TARUN KUMAR GUPTA,J. - (1.) THE defendant has filed this revisional application under Article 227 of the Constitution of India challenging the order dated 1st of March, 2010 passed by learned Civil Judge (Junior Division), second Court at Sealdah, district – 24 Parganas (south) in Title Suit No.277 of 1999. The background facts of the case may be summarized as follows:
(2.) THE O. P. M/s. Raja Ram Dal Mill being represented by its partners filed said Title Suit No.277 of 1999 praying for a decree for declaration that it was a lawful tenant under the petitioner defendant in respect of the suit properties and not to be dispossessed therefrom without due process of law with other consequential reliefs. The petitioner being defendant appeared in said suit on 15th June, 2001 and filed written statement denying material allegations of the plaint. On 8th of January, 2002 the petitioner defendant filed counter claim under order 8 rule 6 A of the Code of Civil Procedure. The plaintiff O. P. filed an application dated 19th of January, 2005 praying to strike out the counter claim filed by the defendant petitioner. After contested hearing learned trial court rejected said application dated 19th of January, 2005. The plaintiff O. P. preferred a revisional application being Civil Order No.3417 of 2005 before this Court challenging said order dated 1st of September, 2005. After contested hearing said revisional application being Civil Order No.3417 of 2005 was rejected vide order dated 27th of February, 2008. The plaintiff O. P. filed a review application being RVW No.91 of 2008 against order dated 27th of February, 2008 rejecting the revisional application being Civil Order No.3417 of 2005. On 7th of July, 2009 the peremptory hearing of the suit was adjourned fixing 24th of August, 2009 as the next date of hearing. On 24th of August, 2009 the defendant petitioner did not take any step and he was directed to showcause by the learned trial court by 12th of November, 2009. On 12th of November, 2009 though the petitioner defendant filed a showcause petition but the same was not moved. Learned trial court rejected said showcause petition for being not moved as well as the counter claim filed by the petitioner defendant vide order dated 12th of November, 2009 and posted the suit for ex parte hearing on 7th of January, 2010. On the same day i.e., 12th of November, 2009 the defendant petitioner filed an application under Section 151 of the Code of Civil Procedure praying to recall the order of ex parte hearing and rejection of the counter claim. After contested hearing learned trial court rejected said application under Section 151 of the Code of Civil Procedure by the order impugned dated 1st of March, 2010. Mr. Rabindra Nath Mahato, learned counsel appearing for the defendant petitioner, submits that learned trial court rejected said application dated 12th of November, 2009 under Section 151 of the Code of Civil Procedure mainly on two grounds. The first ground was that there was direction of the Hon'ble Court in Civil Order No. 3417 of 2005 for expeditious hearing. The second ground was that Section 151 of the Code of Civil Procedure was not applicable for restoration of a counter claim being dismissed for default as it was akin to a plaint. Mr. Mahato submits that learned trial court failed to take note that the O. P. plaintiff filed a review application being RVW No.91 of 2008 against order dated 27th of February, 2008 rejecting the revisional application being Civil Order No.3417 of 2005 and that the same was pending even on 12th of November, 2009 when for not moving the showcause petition the suit was posted for ex parte hearing after rejection of the counter claim filed by the petitioner defendant. According to him, as the application for review of order of rejection dated 27th of February, 2008 of the revisional application being Civil Order No.3417 of 2005 was pending before this Court the force of said order dated 27th of February, 2008 in said civil order wherein a direction was given to the learned trial court for expeditious disposal of the suit virtually remained stayed. According to him, though the review application was ultimately dismissed on 19th of November, 2009 but in view of pendency of the review application on 12th of November, 2009 learned trial court should not have posted the suit for ex parte hearing after rejection of the counter claim filed by the petitioner defendant.
(3.) HE next submits that as said order of posting the case for ex parte hearing after rejection of the counter claim filed by the petitioner defendant vide order dated 12th of November, 2009 was passed during pendency of the review application said order was bad in law. According to him, as said order was bad in law learned trial court should have recalled said order on the strength of an application under Section 151 of the Code of Civil Procedure. He further submits that for recalling of said order dated 12th of November, 2009 the petitioner defendant was not required to file an application under order 9 Rule 9 of the Code of Civil Procedure though the counter claim is akin to a plaint in terms of the provision under order 8 rule 6 A of the Code of Civil Procedure. In support of his contention he refers case laws reported in AIR 1979 Calcutta page 338 (Sm. Annapurna Chatterjee vs. Smt. Sabita Guha and others), 84 CWN page 328 (Samar Bhusan Pal vs. Sakti Pada Das) and AIR 1977 Delhi page 7 (M/s. Devi Dayal Textile Company and others vs. Nand Lal).;