ASHOKE KUMAR DASADHIKARI,J. - (1.) Order impugned dated 2nd March 2010 passed by the learned Chief Judge, Presidency Small Cause Court, Calcutta in Ejectment Suit no. 878/2002 allowing the application under section 17(3) of the West Bengal Premises Tenancy Act 1956 filed by the plaintiffs/petitioners is questioned in this revisional application.
(2.) Leaned counsel appearing for the petitioners submits that the Ejectment Suit being 604/92 was filed by the plaintiff/opposite party before the learned Judge, 3rd Bench, City Civil Court at Calcutta. The petitioner/defendant upon receipt of summons duly appeared in the suit and was contesting the same by filing written statement. The original defendant being the husband of the petitioner/present defendant, moved two applications; one is under section 17(1) and the other one is under section 17(2) of the West Bengal Premises Tenancy Act 1956. Both the said applications were disposed of by the learned court below by its order dated 5th December 1994 allowing the defendant 's application and directing the defendant to deposit the arrear rent assessed at Rs.3220/- at the rate of Rs.100 along with the current rent till the said entire arrear is exhausted. It was claimed that as per order passed by the learned court below, original defendant started to deposit monthly rent in the Ejectment Suit and according to him there was compliance of the order of the learned court below.
(3.) In the year 2000 the suit was transferred from City Civil Court to Presidency Small Causes Court, Calcutta for disposal. After transfer of the suit, petitioner/defendant being the successor of original defendant did not find whereabouts of the said matter and after long search in the year 2005 the defendant traced out the Ejectment Suit papers and, accordingly, the present defendant/petitioner came to know that the said suit was transferred to the learned Chief Judge, Presidency Small Causes Court with a new number being Ejectment Suit no. 878 of 2002 and the same was decreed ex parte in favour of the plaintiff. Defendant/petitioner immediately filed an application under Order 9, Rule 13 CPC Vide Misc. Case no. 189 of 2005 before the learned Chief Judge, Small Causes Court for setting aside the ex parte order and the Misc. case was allowed on contest. Thereafter the suit was fixed for peremptory hearing. It was alleged that during the cross-examination of the plaintiff, the learned advocate for the petitioner/ defendant noticed that civil deposit has been made in the instant suit till December 1999 and subsequently no deposit could be made due to the demise of the then conducting advocate for the petitioner/defendant and thereafter suit was transferred from the City Civil Court to Small Causes Court, Calcutta. It was claimed that the leaned advocate conducting the defendant 's case ought to have deposited the amount on behalf of the petitioner/defendant. However, due to demise of conducting advocate, civil deposit could not be made.;