Calcutta High Court (Appellete Side)
Raghu Nath Basak vs Smt. Munni Devi Jaiswal on 27 March, 2014
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Before:
The Hon'ble Justice Debangsu Basak
C.O. No. 3195 of 2011
Raghu Nath Basak
Vs.
Smt. Munni Devi Jaiswal
For the Petitioner : Mr. Rabindra Nath Mahato, Advocate
Heard on : March 25, 2014
Judgment on : March 27, 2014
DEBANGSU BASAK, J.
The revisional application was directed against the Order dated June 3, 2011 passed by the Civil Judge (Junior Division) Additional Court at Sealdah, District 24-Parganas (South) in Miscellaneous Case No. 21 of 2009 arising out of Ejectment Suit No. 351 of 2004.
By the order impugned the learned Judge allowed the application under Oder IX Rule 13 of the Code of Civil Procedure, 1908 filed by the defendant opposite party.
By an Order dated September 15, 2011 this Hon'ble Court was pleased to stay the operation of the order impugned and further proceedings of Ejectment Execution Case No. 7 of 2009 until further orders. The petitioner was directed to serve a copy of the application on the opposite party. By an Order dated December 6, 2012 it was recorded that, the petitioner dispatched notice along with the copy of the application by registered post with acknowledgement due card to the opposite party. Since the petitioner did not receive the acknowledgement due card back it sought leave to serve afresh which was granted. The petitioner served the opposite party thereafter. An affidavit of service was filed showing that the petitioner caused service of the application on the opposite party.
Mr. Rabindra Nath Mahato, learned Advocate for the petitioner submitted that, the learned Judge acted with material irregularity in allowing the application after finding that the opposite party failed to produce any cogent evidence in support of the fact that during the entire relevant period she was at Kanpur and fell sick. The learned Court also returned a finding that the conduct of the opposite party was not bona fide. In spite of such finding the learned Judge ought not to have allowed the application.
He also submitted that, the opposite party was deliberately avoiding the Court so as to delay the disposal of a suit for ejectment. In fact the suit for ejectment was decreed on March 4, 2005 ex parte. The opposite party applied for recalling of the decree under Order IX Rule 13 which was allowed by consent of the parties on December 2, 2006. On behalf of the petitioner it was submitted that, the petitioner gave consent to set aside the ex parte decree dated March 4, 2005 in order to expedite the disposal of the suit. After the ex parte decree was set aside the opposite party applied under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 which was allowed. The opposite party was directed to deposit a sum of Rs.85,634/-. The opposite party did not deposit such sum till date. The petitioner, thereafter, applied under Section 7(3) of the West Bengal Premises Tenancy Act, 1997 which was allowed by an Order dated May 2, 2009. The defence of the opposite party was, therefore, struck out.
The suit was fixed for peremptory hearing on November 6, 2008, November 27, 2008 and on January 1, 2009. The opposite party in their application under Order IX Rule 13 claimed that the opposite party was out of the city on and from September 2, 2009. The decree was dated April 8, 2009. Assuming that the statement made by the opposite party in the application under Order IX Rule 13 to be correct, she did not explain her non-appearance on April 8, 2009. In fact there was no explanation for her non-appearance during the relevant period at all. The evidence led by the opposite party in that regard was disbelieved. In spite of disbelieving such evidence it was not proper on the part of the learned Judge to allow the application.
I have considered the impugned order, the materials on record and the submissions made on behalf of the petitioner. In spite of notice the opposite party did not appear at the time of hearing. The suit for ejectment was pending since 2004. The suit was decreed ex parte on March 4, 2005. Such ex parte decree was set aside by consent on December 2, 2006. Subsequent thereto the application of the opposite party under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 was allowed and the opposite party was permitted to deposit a sum of Rs.85,634/-. The opposite party however did not deposit such sum. The petitioner, therefore, became entitled to apply under Section 7(3) of the West Bengal Premises Tenancy Act, 1997 for striking out the defence of the opposite party. The defence of the opposite party was struck off by the Order dated February 9, 2009. The opposite party did not challenge the Order dated February 9, 2009 and the same attained finality.
For the purpose of having the ex parte decree dated April 8, 2009 set aside, the opposite party was required to explain her conduct on November 6, 2008, November 27, 2008, January 21, 2009 and April 8, 2009.
The opposite party led evidence. The opposite party examined herself as the only witness. She claimed that, she went out of Kolkata to accompany her husband on and from September 2, 2009. Assuming that to be correct, September 2, 2009 was beyond the date of the decree dated April 8, 2009. The opposite party, therefore, was in Kolkata till September 2, 2009 and during the period when the dates for peremptory hearing were fixed by the learned Judge ultimately leading to the passing of the decree. In her evidence the opposite party claimed that, since she started residing at Kanpur with her husband on and from September 2, 2009 she called her Advocate from Kanpur for taking adjournment on November 6, 2008. That evidence was unbelievable. A person could not, at the present state of the technology, travel back in time from September 2, 2009 to instruct her lawyer on November 6, 2008 to take an adjournment. The entire evidence being unbelievable the learned Judge acted with material irregularity in finding that the conduct of the opposite party was not with malafide intention. There was no basis for the application under Order IX Rule 13 of the Code of Civil Procedure, 1908. The opposite party did not explain her absence on the dates of hearing as well as on the date when the ex parte decree was passed. That being the position of the application under Order IX Rule 13 was required to be dismissed.
In the premises the impugned Order dated June 3, 2011 is set aside. Miscellaneous Case No. 21 of 2009 is dismissed. The interim order passed on September 15, 2011 in the present revisional application is vacated.
C.O. No. 3195 of 2011 is allowed without any order as to costs.
[DEBANGSU BASAK, J.]