- (1.) This application is at the instance of the plaintiff and is directed against the order No.114 dated January 3, 2011 passed by the learned Civil Judge (Junior Division), Second Court, Sealdah in Title Suit No. 595 of 1993.
(2.) The short fact is that the plaintiff instituted a suit being Title Suit No. 595 of 1993 for ejectment, damages and other reliefs against the opposite party before the said Court. THE opposite party entered appearance into the said suit on January 17, 1994. THEreafter, the defendant prayed for several adjournments to file a written statement. Ultimately, he did not care to file his written statement and as such, the suit was decreed ex parte against the opposite party on September 8, 1995. Thereafter, the defendant filed an application under Order 9 Rule 13 of the C.P.C. but that application was dismissed. The defendant preferred a misc. appeal and he got the order of setting aside the ex parte decree from the Appellate Court. Thereafter, the plaintiff filed an application under Article 227 of the Constitution of India before this Hon'ble Court and that application was disposed of directing the learned Trial Judge to dispose of the suit by December, 2008 without interfering the order of the learned Lower Appellate Court. Then the defendant filed an application under Section 17(2) and (2A) of the West Bengal Premises Tenancy Act, 1956 along with an application under Section 5 of the Limitation Act. The said application under Section 5 of the Limitation Act was allowed by the impugned order. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained.
(3.) Upon hearing the learned Counsel for the parties and on going through the materials -on -record, I find that the suit for recovery of possession against the opposite party was filed by the petitioner in 1993. The defendant appeared in the suit on January 17, 1994. The defendant took several adjournments but did not file any written statement. Ultimately, the suit was decreed ex parte on September 8, 1995. It may be recorded herein that during these period since entering appearance, that is, from January 17, 1994 to September 8, 1995, the defendant did not file any application under Section 17(2) and (2A) of the West Bengal Premises Tenancy Act, 1956. Thereafter, another chapter of the proceeding began, that is, steps for setting aside the decree were taken by the defendant. The matter went up to the Hon'ble Court as indicated above. This Hon'ble Court directed in the CO. No.4351 of 2006 to the office to communicate the order to the learned Civil Judge, Second Court at Seaidah through a special messenger. It is the contention of the defendant that they came to know about the receipt of the record only on July 7, 2008 and within one month from that date, that is, on July 1, 2008 the defendant/opposite party filed an application under Section 17(2) and (2A) of the West Bengal Premises Tenancy Act, 1956 along with an application under Section 5 of the Limitation Act. The contention of the defendant is that his lawyer did not inform him and since the matter was pending before the Hon'ble Court, Calcutta at the instance of the plaintiff, he was quite in the dark about the result of the revisional application preferred by the plaintiff. He came to know when he was informed by the learned Trial Court on June 7, 2008. Thereafter, he filed the application under Section 17(2) and (2A) of the West Bengal Premises Tenancy Act, 1956. But there was an initial delay from the date of appearance on January 17, 1994 to September 8, 1995 and as such, he filed the application under Section 5 of the Limitation Act. The learned Trial Judge has exercised his discretionary power in allowing the application under Section 5 of the Limitation Act under the above circumstances.;