1. THIS application arises out of a judgment and order passed by the learned Judge, Second Bench, Small causes Court, allowing an application for a new trial on contest. The petitioner (the plaintiff) instituted the suit being Suit No. 1213 of 1970 before the Second Bench of the small Causes Court at Calcutta for eviction of the tenant from the said premises on the ground that the registered lease dated 15th August, 1853 expired by efflux of time on 14th of August, 1969.

2. SUMMONS that was sent to the opposite party no. 1 came back, with the report "unwilling to take delivery". Thereafter, the summons was again served by registered post and came with the postal remark 'refused' on 12th June, 1970. On 23rd june, 1970 the suit was decreed ex pane and possession was given on 31st July, 1970 by police help. On 4th August, 1970 an application under Order 9 Rule 13 of the Code of Civil Procedure was filed by the opposite party no. 1. It is the case of the plaintiff that the opposite party took certain amount of money from the petitioner for giving up possession of the premises and granted receipt therefore which has been marked 'a' to the present petition. The plaintiff's case