Subrata Talukdar, J.

In this application under Article 227 of the Constitution of India the order dated 16th December, 2006 passed by the Ld. District Judge-in-charge, Purulia in Misc. Appeal No. 10 of 2006 thereby allowing the Misc. Appeal by treating it as a civil revision is under challenge. By filing the said Misc. Appeal No. 10 of 2006 the order dated 20th February, 2006 passed by the Ld. Munsif (now Civil Judge, Junior Division), Purulia in Misc. Case No. 124 of 2003 arising out of Title Suit No. 85 of 1997 in the matter of Salim Jawed vs. Smt. Indira Mukherjee and others was under challenge.

The short facts of the case are as follows:-

i) The present petitioner is the defendant No. 3 in the suit. The father of the petitioner, one Jagannath Mukherjee since deceased, was the tenant in respect of one shop room being Municipal Holding No. 205/121 commonly styled as Mukherjee Pharmacy situated at Chaibasa Road (Post Office More) within Ward No. 5 of Purulia Municipality under one Sk. Ahmed Ali Sodagar, son of late Hazi Hossain Sodagar at a monthly rent of Rs. 50/-. After the demise of the said Jagannath Mukherjee, his wife, Smt. Indira Mukherjee and daughters, Rina Mukherjee, Rupa Mukherjee and the present petitioner, Rubi Mukherjee, became the joint tenants in respect of the said shop room.

ii) That on the basis of a registered Deed of Gift dated 28.12.1989 the present Opposite Party (for short OP), who is the plaintiff in the suit, became the owner of the premises in which the said shop room is situated.

iii) That the petitioner claims to have resided at the house of her maternal uncle in Bankura for education purposes since the year 1992 till the date of the expiry of her mother, Smt. Indira Mukherjee. The said Jagannath Mukherjee died on 19th December, 1994. After the death of Jagannath Mukherjee, his widow, Smt. Indira Mukherjee used to look after the pharmacy business till her death on 6th July, 2001. After the death of the widow, the petitioner started looking after the pharmacy business while her other sisters are married and residing elsewhere.

iv) That sometime around September 2003 the petitioner came to learn from one Gulam Mustafa, being the brother-in-law of the plaintiff, that the plaintiff has obtained a decree for eviction in respect of their tenanted shop room. On coming to learn of such fact the petitioner rushed to court and after making necessary enquiries found that Title Suit No. 85 of 1997 was instituted by the plaintiff against the mother of the petitioner and others praying, inter alia, for eviction and recovery of khas possession. As already recorded earlier in this judgment the petitioner was impleaded as the defendant No. 3.

v) That all the defendants, except the petitioner, appeared before the Ld. Trial Court and filed separate applications under Sections 17(1) and 17(2A) of the West Bengal Premises Tenancy Act, 1956 (for short the 1956 Act). Since the petitioner did not get any summons from court she claims to have no knowledge of the suit and therefore could not appear in the same. Title Suit No. 85 of 1997 was decreed ex-parte on 26th August, 2003. On obtaining the information regarding the decree the petitioner filed Misc. Case No. 124 of 2003 under Order 9 Rule 13 read with Section 151 CPC for recalling the ex-parte decree. In her application under Order 9 Rule 13 CPC the petitioner took the point that she was not aware of the institution of the suit till 18th of September 2003 on which date she was purportedly informed regarding the ex-parte decree dated 26th August, 2003. During the lifetime of her mother she used to look after the said shop room and after her death on 6th July, 2001 the petitioner is managing the same. Since the mother of the petitioner died long before the ex-parte decree was passed, the said decree is non-est in the eyes of law.

vi) The OP-1/plaintiff contested the said Misc. Case No. 124 of 2003 by filing his written objection on 30th April, 2004. According