- (1.) This Rule been issued on an application under S. 5 of the Limitation Act, filed by the defendant/appellant.
(2.) The appellant was the defendant in a suit for eviction instituted by the opposite parties. She was sought to be evicted from premises No.7D, Lindsay Street, Calcutta on the ground that the said premises were originally let out to one Mrs. Sira Manen who died on August 12, 1970, and since then defendant/appellant had been in wrongful occupation of the said premises as a trespasser. The defendant/appellant filed a written statement in contesting the said suit and claimed herself to be the daughter of late Mrs. Sira Manen and to have inherited the tenancy on her death. The suit which was filed in the year 1972 was taken up for hearing in presence of the parties on May 11, 1976. It was heard in part on that day and on 3 other dates when the witnesses for the plaintiff were examined and the defendant herself was examined in part. At that stage the suit was adjourned for further hearing to August 9, 1977, on which date neither the defendant/appellant nor her lawyer being present, the learned judge closed the case. The suit was then decreed on August 25, 1977.
(3.) On September 10, 1977, the defendant/appellant filed an application under Order 9 Rule 13 of the Code of Civil Procedure wherein she pleaded that in recording the adjourned date her lawyer made a mistake in nothing the date as 8.9.77 in place of 9.8.77 so that in the meantime the suit itself was disposed of exparte against her. The application under Order 9 Rule 13 of the Code was dismissed by the learned judge on the view that when the suit was decreed on an adjourned date after three days of contested hearing, it cannot be said to have been decreed ex parte - Order 9 not being attracted to such a case. The learned Judge observed: ?Now if a suit be decreed on contest the remedy of the aggrieved party is to prefer an appeal under Order 41 of the Code of Civil Procedure before the appropriate forum. Order 9 of the Code of Civil Procedure or S. 151 of the Code of Civil Procedure is not attracted in such cases. The defendant/petitioner has sued in wrong forum. The learned advocate Shri A. K. Bose categorically submitted that because of the mistake on his part his client had to suffer. As stated already, the matter is rather unfortunate but this court in law is not empowered to grant the petitioner relief prayed for.?;