Calcutta High Court (Appellete Side)
Sri Mantu Aditya & Ors vs Sri Anil Kumar Deb on 5 September, 2018
Author: Biswajit Basu
Bench: Biswajit Basu
1 02, Ct.21 05.09.2018
(aj.) CO No. 3333 of 2017 Sri Mantu Aditya & Ors.
-Vs-
Sri Anil Kumar Deb Mr. Anit Kumar Rakshit, Md. Z. Rahaman.
... for the petitioners.
Mr. Sourav Sen, Ms. Sayani Bhattacharya.
... for the opposite party.
Supplementary affidavit filed in Court today by the learned advocate appearing on behalf of the petitioners be kept on record.
This revisional application under Article 227 of the Constitution of India is at the instance of the defendants, in a suit for declaration of title and injunction and directed against the order dated June 30, 2017 passed by the learned Additional District Judge, 2nd Court, Bongaon, 24-Parganas (North) in Misc. Appeal No. 19 of 2013, whereby the learned First Appellate Court has dismissed the Misc. Appeal filed by the petitioners.
The suit was decreed ex parte on May 18, 2014 and a proceeding under Order 9 Rule 13 of the Code of Civil Procedure was initiated by the petitioners on July 30, 2014, which was registered as Misc. Case No.60 of 2004 before the learned Trial Judge. The said Misc. case was out of time, as such the petitioners filed an application for condonation of delay in filing the said 2 proceeding. The said application for condonation of delay was dismissed by the learned trial Judge by the order dated March 15, 2013.
The learned trial Judge dismissed the application for condonation of delay on the ground that the petitioner no.1 had failed to substantiate claim of his illness, on the basis of which he was seeking the condonation of delay.
The petitioners being aggrieved by the said judgment and order preferred the aforesaid Misc. Appeal No.19 of 2013. The learned appellate court affirmed the said order on the finding that there is contradiction in the evidence of P.W.1 i.e. the petitioner no.1.
Mr. Rakshit, learned advocate appearing on behalf of the petitioners submits that the learned trial Judge has committed error in holding that no medical document has been filed by the petitioners to substantiate their claim that the petitioner No. 1 is suffering from aliments. He submits that, his client has filed several medical documents, out of which only one document i.e. out patient ticket of the Gandhi Memorial Hospital, Kalyani has been marked exhibit in the proceeding, which proves that his client was suffering from ailment for the period from January, 2004 to February, 2004.
Mr. Sen, learned advocate appearing on behalf of the plaintiff/opposite party submits that there is discrepancy in the documents and the evidence of the petitioner no.1, who deposed as P.W.1 in the Misc. case.
Heard learned advocates for the parties. Perused the materials-on- record.
3
It appears that the petitioners have filed medical documents to justify the ailment of the petitioner no.1, who used to take all steps on behalf of the other defendants in the suit. It also appears on perusal of the documents annexed to the revisional application, particularly, the aforementioned out patient ticket of the hospital that the petitioner no.1 was actually suffering from ailment.
The suit was decreed ex parte on May 18, 2014. The application for setting aside the said ex parte decree was filed by the petitioners on July 30, 2014. Therefore, it appears that there was no serious laches or negligence on the part of the petitioners to respond to the said ex parte decree and to take steps for setting aside the same.
In view of the facts and circumstances of the present case discussed above, this Court finds that both the learned Courts below have failed to appreciate that the petitioners have been able to explain the cause by which they were prevented from appearing before the Court with the suit was called on for hearing.
The order impugned, therefore, suffers from material irregularity and, therefore, set aside.
C.O. No. 3333 of 2017 is allowed. No order as to costs. Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. 4 (Biswajit Basu, J.)