KANAILAL GHOSAL Vs. ENA DUTTA

JUDGEMENT

(1.) These are two Rules at the instance of the defendants-petitioners, the first one being under Section 5 of the Indian Limitation Act for condonation of delay in filing the substantive application under' Section 115 of the Code of Civil Procedure and the other one under Section 115 of the Code of Civil Procedure, calling upon the plaintiff-opposite party to show cause, as to why, upon such condonation, the order dated 10-6-72 passed by Shri N.R. Sanyal, learned Munsif, Additional Court at Sealdah, District 24-Parganas in Title Suit No. 8 of 1964, should not be set aside.

(2.) Having heard Mr. S.C. Dasgupta, Senior Government Pleader (with Mr. Himadri Sankar Mazumdar, Advocate), appearing on behalf of the defendants-petitioners, and Mr. Radhakanta Bhattacharya, Advocate (with Mr. Madan Mohan Ghosh, Advocate), appearing on behalf of the plaintiff-opposite party: and on going through the averments made in the petition as also the affidavits filed on behalf of the respective parties, I hold that there is a considerable force behind the submission of Mr. Dasgupta for condonation of delay. The application under Section 115, Civil Procedure Code is out of time by about eleven days and the reasons for the same are incorporated in paragraphs 13 and 14 of the petition on which the Rule under Section 5 of the Indian Limitation Act was issued, namely that the petitioners had no knowledge about the order dated 10-6-72 passed by the learned Munsif at Sealdah until they came to know about the same for the first time on 9-9-72 from their learned Advocate in the Sealdah Court, whereafter they obtained the relevant certified copies on 14-9-72 and handed over the papers to their learned Advocate at Sealdah for filing the appeal there. On 18-9-72 the said learned lawyer informed the petitioner No. 2 that no appeal lies against the order, and accordingly the said petitioner No. 2, without any unnecessary delay, handed over the papers to the learned Advocate in High Court for moving the application under Section 115 of the Code of Civil Procedure. The revisional application was ultimately filed on 19-9-72, after a delay of about eleven days. It was submitted that this was bona fide and may be condoned as otherwise the petitioners will suffer irreparable loss. The opposite party in Paragraphs 8 and 9 of her affidavit-in-opposition denied the petitioners' statements. In their affidavit-in-reply, the petitioners denied the allegations. At the time of the hearing of the Rule, it was further contended on behalf of the plaintiff-opposite party that from Paragraph 4 of the application filed by the opposite party in Title Execution Case No. 45 of 1969 in the Court of the Additional Munsif, Sealdah, a copy whereof was served on the petitioners' lawyer on 18-7-72, it appears that there is a reference to the rejection of the petitioners' application under Sections 17-E and 3 (A) of Section 4 of the second amendment of the West Bengal Premises Tenancy Act on 10-6-72. A written objection to the same was filed by the petitioners on 3-8-72, denying the allegations and as such the petitioners had knowledge of the order dated 10-6- 72. The learned Government Pleader submitted that from the mere signature of the learned lawyer receiving the notice or the objection filed by him, it should not be presumed that the defendant had the requisite knowledge and in any event these averments were not made in the affidavit-in-opposition to enable the defendants-petitioners to controvert the same in the affidavit-in-reply. On a consideration of all the materials, I hold ultimately that there is sufficient cause within the ambit of Section 5 of the Indian Limitation Act and the resultant delay of eleven days in filing the connected revisional application should ex debito justitiae be condoned. The Rule under Section 5 is accordingly made absolute without costs and the delay in filing the connected application under Section 115, C. P. C. is hereby condoned.

(3.) The facts leading on to the substantive Rule under Section 115, Civil Procedure Code can be put in a short compass. The plaintiff-opposite party filed on 24-7-61, in the First Court of the learned Munsif at Sealdah, a Title Suit, being Title Suit No. 480 of 1961, which was transferred to the Additional Court of the Munsif at Sealdah and renumbered as Title Suit No. 8 of 1964, against one Sailendra Nath Ghoshal, who was the predecessor-in-interest of the present defendants-petitioners, for khas possession of the suit premises on eviction therefrom and mesne profits. It was averred inter alia that by a registered deed dated the 16th January, 1961, the plaintiff purchased the suit premises No. 89-A Gar-par Road, in the ground floor whereof the said Sailendra Nath Ghoshal was a tenant at a monthly rent of Rs. 28/-. As the plaintiff required the same for her own use, the said tenant was asked to quit and vacate the suit premises. The suit was contested and the learned Munsif. Additional Court at Sealdah ultimately decreed in favour of the plaintiff on 21-7-64. On appeal by the predecessor-in-interest of the defendants, it was allowed on 13-5-65, wherefrom a second appeal being S. A. No. 1502 of 1965, was filed in the High Court by the plaintiff. Mr. Justice S.K. Dutt, who heard the second appeal sent down the records to the Court of Appeal to decide the issue raised as to whether the plaintiff was the Benamidar of her father in respect of the suit premises. The learned Subordinate" Judge on remand found in favour of the plaintiff and the appeal came up for hearing before the High Court. Mr. Justice S.K. Dutt, by his order dated 16-6-69 ultimately allowed the appeal and restored the decree. An appeal under clause 15 of the Letters Patent, being L. P. A. No. 14 of 1969, was preferred by the defendants therefrom. During the pendency of the said appeal, the defendant-appellant died and his heirs and legal representatives, who are the present defendants-petitioners, were substituted. On 17-4-70, the petitioners filed an application under Section 17-E of the West Bengal Premises Tenancy Act, as amended by the Amending Act XVIII of 1970, in the trial Court and by way of abundant precaution also filed another application under Section 17-E in L. P, A. No. 14 of 1069 for setting aside the decree on the ground that the decree-holder had not yet taken khas possession of the suit premises. The plaintiff had in the meanwhile started the execution case, being Title Execution Case No. 45 of 1969, for taking khas possession of the suit premises. The Letters Patent Appeal ultimately was dismissed on 3-2-72 by Mr. Justice Arun Kumar Mukherjea and Mr. Justice M. M. Dutt and while dismissing the appeal their Lordships also dismissed the application under Section 17-E filed in the High Court without granting any leave or direction with regard to the application in the trial Court. On 10-6-72 the application filed under Section 17-E of the West Bengal Premises Tenancy Act came up for hearing before the learned Munsif, who dismissed it holding that "in view of the Jt. passed by the Hon'ble Court, Calcutta the petition under Section 17-E be rejected without costs". The 'said order has been impugned and forms the subject-matter of the present Rule. An affidavit-in-opposition was filed on behalf of the plaintiff-opposite party challenging the various statements made in the body of both the petitions filed on behalf of the defendants-petitioners and an affidavit-in-reply thereto was filed by the plaintiff-opposite party.