- (1.) THE petitioner is the defendant in Ejectment Suit no. 126 of 2006. He received summons on 23/9/2006 and entered appearance on 16/10/2006. He did not file written statement within the time frame stipulated in Order VIII Rule 1, Civil Procedure Code (hereafter the Code).
(2.) ON 8/11/2006, the petitioner applied for time to file his written statement. By order no. 3 dated 8.11.2006, the learned Civil Judge granted him time till 19/2/2007 to file the written statement. The petitioner failed to prepare his written statement for absence of certain relevant documents and, accordingly, applied for further extension of time on 19/2/2007. The learned Judge-in-charge on 19/2/2007, by order no. 4, rejected the petitioner's prayer. In the mean while, however, the petitioner having filed an application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997, he continued to participate in the proceedings that followed without applying for recall of the order dated 19.2.2007. It is claimed that the petitioner's learned Advocate in the Court below failed to notice that the application for extension of time to file written statement had been rejected by order no.4 dated 19.2.2007. Be that as it may, the petitioner applied on 4.12.2009 for vacating the order dated 19.2.2007 by filing an application under Section 151 of the Code. During the pendency of the said application, he filed the written statement on 23.4.2010.
(3.) THE learned Judge considered the application under Section 151 of the Code dated 4.12.2009 and upon hearing the parties, by order no. 25 dated 24.6.2010, rejected the same on contest. THE written statement filed by the petitioner was not accepted and the suit was directed to be heard ex-parte against him. This order forms the subject matter of challenge in the present application under Article 227 of the Constitution of India. Mr. Chatterjee, learned Advocate for the petitioner contended that unless this Court exercises power under Article 227, the petitioner would suffer irreparable loss and injury, for he would not be able to raise his defence against the plaint case. It is further contended that there was no want of diligence on the part of the petitioner who participated in the proceedings of the suit by filing application under Section 7(2) of the Act of 1997. It was only because of the learned Advocate's remissness in not noticing that the application praying for extension of time had been rejected on 19.2.2007 that the petitioner finds himself in a precarious position of losing his right to defend the suit. By relying on several decisions of the Supreme Court as well as a decision of a learned Single Judge of this Court reported in 2009 (2) CHN 54, he prayed for setting aside of the order under challenge on such terms as may be imposed by this Court.;