Tridibesh Das vs Tinku Das

Shampa Sarkar, J

This is an application filed by the defendant/petitioner in a suit for eviction under the Transfer of Property Act, 1882. It appears that the suit was filed sometime in 2018 for eviction of the petitioner/defendant. The suit was posted for ex parte hearing as the defendant/petitioner failed to take steps, as directed by the learned Court below.

The petitioner filed an application on August 13, 2019 for recalling of the order of the learned Court below dated June 20, 2019 fixing the suit for ex parte hearing. The said application was heard and rejected by an order dated September 6, 2019 by the learned Civil Judge (Senior Division), 1st Court at Alipore in Title Suit No.643 of 2018. The said order is impugned in this application. From the order impugned, it appears that the learned Court below has recorded the failure of the defendant/petitioner to file suggested issues on June 20, 2019, as a result of which the suit was posted for ex parte hearing. The petitioner filed the written statement beyond the statutory period as prescribed under the Code, without filing an application for acceptance of the same.

Although, pursuant to the liberty given by the learned Court below, the plaintiff was allowed to take a copy of the same from the file. Having considered the fact that the petitioner was never diligent in pursuing the matter ever since the suit was filed and summons was served upon him, the learned Court below rejected the application for recalling of the order by which the suit was fixed for ex parte hearing.

The learned Advocate for the petitioner submits that last chance may be granted to the petitioner to contest the suit. The learned Advocate for the petitioner further submits that under wrong advice his client filed an application under Sections 7(1) and 7(2) of the West Bengal Premises Tenancy Act in the proceeding and the delay in filing written statement and not taking subsequent steps in the suit occurred because the petitioner was advised that the filing of the written statement was not necessary until the disposal of those applications.

The learned Advocate for the opposite party submits that despite several opportunities the petitioner failed to file the written statement and the petitioner in order to delay the proceeding, filed the applications under the West Bengal Premises Tenancy Act, which were completely misconceived. It is further submitted that as an application for acceptance of the written statement beyond the time, was not filed before the learned Court below, the learned Court below did not have any other option, but to reject the recalling application and fix the suit for ex parte hearing.

It appears from the order impugned that the learned Court below has recorded that the suit was fixed for ex parte hearing on the ground that the written statement was not filed within the statutory period, and that 120 days were already over. That the petitioner had not filed any application for acceptance of the belated written statement and without such application the learned Court could not extend the time to file the written statement and thus could not recall the order fixing the suit for ex parte hearing.

It appears that the plaintiff has filed the affidavit‐in‐chief and has been examined and documents have been exhibited. The suit has been fixed for further evidence of the plaintiff.

Having gone through the records, it appears that the suit was fixed for ex parte hearing because the written statement was not filed within time. It also appears that the repeated adjournments were prayed for by the defendant/petitioner. It further appears that the defendant/petitioner had also failed to the suggested issues. Under such circumstances, I do not find any illegality and irregularity in the order impugned. However, records also reveal that on January 24, 2019, that is the last date fixed by the learned Court below for filing the written statement, the written statement was filed after the learned Court below recorded that till 4.00 p.m. written statement had not been filed and the suit should proceed ex parte.

As this is a suit for eviction and the petitioner is the tenant in respect of the property in question, in my opinion, such proceedings should not be disposed of uncontested. In order to render substantial justice to the parties the order dated September 6, 2019 is set aside giving one last chance to the petitioner to contest the suit.

The learned Court below is directed to accept the written statement filed by the petitioner on January 24, 2019, that is, on the extended date for filing the written statement as fixed by his learned predecessor, upon payment of costs of Rs.20,000/‐ to be paid by the defendant/petitioner to the plaintiff/opposite party. Receipt showing payment of the said amount either to the plaintiff or her learned Advocate should be filed in the learned Court below. The learned Court below upon satisfying itself about such payment shall accept the written statement and the suit will proceed as per the directions of the learned Court below. Let such cost be paid within January 10, 2020.

It is expected that the parties will co‐operate with the learned Court below and will not pray for unnecessary adjournments and the learned Court below is requested to dispose of the matter as expeditiously as possible without granting unnecessary adjournments to either of the parties.

This revisional application is, thus, disposed of.

There will be, however, no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.