Decided on January 09,1996



N.K.Bhattacharyya. J. - (1.)Heard the submission of the learned Advocate for the petitioner Mr. Haradhan Banerjee appearing with Mr. Amitava Pyne and the learned Advocate for the Opposite party Mr. Bidyut Kr. Banerjee appearing with Ms. Shila Sarkar. Considered the materials on record.
(2.)By this application under section 115 of the C.P.C. the petitioner has challenged order No. 101 dared 21st November, 1994 passed by the Ld. Munsif, 7th court, Howrah in Title Suit No. 11 /90, whereby the Ld. Munsif rejected the application of the petitioner made under section 151 of the C.P.C. praying, inter alia, for recalling of the order passed by the learned Munsif of that court in that suit, being order No. 57 dated 20.4.92.
(3.)The facts silhouetted behind this revision is that admittedly the petitioner is a tenant under the opposite party herein and the opposite party herein, for evicting the defendant from the suit premises, filed Title Suit No. 11/90 in the court of the 7th Munsif, Howrah on the ground of default and reasonable requirement. The defendant-petitioner filed an application in that suit under section 17(2) and (2a) of the West Bengal Premises Tenancy Act, but beyond time and an application for condonation of delay was made for condoning the delay in filing the application under section 17(2) and (2a) of the West Bengal Premises Tenancy Act. The ground that has been taken in that limitation application was illness of the defendant and other disturbances in his family. The application came up for hearing before the Ld. Munsif on 20th April, 1992 and the Ld. Munsif found that the defendant could not establish the ground of illness as no evidence was adduced by him as he failed to appear before the court and the application was dismissed on merit, as has been specified by the Ld. Munsif in his order. In the ordering portion he has stated, inter alia, that "the petition under section 5 of the Limitation Act is rejected but on merit." The Ld. Munsif was also pleased to observe that "the defendant has also failed to discharge his obligation to establish the ground as has been made out in the petition u/s. 5 of the Limitation Act."

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