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1993 Supreme(Cal) 100
HIGH COURT OF CALCUTTA
Nripendra Kumar Bhattacharyya, J.
Dhruba Nath Chatterjee
vs.
Sarala Bala Shaw
C.O. No. 1342 of 1992
Decided On: March 5, 1993
Md. Yamin Ali for petitioner;
None appears for opposite party,
A second application for restoration of a suit dismissed for want of prosecution is not maintainable.
Headnote:
CIVIL PROCEDURE CODE (ACT V OF 1908) - ORDER IX RULE 13 - RESTORATION OF SUIT - APPLICATION FOR RESTORATION OF SUIT DISMISSED FOR WANT OF PROSECUTION - DISMISSAL OF APPLICATION FOR RESTORATION - SECOND APPLICATION FOR RESTORATION - WHETHER MAINTAINABLE - HELD, NO - SECOND APPLICATION FOR RESTORATION NOT MAINTAINABLE.
Fact of the Case:
The plaintiff filed a suit for eviction of the tenant from the suit premises. The tenant filed two applications under Ss. 17(2) and 17(2A) of the West Bengal Premises Tenancy Act for payment of rent in installments. The applications were rejected by the trial court for non-supply of copies to the plaintiff. The tenant filed an application under S. 151 C.P.C. to vacate the order of rejection, which was also rejected. The plaintiff filed a petition under S. 17(3) of the Act for striking out the defense of the tenant against delivery of possession, which was allowed. The tenant filed another application under S. 151 C.P.C. for recalling the order of rejection, which was allowed by the trial court.
Finding of the Court:
The court held that the order of the trial court allowing the second application under S. 151 C.P.C. was without jurisdiction as the order striking out the defense of the tenant against delivery of possession had not been challenged and still stood.
Issues: Whether a second application for restoration of a suit dismissed for want of prosecution is maintainable.
Ratio Decidendi: The court relied on the provisions of Order IX Rule 13 of the Civil Procedure Code, which states that where a suit is dismissed for want of prosecution, the court may, on the application of the plaintiff, restore the suit to the file.
Final Decision: The court set aside the order of the trial court allowing the second application for restoration of the suit.
The revisionist, by this revisional application, challenged the order impugned being Order No. 28 dated 10th February, 1992 passed by the Learned Munsif, 3rd Court, Alipore in T. S. No. 37 of 1988 allowing the petition of the tenant/defendant under S. 151 of the C.P.C. restoring the petitions of the tenant/defendant under Ss. 17(2) and 17(2A) of the West Bengal Premises Tenancy Act.
2. The plaintiff/landlord instituted a suit being T.S. No. 37 of 1988 in the 3rd Court of Munsif, Alipore for eviction of the tenant/defendant from one of the rooms of the suit premises being No. Q-421, 5antoshpur Road, P.S. Metiaburuj, Calcutta-700 024 wherein the defendant/tenant was inducted as a monthly tenant at a monthly rental of Rs. 40 payable according to English calendar month, on the ground of reasonable requirement and for default in payment of rent since Bhadra 1394 B.S.
3. The tenant/defendant, the present opposite party, entered appearance in that suit on 21-3-88 and time was allowed for filing written statement.
4. The defendant filed two applications under Ss. 17(2) and 17(2A) respectively of the West Bengal Premises Tenancy Act (hereinafter shall be referred to as "the Act") on 31-3-88 praying for payment of rent in instalment. As the copy of the said applications was not served upon the plaintiff, the present petitioner, directions were given time and again by the learned Munsif for supplying the copy of the said petitions to the plaintiff/petitioner.
5. Ultimately, by Order No. 7 dated 15-11-88 the defendant was asked to show cause as to why his petitions under Ss. 17(2) and 17(2A) shall not be rejected for non supply of the copy of the said petitions to the plaintiff/petitioner.
6. As no steps were taken even thereafter, the defendant's petitions under Ss. 17(2) and 17(2A) were rejected by the learned Munsif by his Order No.8 dated 3-12-88.
7. In the meantime, the written statement of the defendant was accepted by the Trial Court on 7-4-89 and on that date, the defendant filed an application under S. 151 C.P.C. for vacating the Order No.8 dated 3-12-88.
8. Ultimately, that application under S.151 C.P.C. came up for hearing on 9-8-91 and as no steps were taken by the defendant and as there was none to press that application on behalf of the defendant, the application under S. 151 C.P.C. was rejected by the learned Munsif by Order No. 23 dated 9-8-91, the plaintiff/petitioner filed a petition under S. 17(3) of the Act for stricking out the defence of the defendant against delivery of possession.
9. That petition came up for hearing on 3-1-92 and the learned Munsif by Order No. 26 dated 3-1-92 allowed that application and struck out the defence against delivery of possession of the defendant.
10. The defendant filed another application under S. 151 C.P.C. on 7-2-92 for recalling the Order No.8 dated 3-12-88, when the date for peremptory hearing of the suit was fixed.
11. Ultimately by the order impugned being Order No. 28 dated 10-2-92 the learned Munsif allowed the petition under S. 151 C.P.C. and restored the petition under Ss. 17(2) and 17(2A) of the Act.
12. Appearing for the plaintiff/petitioner, the learned Advocate Mr. Yamin Ali, contended that the said order has been passed by the learned Munsif without any jurisdiction as the order for stricking out the defence of the defendant against delivery of possession has not being challenged, the same stands paramount and till today the defendant suffers the Order No. 23 dated 9-8-91.
13. From the record it appears that the learned Munsif, by his Order No. 26 dated 3-1-92, allowed the petition of the petitioner under S. 17(3) of the Act and struck out the defence of the defendant against delivery of possession. Said order is a revisible order. The defendant did not challenge that order under S. 115 of the C.P.C. or under S. 115(A) of the C.P.C. The Trial Court has no jurisdiction to set aside that order. So long that order stands, the Trial Court has no jurisdiction to allow restoration
