- (1.) The application filed under Order IX Rule 13 of the C. P. C. was rejected by the learned trial Judge on the ground that the petitioner has failed to substantiate sufficient cause for recalling of the said decree. The learned Appellate Court also concurred with the said finding. It appears that a suit for eviction was filed in the year 1986 on the ground of reasonable requirement.
(2.) The original defendant initially appeared in the suit and filed an application under Section 17(2) of the West Bengal Premises Tenancy Act and deposited rent up to the month of July, 1990. The appellant was a driver and it is claimed that he used to drive lorry and heavy vehicle to different parts of the country and used to work for transport companies. Due to such occupation he mostly used to remain out of Calcutta and return once or twice in a year. The suit was fixed for ex parte hearing on June 4, 1991. It is stated that the written statement was prepared but the same could not be submitted since the original defendant met 2 with an accident in Madras in the last week of May, 1991 and he arrived in Calcutta only on August 25, 1991. He met his counsel on August 26, 2991 when for the first time he came to learn that an ex parte decree was passed on June 4, 1991. He filed an application for setting aside of such ex parte decree on the ground that his nonappearance on the date fixed was unintentional and the situation was beyond his control. The application under Order IX Rule 13 of the C. P. C. was considered on evidence. Learned trial Judge gave several opportunities to the son and the other persons who appeared in support of the said application to produce relevant documents including medical prescriptions, extract of police record, F. I. R. and other related papers but none of the said witnesses could produce any such evidence. In view of such lack of evidence, the said application was dismissed.
(3.) In view of the fact that such evidence of the son and other persons were hear-say evidence, their evidence was disbelieved inasmuch as such evidence was not corroborated by any other cogent material evidence.;