Back
IN THE HIGH COURT OF CALCUTTA
Subrata Talukdar, J.
Smt. Sandha Paul - Petitioner
Versus
Smt. Reba Mondal and another - Opposite Parties
CO 553 of 2013
Decided On : 19-12-2014
For the Petitioner:Avijit Roy and Tonmoy Kr. Dey, Advocates
For the Opposite Parties :Hiranmoy Bhattacharyya, Debajyoti Basu, Chandra Nath Sarkar and Sounak Bhattacharya, Advocates
A party seeking to set aside an ex parte decree must show sufficient cause for the delay in filing the application.
Headnote:
LIMITATION ACT - SECTION 5 - ORDER 9 RULE 13 CPC - WEST BENGAL PREMISES TENANCY ACT, 1956 AND 1997 - EX PARTE DECREE - SETTING ASIDE - DELAY - CONDONATION - SUFFICIENT CAUSE - OCCUPATION CHARGES - APPELLATE COURT - INTERFERENCE WITH CONCURRENT FINDINGS OF FACT - Held that the delay in filing the application to set aside the ex parte decree was not properly explained and the petitioner had not shown sufficient cause for condonation of the delay. Also held that the appellate court was justified in not interfering with the concurrent findings of fact returned by the trial court.
Fact of the Case:
Petitioner challenged the order dismissing her application to set aside an ex parte decree in an ejectment suit. The petitioner claimed that she was not aware of the decree until after it was executed, and that she had a good defense to the suit. The trial court and the appellate court both found that the petitioner had not shown sufficient cause for condonation of the delay in filing her application, and that she had not shown that she had a good defense to the suit.
Finding of the Court:
The court found that the petitioner had not shown sufficient cause for condonation of the delay in filing her application to set aside the ex parte decree. The court also found that the petitioner had not shown that she had a good defense to the suit.
Issues: Whether the petitioner had shown sufficient cause for condonation of the delay in filing her application to set aside the ex parte decree.
Ratio Decidendi: The court held that the petitioner had not shown sufficient cause for condonation of the delay in filing her application to set aside the ex parte decree. The court also held that the appellate court was justified in not interfering with the concurrent findings of fact returned by the trial court.
Final Decision: The court dismissed the petition.
Subrata Talukdar, J.
In this application under Article 227 of the Constitution of India the petitioner challenges the order impugned dated 18th January, 2013 passed by the Ld. City Civil Court, 5th Bench, Calcutta in Misc. Appeal No. 18 of 2011 arising out of Misc. Case No. 62 of 2004 which was dismissed on 23rd March, 2011 by the Ld. Small Causes Court, 6th Bench, 2 Calcutta. The said Misc. Case No. 62 of 2004 was filed in connection with an ex parte decree dated 10th March, 2006 passed in Ejectment Suit No. 1064 of 2002 by the Ld. Small Causes Court, 6th Bench, Calcutta.
2. The brief facts of the case are as follows:-
a. That the Opposite Party No.1 in the present application namely, one Gopal Chandra Paul is the landlord in respect of the suit premises situated on the Ground Floor at 32 B, Kailash Bose Street, P.S. Amherst Street, Kol-700006. The suit premises comprises one road side shop room and the monthly rental was Rs. 12/-. The landlord, Gopal Chandra Paul, instituted Ejectment Suit against the tenant, the father of the present petitioner namely, one Sadhan Chandra Paul (since deceased). The petitioner claims to have inherited the tenancy after the death of her father, the original tenant. The petitioner also claims to be in occupation of the said tenanted room.
b. That Ejectment Suit No. 375 of 1989 (subsequently renumbered as Ejectment Suit No. 1064 of 2002) was proceeded with and, on the death of her father, the original tenant, the petitioner and her brother, the proforma OP2 were substituted. After her substitution on 15th January, 1996 the petitioner as defendant entered appearance in the said Ejectment Suit No. 1064 of 2002 and filed applications under Sections 17(1), 17(2) and 17(2A)(b) of the West Bengal Premises Tenancy Act, 1956 (for short the 1956 Act). It is further pleaded that the Opposite Party 1/landlord filed an application under Section 17(3) of the 1956 Act and such application is yet to be disposed of. Similarly the applications as filed by the present petitioner are still pending and yet to be disposed of.
c. That the OP1/landlord filed an application again on 16th May, 1998 under Section 17(3) of the new West Bengal Premises Tenancy Act, 1997 (for short the 1997 Act) which was allowed on 11th November, 2005. The petitioner complains of the fact that such application was allowed under Section 17(3) of the 1997 Act without disposing of the application filed by the petitioner under Section 17(2) of the 1956 Act. However, the earlier application under Section 17(3) filed by the OP1/landlord under the 1956 Act on 17th December, 1991 is still pending along with the applications filed by the present petitioner under Sections 17(2) and 17(2A)(b) of the 1956 Act.
d. According to the petitioner she depended on her brother, the proforma OP2 in this application to contest the said Ejectment Suit. However, the proforma OP2 failed to properly inform the petitioner of the ejectment decree passed in favour of the OP1/landlord. The petitioner came to learn of such decree from third parties.
e. The petitioner thereafter contacted her Ld. Advocate and filed an information slip with regard to the decree. On 26th February, 2008 the petitioner came to know that the said Ejectment Suit No. 1064 of 2002 had been decreed ex parte on 1st March, 2006. The petitioner also came to learn of the fact that the ex parte decree has been put to execution vide Ejectment Execution Case No. 191 of 2006.
f. Being alarmed the petitioner filed an application under Order 9 Rule 13 read with Section 151 CPC praying, inter alia, for setting aside the ex parte decree dated 1st March, 2006. The said application was numbered as Misc. Case No. 62 of 2008. The petitioner also filed a separate application under Section 5 of the Limitation Act praying for condonation of delay in filing Misc Case No. 62 of 2008.
g. By judgment and order dated 23rd March, 2011 the ld. 6th Bench, Small Causes Court, Calcutta was pleased to dismiss the application
