The court's discretionary power under Section 5 of the Limitation Act should be exercised liberally, but only if the evidence on behalf of the applicant is convincing and trustworthy.

Prasenjit Mandal, J.

1. THIS application is at the instance of the defendants/judgment debtors and is directed against the order no.55 dated July 7, 2007 passed by the learned Civil Judge (Junior Division), Second Court, Howrah in Misc. Case No.25 of 2002 arising out of the Title Suit No.116 of 2000 thereby rejecting application under Section 5 of the Limitation Act.

2. THE plaintiff/opposite party herein instituted a suit being T.S. No.,116 of 2000 before the learned Civil Judge (Junior Division), Howrah for eviction against the predecessor-in-interest of the petitioners. In that suit, the opposite party got an ex parte decree. On getting an information by search on June 6, 2002, the petitioners got knowledge of the ex parte decree passed against them. Thereafter, they contacted their advocate and then an application under Order 9 Rule 13 of the C.P.C. was filed on June 14, 2002. At that time, the mistake was detected by the computer department that the application was barred by limitation. Thereafter, the petitioners filed an application under Section 5 of the Limitation Act praying for condonation of the delay in filing the said misc. case. THE opposite party filed an objection against the said application under Section 5 of the Limitation Act. Both the parties adduced evidence on the application under Section 5 of the Limitation Act. By the impugned order, the learned Trial Judge has dismissed the application under Section 5 of the Limitation Act. Being aggrieved, this application has been preferred.

Now, the question is whether the impugned order should be sustained.

3. UPON hearing the learned counsel for the parties and on going through the materials on record, I find that the plaintiff /opposite party instituted the said title suit for eviction against the predecessor-in-interest of the petitioners. Notices were issued upon the defendant in both ways, that is, through process server and postal process. As per report, notices were duly served upon the defendant but none appeared. As such, the suit was decreed ex parte on September 16, 2001.

4. THE petitioners have contended that they have no knowledge of the institution of the suit but on the basis of searching slip on June 6, 2002 they came to know that the said suit was decreed ex parte. Thereafter, they filed the application for setting aside the ex parte decree only on June 18, 2002. In the meantime, 255 days have passed. That is why, they filed an application for condonation of the delay of 255 days.

In the meantime, the decree was put into execution and the opposite party got possession of the premises in suit. The contention of the petitioners is that they had no knowledge of the institution of the suit. The report of the process server as well as the postal peon is collusive and for that reason, they did not get any notice. They came to know about the ex parte decree only on the basis of the search slip, on June 6, 2002. The petitioners did not explain why they filed the search slip on that day or that they had any information about dispossession earlier. Though the possession of the suit premises was taken long time back.

5. THE petitioners have examined two P.Ws. THE P.W.2 has stated that he heard from the P.W.1 that they were evicted from the suit premises. Therefore, the P.W.2 has no personal knowledge about the premises in suit. Under the circumstances, the learned Trial Judge has held that the evidence of the P.W.2 is not trustworthy. So far as the evidence of the P.W.1 is concerned, he has stated that his father, that is, the original judgment debtor was evicted from the premises in suit on May 16, 2002. He has stated that the suit was decreed on September 16, 2001 but they have no knowledge. If the original tenant was dispossessed on May 16, 2002 and they were eager to take immediate steps their conduct would have been to take appropriate steps at once. But the P.W.1 has stated that on June 5, 2002 their lawyer instructed the clerk for filing an a