Prasenjit Mandal, J. - (1.) THIS application is at the instance of the plaintiff and is directed against the Order No.51 dated March 22, 2006 passed by the learned Civil Judge (Junior Division), 1st Court, Barasat in Title Suit No. 298 of 1996 thereby rejecting an application under Section 151 of the C.P.C. filed by the plaintiff.
(2.) THE plaintiff / petitioner herein instituted a suit being Title Suit No.298 of 1996 against the defendants / opposite parties for a decree of declaration that the plaintiff has right, title and interest in the suit property as described in the schedule to the plaint and the entries in the record of right are wrong and not binding upon him. THE defendants were contesting the said suit denying the material allegations raised in the plaint. On July 31, 2002, the record was put up at the instance of the plaintiff and an application wad filed for dismissal of the suit for non-prosecution. That application was considered by the learned Trial Judge and the suit was dismissed for non-prosecution on July 31, 2002. THEreafter, the petitioner filed an application under Order 9 Rule 9 of the C.P.C. for setting aside that order and the matter continued up to April 3, 2004, when the petitioner filed the instant application under Section 151 of the C.P.C. for setting aside the order dated July 31, 2002. That application was rejected by the impugned order. Being aggrieved, this application has been preferred by the plaintiff. Now, the point for consideration is whether the impugned order should be sustained. Upon hearing the learned advocate for the petitioner and on going through the materials on record, I am of the opinion that the impugned order does not suffer from perversity at all. The plaintiff / petitioner herein has contended that due to fraud practised upon him by one Pradip Ghosh, he signed on certain documents and papers and those were filed in the said suit and on the basis of such papers, the said suit was dismissed for non3 prosecution on July 31, 2002. The petitioner has contended that he was not aware of the date, July 31, 2002, that he was not present on that day and that he had no intention to pray for dismissal of the suit for non-prosecution.
(3.) BUT, the application for dismissal of the suit for nonprosecution was filed on the ground that the matter was settled amicably. The petitioner was, therefore, required to prove that fraud, undue influence etc. were practised upon him. The petitioner filed an application under Order 9 Rule 9 for setting aside the order of dismissal dated July 31, 2002 only on March 21, 2003, that is, after about nine months from the date of dismissal of the suit. His contention is that he was not aware of the fact and he came to know about the dismissal of a few days back prior to the date April 3, 2004 and he found that the blank papers signed by him and the vakalatname were utilised against him causing dismissal of the said suit. The learned Trial Judge has rightly disbelieved such ground stating the reasons to the effect that as per Order No.28 dated July 8, 2002, the next date was fixed on September 6, 2002. So, if the petitioner was unaware of the date, July 31, 2002, he was expected to take appropriate steps on September 6, 2002 in the said title suit and had he appeared on that day, he must have known the orders passed on July 31, 2002. This is, I think, rightly observed by the learned Trial Judge.;