- (1.) In this application under Article 227 of the Constitution of India the petitioner challenges the order impugned dated 18th January, 2013 passed by the Ld. City Civil Court, 5th Bench, Calcutta in Misc. Appeal No. 18 of 2011 arising out of Misc. Case No. 62 of 2004 which was dismissed on 23rd March, 2011 by the Ld. Small Causes Court, 6th Bench, Calcutta. The said Misc. Case No. 62 of 2004 was filed in connection with an ex parte decree dated 10th March, 2006 passed in Ejectment Suit No. 1064 of 2002 by the Ld. Small Causes Court, 6th Bench, Calcutta.
(2.) The brief facts of the case are as follows:- a) That the Opposite Party No.1 in the present application namely, one Gopal Chandra Paul is the landlord in respect of the suit premises situated on the Ground Floor at 32 B, Kailash Bose Street, P.S.-Amherst Street, Kol- 700006. The suit premises comprises one road side shop room and the monthly rental was Rs. 12/-. The landlord, Gopal Chandra Paul, instituted Ejectment Suit against the tenant, the father of the present petitioner namely, one Sadhan Chandra Paul (since deceased). The petitioner claims to have inherited the tenancy after the death of her father, the original tenant. The petitioner also claims to be in occupation of the said tenanted room. b) That Ejectment Suit No. 375 of 1989 (subsequently renumbered as Ejectment Suit No. 1064 of 2002) was proceeded with and, on the death of her father, the original tenant, the petitioner and her brother, the proforma OP2 were substituted. After her substitution on 15th January, 1996 the petitioner as defendant entered appearance in the said Ejectment Suit No. 1064 of 2002 and filed applications under Sections 17 (1), 17 (2) and 17 (2A)(b) of the West Bengal Premises Tenancy Act, 1956 (for short the 1956 Act). It is further pleaded that the Opposite Party 1/landlord filed an application under Section 17 (3) of the 1956 Act and such application is yet to be disposed of. Similarly the applications as filed by the present petitioner are still pending and yet to be disposed of. c) That the OP1/landlord filed an application again on 16th May, 1998 under Section 17 (3) of the new West Bengal Premises Tenancy Act, 1997 (for short the 1997 Act) which was allowed on 11th November, 2005. The petitioner complains of the fact that such application was allowed under Section 17 (3) of the 1997 Act without disposing of the application filed by the petitioner under Section 17 (2) of the 1956 Act. However, the earlier application under Section 17 (3) filed by the OP1/landlord under the 1956 Act on 17th December, 1991 is still pending along with the applications filed by the present petitioner under Sections 17 (2) and 17 (2A)(b) of the 1956 Act. d) According to the petitioner she depended on her brother, the proforma OP2 in this application to contest the said Ejectment Suit. However, the proforma OP2 failed to properly inform the petitioner of the ejectment decree passed in favour of the OP1/landlord. The petitioner came to learn of such decree from third parties. e) The petitioner thereafter contacted her Ld. Advocate and filed an information slip with regard to the decree. On 26th February, 2008 the petitioner came to know that the said Ejectment Suit No. 1064 of 2002 had been decreed ex parte on 1st March, 2006. The petitioner also came to learn of the fact that the ex parte decree has been put to execution vide Ejectment Execution Case No. 191 of 2006. f) Being alarmed the petitioner filed an application under Order 9 Rule 13 read with Section 151 CPC praying, inter alia, for setting aside the ex parte decree dated 1st March, 2006. The said application was numbered as Misc. Case No. 62 of 2008. The petitioner also filed a separate application under Section 5 of the Limitation Act praying for condonation of delay in filing Misc Case No. 62 of 2008. g) By judgment and order dated 23rd March, 2011 the ld. 6th Bench, Small Causes Court, Calcutta was pleased to dismiss the application under Section 5 of the Limitation Act along with the Misc. Case No. 62 of 2008. h) Being aggrieved by the order of dismissal dated 23rd March, 2009 the petitioner preferred Misc. Appeal No. 18 of 2011 before the Ld. 5th Bench, City Civil Court, Calcutta. However, by the judgment and order dated 18th January, 2013 the Ld. 5th Bench, City Civil Court, Calcutta was also pleased to dismiss Misc. Appeal No. 18 of 2011.
(3.) Hence the present CO 553 of 2013 has been preferred by the petitioner challenging the judgment and order of dismissal dated 18th January, 2013 in Misc. Appeal No. 18 of 2011.;