JUDGMENT :

Shampa Sarkar, J.

1. The revisional application is directed against an order dated August 18, 2022 passed by the learned Additional District Judge, 2nd Court at Serampore, District-Hooghly, in Misc. Appeal No.04 of 2021. The misc. appeal arose out of Misc. Case No.29 of 2017. The misc. case arose out of Preemption Case No.85 of 2013.

2. The petitioner is the preemptee. The petitioner suffered an ex parte decree of pre-emption dated August 13, 2015 passed by the learned Civil Judge (Junior Division), 4th Court at Serampore, Hooghly. The petitioner filed an application under Order IX Rule 13 of the Code of Civil Procedure. As the misc. case was delayed by more than two years, the learned trial Judge rejected the application for condonation of delay on the ground that the petitioner did not sufficiently explain the cause of the delay and the contention that the talks of compromise going, on were not based on documentary evidence.

3. The petitioner preferred Misc. Appeal No.04 of 2021, which was heard by the learned Additional District Judge, 2nd Court at Serampore. The misc. appeal was dismissed on the ground that each and every days delay had not been explained. The learned lower appellate court came to the finding that the explanation that talks of compromise were going on, was vague. Not a single scrap of paper was filed to substantiate such claim.

4. Moreover, the learned lower appellate court found that the petitioner did not ever attend the court and hence finding no other alternative, the learned trial Judge decreed the misc. case ex parte against the petitioner on August 13, 2015, with a condition to deposit the deficit consideration amount of Rs.88,000/- within one month.

5. Mr. Bandyopadhyay, learned Advocate appearing for the preemptor submits that the petitioner was given ample opportunity by the learned trial court to attend the proceeding and file his written objection. That an order was passed asking the petitioner to show cause as to why the misc. case should not be decreed ex parte. The petitioner failed to answer to the show cause. Thus, taking into account the conduct of the petitioner, the learned trial judge had no other alternative but to proceed ex parte. It is submitted by Mr. Bandyopadhyay that the learned lower appellate court took into consideration the above factors and rightly rejected the misc. appeal thereby accepting the findings of the learned trial Judge, that sufficient grounds for delay in filing the application under Order IX Rule 13 of the Code of Civil Procedure, had not been made out.

6. Mr. Bandyopadhyay relies on the following decisions:

i) The State of West Bengal & ors. vs. Sri Kalyan Ganguly & ors. reported in (2015) 1 Cal LJ 196.

ii) Sujit Chatterjee vs. Rita Chatterjee reported in (2001) 2 Cal LJ 308.

iii) Srimati Shila Sankari Devi vs. Sirmati Ladshirani Kailtha & anr. reported in (2014) 1 Cal LJ 500.

7. The grounds for delay in filing the application under Order IX Rule 13, that is, Misc. Case No.29 of 2017 were:

(a) The petitioner trusted the preemptor when the preemptor had assured him that he would withdraw the preemption case. As talks of compromise were going on, the petitioner did not follow up the suit.

(b) After the notice was received from the Block Land and Land Reforms Officer, the petitioner came to know about the ex parte decree. The petitioner applied for mutation. Being misled by the false assurance that no steps would be taken in the pre-emption case, the petitioner stayed away from the proceeding and the pre-emption case was decreed ex parte.

8. The learned courts below did not accept such contention