The main legal point established is the need to address irregularities in the service of summons and afford the petitioner a chance to contest the proceeding, highlighting the limitations on setting aside an ex-parte judgment and order based on such irregularities.

BISWAJIT BASU, J.

1. The revisional application under Article 227 of the Constitution of India is at the instance of the pre-emptee in a proceeding under Sections 8 and 9 of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as ‘the said Act’ in short) and is directed against the order dated September 15, 2017 passed by the learned Additional District Judge, 7th Court, Paschim Midnapore, in Misc. Appeal No. 119 of 2015 thereby affirming the order No. 71 dated September 24, 2015 passed by the learned Civil Judge (Junior Division), 1st Court, Paschim Midnapore, in Misc. Case No. 44 of 2006.

2. The pre-emptor/opposite party filed an application before the learned Trial Judge under Sections 8 and 9 of the said Act contending, inter alia, that a share of the suit plot of which he is a co-sharer has been sold by one of the cosharers of the suit plot namely Shri. Dhruba Lal Singha vide deed No. 1949 dated May 20, 2004 in favour of the pre-emptee/petitioner, who is a stranger to the said plot of land. The further case of the pre-emptor/opposite party is that he is being the co-sharer of the suit plot has been constructively possessing land adjoining to the suit plot. He, therefore, by the said application applied before the learned Trial Judge that the share of the suit plot sold in favour of the pre-emptee by the aforementioned deed may be transferred in his favour on the grounds of co-sharership and vicinage.

3. The said application of the opposite party under Sections 8 and 9 of the said Act was registered before the learned Trial Judge as J. Misc. Case No. 24 of 2005. The learned Trial Judge by the judgment and order dated September 19, 2016 allowed the said Misc. Case ex-parte.

4. The petitioner on November 27, 2006 filed an application under Order IX Rule 13 of the Code of Civil Procedure along with an application under Section 5 of the Limitation Act, 1963 for setting aside the said ex-parte judgment and order on condonation of delay. The said application of the petitioner was registered as J. Misc. Case No. 44 of 2006. The learned Trial Judge by the order No. 71 dated September 24, 2015 dismissed the application for condonation of delay in filing the application for setting aside the ex-parte judgment and order, consequently J. Misc. Case No. 44 of 2006 was also dismissed.

5. The petitioner being aggrieved by the said judgment and order of the learned Trial Judge preferred an appeal being Misc. Appeal No. 119 of 2015, the learned Additional District Judge, 7th Court, Paschim Midnapur dismissed the said appeal thereby affirmed the order of the learned Trial Judge, the order impugned here in.

6. Mr. Ghosh, learned senior counsel appearing on behalf of the petitioner draws my attention to the orders passed by the learned Trial Judge on September 21, 2005 from the photocopy of the certified copy of the orders passed in Misc. Case No.24 of 2005, annexed to the revisional application to contend that the said orders clearly show that the learned Trial Judge himself was not satisfied with the service of summons of the Misc. Case through process server and that is why by a subsequent order passed on the same date directed the opposite party to file requisite for service of summons of the said Misc. Case upon the petitioner by registered post.

He submits that both the learned Courts below have committed error in holding that the summons of the said Misc. Case was served upon the petitioner through process server since the requirement of Order V Rule 17 of the Code of Civil Procedure regarding affixation of summons has not been complied with as there was no witness evidencing service of the said summons.

7. He further submits that such being the position of record which gives rise to a debatable issue as to whether the summons of the said J. Misc. Case No. 24 of 2005 was at all served upon the petitioner or not, it