The court reaffirmed that substituted service under the Code of Civil Procedure does not constitute adequate service, necessitating substantiation of claims in applications for condonation of delay.

JUDGMENT :

HIRANMAY BHATTACHARYYA, J.

1. This application under Article 227 of the Constitution of India is at the instance of the plaintiffs and is directed against judgment and order dated 19.11.2024 passed by the learned District Judge, 24 Parganas (South) at Alipore in Misc. Appeal No. 381 of 2023.

2. By the judgment and order impugned, the Misc. Appeal was allowed thereby setting aside the ex parte decree passed in Ejectment Suit no. 15 of 2019.

3. The petitioners herein filed a suit for eviction being Ejectment Suit no. 15 of 2019 before the learned Civil Judge, Junior Division at Alipore, District 24 Parganas (South) against the opposite parties herein. The said suit was decreed ex parte on 17.09.2021. The opposite party no. 1 herein filed an application under Order 9 Rule 13 of the Code of Civil Procedure which was registered as Misc. Case no. 126 of 2022. Since the said Misc. Case was filed beyond the statutory period of limitation, the same was accompanied by an application under Section 5 of the Limitation Act. The learned Trial Judge rejected the prayer for condonation of delay by an order dated August 10, 2023 and consequently dismissed the Misc. Case being barred by limitation. Being aggrieved by the said order, the petitioners filed an application under Article 227 of the Constitution of India being CO 3284 of 2023 and the same was dismissed as withdrawn by an order passed by a co-ordinate bench on October 13, 2023 by giving liberty to the petitioner to approach the appropriate forum in accordance with law. Thereafter, the opposite party no. 1 preferred a Misc. Appeal being no. 381 of 2023 and the learned District Judge, 24 Parganas (South) at Alipore by a judgment and order dated February 19, 2024 allowed the said Misc. Appeal, thereby setting aside the ex parte decree passed in Ejectment Suit no. 15 of 2019.

4. Being aggrieved by the judgment and order dated February 19, 2024 passed in Miscellaneous Appeal No. 381 of 2023, the plaintiffs have approached this Court.

5. Mr. Bhattacharya learned Senior Advocate appearing for the petitioner submitted that the opposite parties herein did not adduce any evidence in support of the case made out in the Miscellaneous Case under Order 9 Rule 13 of the Code of Civil Procedure. He contended that the ex parte decree could not have been set aside unless the defendants proved their case made out in the application under Order 9 Rule 13 of the Code of Civil Procedure by adducing evidence in that regard. Mr. Bhattacharya further contended that the wife of the defendant no. 1 refused to accept the summons after going through the said summons. He thus contended that summons was duly served upon the defendants. He further contended that by way of abundant caution a paper publication was also made and in spite thereof the defendants did not appear to contest the said suit.

6. Mr. Bhattacharyya further contended that the delay in preferring the Misc. Case could not have been condoned unless sufficient cause was shown. He further contended that it was found by the learned Trial Judge that the delay has not been appropriately explained. The learned Judge of the Appellate Court fai