- (1.) THE appeal is directed against a decree dated September 29, 2011. The defendant did not file written statement. In absence of written statement being filed, the learned Judge took up the suit for final hearing and held that the plaintiff had a right to seek decree ex parte, however, subject to proving the case by the plaintiff. Being aggrieved the defendant has preferred the appeal.
(2.) MR . P. S. Basu, learned Counsel appearing for the appellant contended, written statement was not filed in view of the pendency of a Special Leave Petition pending before the Hon'ble Supreme Court of India. The decree dated September 29, 2011 was passed whereas such Special Leave Petition was disposed of on October 10, 2011. Per contra, Mr. Pramit Kumar Ray, learned Counsel for the respondent contended, the appellant created third party right in respect of the property in question. He also submitted, the respondent had nothing to show that third party right had been created by the appellant in respect of the subject property. He contended, that the respondent was a person of 85 years of age and that his client being a senior citizen, should be taken into consideration. Mr. Ray drew attention of the Court to the order dated October 10, 2011 passed by the Hon'ble Supreme Court of India while rejecting the Special Leave Petition directed against the judgment and order dated August 11, 2011 passed by this Hon'ble Court and submitted, the appellant ought to have taken steps to file written statement and contest the suit.
(3.) WE have considered the rival contentions of the parties. The impugned judgment does not disclose any reason for passing the decree dated September 29, 2011. The plea that the written statement was not filed in view of the pendency of the Special Leave Petition, does not appeal to us. However, for the ends of justice and to afford the appellant an opportunity to contest the suit, we set aside the ex parte decree and permit the appellant to file written statement within a period of a fortnight from the date of this order. This direction is peremptory.;