Syamal Kanti Chakrabarti, J. - (1.) THE present revisional application under Article 227 of the Constitution has been preferred challenging the legality and propriety of order no. 96 dated 19.02.2005 passed by the learned Civil Judge (Junior Division), 2nd Court, Asansol in Misc. Case No. 19 of 2001 arising out of Title Suit No. 137 of 1998.
(2.) IT is submitted on behalf of the petitioner that the plaintiff/ opposite party filed Title Suit No. 137 of 1998 for a declaration that he is the owner and in possession of the A schedule property and has easementary right over B schedule property which is part and parcel of A schedule property and that the defendant no. 1/ petitioner has no right, title and interest over the B schedule property save and except the easementary right. But they are trying to block the passage over the B schedule property by making a construction and blocking the window of the suit premises of the plaintiff. The defendant/ petitioner did not contest said suit after getting assurance from the plaintiff/ opposite parties that the same would be withdrawn but ultimately it proceeded ex parte and decreed on 19.04.1997 declaring the plaintiff/ opposite partys easementary right over the B schedule property as well as permanent injunction restraining the defendant/ petitioner from making any construction over the suit property and to remove the construction it made. The petitioner came to know from her learned Advocate about such ex parte order on 13.07.2001 and filed an application under Order 9 Rule 13 CPC which was registered as Misc. Case No. 19 of 2001 along with an application under Section 5 of the Limitation Act, 1963 for condonation of delay in filing the said restoration application. But the said application for condonation of delay was dismissed by the learned Court below on 20.03.2004 as none moved the same on call. Thereafter, the petitioner filed an application under Section 151 CPC against such ex parte order of dismissal of the application under Section 5 of the Limitation Act filed by the petitioner praying for exercise of inherent power of the Court but the said prayer was also rejected by order no. 96 dated 19.02.2005 which has now been assailed. It is contended on behalf of the defendant/ petitioner that the learned Court below has arbitrarily rejected the prayer and refused to exercise his inherent power conferred under Section 151 CPC without assigning any reason or discussing as to whether there was sufficient cause for reconsideration or modification of such order. From this point of view the impugned order of the learned Court below is perverse and is liable to be set aside.
(3.) LEARNED lawyer for the plaintiff/ opposite party has contended that the petitioner/ defendant is intentionally dragging the matter without reasonable cause which will be reflected from her conduct and so the learned Court below has rightly rejected the prayer which should not be interfered with. While considering such petition under Section 151 CPC the learned Court below has taken into account that the petition under Section 5 of the Limitation Act filed by the defendant/ petitioner was initially fixed for hearing on 24.04.2002 and thereafter the hearing was adjourned for as many as fifteen times. On 20.03.2004 the learned Counsel for the petitioner filed Hazira but in spite of repeated call did not appear on account of his engagement in another matter being Misc. Case being no. 21 of 2000 in the Court of learned Erstwhile Munsif, Asansol. The preoccupation of the learned Advocate after granting 15 adjournments was not taken into consideration by the learned Court below as a sufficient ground for further adjournment and as such he was not inclined to adjourn the matter. Moreover, the order was passed on 20.03.2004 but the petitioner filed the application under Section 151 CPC on 09.06.2004 after long lapse of three months without assigning any cogent reason for such further delay. Therefore, he has rejected the application under Section 151 CPC and dismissed the application on contest without cost.;