected upon the petitioner of the instant revisional application and once it is proved, the Court is bound to set aside the ex parte decree and there is no question of any discretion or the sympathy to be shown by the Court. 32. As a last resort the learned advocate for the opposite party submits that the supervisory jurisdiction under Article 227 of the Constitution should not be invoked against the concurrent findings of facts. 33. It is no doubt true that the revisional court should not usurp the power of the first appellate court where the matter is at large and entire issue is before the said court. Concurrent findings of fact should not be interfered in exercise of the revisional jurisdiction unless such finding is based on no evidence, perverse and de hors the pleadings of the parties. 34. In view of the discussions made above, the ex parte decree passed on October 29, 2005 is not sustainable and is, therefore, set aside. 35. The ejectment suit No. 188/2004-E is restored to its original position and number. 36. The petitioner is directed to file an application under Section 7(1) & (2) of the West Bengal Premises Tenancy Act, 1997 within two weeks from date. 37. The petitioner is also directed to file written statement within three weeks from date before the Trial Court. 38. The time limit fixed hereinabove is peremptory and mandatory. 39. The Trial Court is requested to dispose of the suit as expeditiously as possible, without granting unnecessary adjournment to either of the parties, preferably within four months from the date of communication of this order. 40. For abundant precaution, it is, however, made clear that the consideration, under Order 9 Rule 13 of the Code of Civil Procedure, has no bearing on the determination of the suit and any observation made hereinabove shall not have any persuasive effect upon the Trial Court at the time of disposal of the said suit on merit. 41. The revisional application is allowed. 41. The revisional application is allowed. 42. However, there shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis. Application allowed