PRASENJIT MANDAL,J. - (1.) CHALLENGE is to the Order No.37 dated February 18, 2010 passed by the learned Civil Judge (Junior Division), 2nd Court, Contai in Misc. Case No.16 of 2005 arising out of Title Suit No.247 of 2001.
(2.) THE plaintiff is the petitioner of the application. He instituted a suit being Title Suit No.247 of 2001 for declaration, injunction, recovery of possession and other reliefs against the opposite party in respect of the suit property as described in the schedule of the plaint. THE defendant/opposite party was contesting the said suit and he took several adjournments to file a written statement. Ultimately, he could not file any written statement. Even he did not file any show-cause as to why the suit should not be heard ex parte against him. Ultimately, the suit was heard ex parte on June 14, 2001 and then, the suit was decreed ex parte on August 31, 2004. Thereafter, on June 23, 2005, the opposite party filed an application under Order 9 Rule 13 of the CPC for setting aside the ex parte decree along with an application under Section 5 of the Limitation Act for condonation of delay. Both the applications under Section 5 of the Limitation Act and under Order 9 Rule 13 of the CPC were allowed by the impugned order. Being aggrieved, the plaintiff/petitioner herein has preferred this revisional application. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Advocates for the parties and on going through the materials-on-record, I find that the learned Trial Judge has committed flagrant errors of law in disposing of the said two applications. In order to consider the application under Section 5 of the Limitation Act and the Misc. Case under Order 9 Rule 13 of the CPC, the learned Trial Judge was required to see whether the opposite party was prevented by any sufficient cause from appearing when the suit was called for hearing. As indicated above, the defendant/opposite party herein was contesting the said suit by taking steps praying time to file a written statement from time to time and the Court granted several adjournments to file a written statement. Ultimately, when the defendant did not take any step, the learned Trial Judge directed the defendant to show-cause by April 15, 2004 as to why the suit shall not be heard ex parte against him for not taking steps. In spite of such orders, the defendant did not take any step. Nor did he file any show-cause. Ultimately, on June 14, 2004, the evidence was recorded ex parte as the opposite party did not take any step on the previous occasion. The evidence was completed on that day. But, the learned Trial Judge decreed the suit ex parte on August 31, 2004.
(3.) THE application for setting aside the decree was filed only on June 23, 2005 along with an application under Section 5 of the Limitation Act. This being the position, the opposite party was required to show that he was prevented by sufficient cause from appearing when the suit was called for hearing.;