KALIDAS MUKHERJEE, J. - (1.) This is an application under Article 227 of the Constitution of India assailing the order No. 30 dated January 28, 2009 and order No. 32 dated February 18, 2009 passed by the learned Civil Judge (Junior Division), 1st Court at Sealdah in Ejectment case No. 30 of 2005.
(2.) The case of the defendant/petitioner herein is that a suit for Ejectment was instituted against him by the plaintiff/O.P. herein in the learned Court below. The suit was fixed for tendering affidavit-in-chief of the defendant (D.W. 1). On January 28, 2009 the defendant reached the Court at 11.05 A.M. when he found that at about 11.00 A.M. the learned Judge of the Court below closed the evidence of the defendant and fixed a date for argument. Immediately thereafter the defendant filed a petition under Section 151 of the Code of Civil Procedure praying for recalling the order closing the evidence of the defendant. The learned Judge of the Court below on hearing both sides was pleased to reject the petition under Section 151 of the Code of Civil Procedure.
(3.) The learned Counsel appearing for the petitioner herein submits that due to traffic jam the defendant could not reach the Court and immediately after the order was passed by the learned Court below, the defendant filed an application under Section 151 of the Code of Civil Procedure praying for recalling that order. The learned Counsel submits that it was the circumstance beyond control and in this connection the learned Counsel has referred to and cited the decisions reported in (2001) 9 SCC 117 [Kewal Krishan Vs. Harnek Singh (Dead) by LRS. ] and (2009)2 SCC 198 [B.P. Moideen Sevamander and another Vs. A. M. Kutty Hassan]. It is contended that the past conduct of the defendant as referred to by the learned Judge of the Court below cannot be taken into consideration and, in such a case, for the ends of justice another chance should be given to the defendant to file affidavit-in-chief within a specified time.;