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SANDHA PAUL V/S REBA MONDAL & ANOTHER, decided on Friday, December 19, 2014.
[ In the High Court of Calcutta, C.O. No. 553 of 2003. ] 19/12/2014
Judge(s) : SUBRATA TALUKDAR
Advocate(s) : Avijit Roy & Tonmoy Kr. Dey. Hiranmoy Bhattacharyya, Debajyoti Basu, Chandra Nath Sarkar, Sounak Bhattacharya.
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    1. In this application under Article 227 of the Constitution of India the petitioner challenges the order impugned dated 18th January 2013 passed by the learned 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 learned Small Causes Court 6th Bench Calcutta. The said Misc. Case No. 62 of 2004 was filed in connection with an ex parte decree dated 10th March 2006 passed in Ejectm4ent Suit No. 1064 of 2002 by the learned 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). I 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 learned 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 learned 6th Bench Small Causes Court Calcutta was pleased to dismiss the application under Section 5 of the Limitation Act along with the Misc. Case No. 62 of 2008.h) Being aggrieved by the order of dismissal dated 23rd March 2009 the petitioner preferred Misc. Appeal No. 18 of 2011 before the learned 5th Bench City Civil Court Calcutta. However by the judgment and order dated 18th January 2013 the learned 5th Bench City Civil Court Calcutta was also pleased to dismiss Misc. Appeal No. 18 of 2011.3. Hence the present CO 553 of 2013 has been preferred by the petitioner challenging the judgment and order of dismissal dated 18th January 2013 in Misc. Appeal No. 18 of 2011.4. By the order dated 23rd March 2011 the learned trial Court was pleased to notice that both the petitioner and proforma OP2 were substituted in Ejectment Suit No. 1064 of 2002 and the petitioner filed applications under Sections 17(2) and 17(2A)(b) of the 1956 Act. The learned trial court also took notice of the fact that the petitioner complained of suppression of information by the proforma OP2 with regard to the progress of Ejectment Suit No. 1064 of 2002.5. The learned trial Court took further notice of the fact that a ground taken in Ejectment Suit No. 1064 of 2002 is default in payment of rent by the original tenant Sadhan Chandra Paul. The learned trial Court noticed that the rent payable was only Rs. 12/- per month. After the death of the original tenant the present petitioner being his daughter and the proforma OP2 being the son of the original tenant were substituted. However the rents as directed to be paid by the learned Court remained outstanding and the defendants stood in default.6. The learned trial Court took notice of the fact that the suit was thereafter heard ex parte and decreed on 1st March 2006. At the stage of execution of the decree the petitioner/judgment debtor has filed the application for recall of ex parte decree under Order 9 Rule 13 CPC. The learned trial Court took notice of the fact that although the petitioner was substituted as a defendant in the Ejectment Suit as far back as on 15th February 1996 she did not care to take any step to contest the suit which was ultimately decreed ex parte after a decade on 1st March 2006.7. The learned trial Court also noticed that the petitioner/judgment debtor did not take any step to deposit the monthly rent which was directed to be paid by the Court. The learned trial Court disbelieved the story of the petitioner that she was completely dependant on the proforma OP2 for information about the progress of the Ejectment Suit. The learned trial Court found that the petitioner has admitted that she is in excusive possession of the suit shop room and is enjoying the usufructs to the exclusion of the proforma OP2. Therefore the plea of the petitioner that she was ignorant about the decree and was completely dependant upon the proforma OP2 cannot be believed.8. The learned trial Court noticed that the arrears of rent at Rs. 12/- per month have not been deposited. The learned trial Court also considered the application under Section 5 of the Limitation Act filed by the petition and found that there is no explanation offered deserving condonation of the delay of two year in filing the Misc. Case No. 62 of 2008.9. Having taken note of all the afore-mentioned facts and the conduct of the petitioner the learned trial Court was pleased to reject the application under Section 5 of the Limitation Act and also dismissed Misc. Case No. 62 of 2008.10. The judgment of the learned trial Court was carried in appeal by the petitioner in Misc. Appeal No. 118 of 2011. The learned 1st Appellate Court was pleased to dismiss the said Misc. Case No. 118 of 2011 by the Order No. 4 dated 13th May 2009. The learned 1st Appellate Court took notice of all the facts considered by the learned trial Court while dismissing the Misc. Case No. 62 of 2008 by its order dated 23rd March 2011. The learned 1st Appellate Court also took cognizance of the fact that as per law settled by the Hon’ble Apex Court in the event the petitioner is allowed to remain in possession of the suit shop room she shall be liable to pay occupation charges from the date of the order impugned i.e. 23rd March 2011. Such law has been settled by the judgment of the Hon’ble Apex Court reported in (2005) 1 SCC 705 in the matter of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd.11. Therefore the learned 1st Appellate Court was pleased to direct that the petitioner/appellant shall pay monthly occupation charges to the tune of Rs.  250/- per month from the date of the order i.e. 23rd March 2011 in default the order of stay of Ejectment Execution Case No. 191 of 2006 shall stand vacated. The petitioner/appellant was also directed to pay the arrear occupational charges from the date of the order impugned i.e. 23rd March 2011.12. The said Misc. Appeal No. 18 of 2011 was finally decided by the learned 5th Bench City Civil Court Calcutta on 18th January 2013. Upon an analysis of the submissions and the facts on record the learned Appellate Court arrived at the following conclusions:-I. That the grounds pleaded by the present petitioner/appellant for setting aside the ex parte judgment and decree in Ejectment Suit No. 1064 of 2002 do not show that she was prevented by sufficient cause from contesting the suit. At the time of hearing such grounds have been neither pleaded nor explained in the application under Section 5 of the Limitation Act.II. Noticing the cross-examination of the petitioner the learned 1st Appellate Court found that the petitioner has stated in her evidence that since 11th August 2005 her brother the proforma OP2 is not looking after the case and she has been doing ‘tadbir’. The learned Appellate Court found inconsistency in the statement of the petitioner/appellant that although she claimed to be doing ‘tadbir’ in the suit since August 2005 she as informed of the ex parte decree by her brother in 2006. The learned 1st Appellate Court also noticed the evidence placed by OP1/landlord stating that the present petitioner/appellant was present in Court even on the date of the ex parte decree.III. The learned Appellate Court also found that the learned trial Court had first rejected the application under Section 5 of the Limitation Act and thereafter rejected the Misc. Case No. 62 of 2008. The delay in filing Misc. Case No. 62 of 2008 having not been correctly explained the learned 1st Appellate Court did not find any reason to interfere in the order of the learned trial Court and therefore dismissed Misc. Appeal No. 18 of 2011 on contest.13. Shri Avijit Roy learned Counsel for the petitioner has submitted that the learned trial Court committed an error of law by deciding the application under Order 9 Rule 13 CPC being Misc. Case No. 62 of 2008 first. According to Shri Roy the learned trial Court ought to have decided the application filed by the petitioner under Section 5 of the Limitation Act first. Shri Roy submits that such error committed by the learned trial Court in deciding the application under Order 9 Rule 13 CPC first without deciding the application under Section 5 of the Limitation Act is an abuse of due process and the learned 1st Appellate Court also did not correct the error committed by the learned trial Court. Primarily on this score Shri Roy submits that the present CO 553 of 2013 should be allowed.14. Per contra Shri Hiranmoy Bhattacharya learned Counsel appearing for the OP1/landlord has submitted as follows:-i) That the summons were duly served on the present petitioner/contesting defendant. It is not denied by the petitioner that the summons were not served. According to Shri Bhattacharya the ex parte decree was passed on 1st March 2006 and Misc. Case No. 62 of 2008 under Order 9 Rule 13 CPC was filed after a delay of two years in 2008. Taking this Court to Article 123 of the Limitation Act 1963 Shri Bhattacharya submits that in view of the service of summons upon the present petitioner the limitation starts from the date of the decree and not from the date of the knowledge of the decree which is claimed by the petitioner. Shri Bhattacharya further points out that there is no explanation offered by the petitioner of the delay in filing the Order 9 Rule 13 CPC application after a gap of two years in 2008. He also points out that the averments in both the Section 5 application and the application under Order 9 Rule 13 CPC are identical.ii) It is the further submission of Shri Bhattacharya that the learned trial Court correctly decided both the applications under Section 5 of the Limitation Act and under Order 9 Rule 13 CPC vide the order dated 23rd March 2011. From the order of the learned trial Court it clearly transpires that both the applications under Section 5 of the Limitation Act and under Order 9 Rule 13 CPC were considered and decided simultaneously. Drawing the attention of this Court to the order dated 23rd March 2011 Shri Bhattacharya points out that the learned trial Court first decided the application under Section 5 of the Limitation Act and then proceeded to consider the application under Order 9 Rule 13 CPC. He submits that in doing so no legal error was committed by the learned trial Court.iii) Shri Bhattacharya further submits that in her cross-examination the petitioner has admitted that she has been doing ‘tadbir’ in the suit. In view of the fact that the petitioner is in occupation of the suit shop room and claims to be doing ‘tadbir’ in respect of the same her plea that she could manage to obtain knowledge of the ex parte decree from her brother the proforma OP2 appears to be highly inconsistent. Shri Bhattacharya adds that the pleadings on record and the evidence of the petitioner are not consistent with each other.iv) Distinguishing the judgment cited by Shri Roy reported in (2012) 4 ICC 64 Shri Bhattacharya submits that the Court is not prevented from considering the merits of the main matter while deciding an application under Section 5 of the Limitation Act. Drawing the attention of this Court to the judgment reported in (2009) 3 SCC 525 in the matter of Commissioner Nagar Parishad Bhilware v. Labour Court Bhilwara and Another Shri Bhattacharya submits that when the explanation given in an application under Section 5 and the application under Order 9 Rule 13 CPC are the same the Court is not precluded from deciding the applications together.v) He submits that the view in AIR 1976 Cal (Full Bench) Page 415 in the matter of Mamuda Khateen and Ors. v. Beniyan Bibi and Ors. has been reversed by the Hon’ble Apex Court in AIR 2005 SC 226 in the matter of Pannalal Jaiswal and Ors. v. Shyam Sundar Sarma. In Pannalal Jaiswal (supra) the Hon’ble Apex Court has held that a rejection of the application under Section 5 of the Limitation Act along with the main matter would mean that only an appeal shall lie.15. By way of reply Shri Roy points out that AIR 2000 Cal 280 in the matter of Jahar Dey v. Smt. Brojeshwari Saha is good law in as much as from Para 9 it would be revealed that the Section 5 application ought to have been decided first. He also relies upon (2009) 3 SCC 525 in the matter of Commissioner Nagar Parishad Bhilware v. Labour Court Bhilwara and Another (at para 5) to make the point that delay must be condoned first.16. He submits that the proforma OP2 colluded with the OP1. Shri Roy also relies upon the decision in AIR 1993 Madras 21 on the point that the ex parte decree would not cease to be assailable merely because a contesting defendant was present in Court.17. Arguing that technicalities should not stand in the way of rendering substantial justice Shri Roy relies upon (2011) 4 Indian Civil Cases 535 (2013) Indian Civil Cases ICC 184 (at paras 33 & 34) and also upon (2012) 4 ICC 64.18. Heard the parties. Considered the materials on record.19. At the very outset this Court is persuaded to take notice of the particular facts of this case. It is an admitted position that the present petitioner was substituted in the Ejectment Suit on 15th February 1996. It is also an admitted position that upon her substitution as a defendant the present petitioner filed applications under Sections 17(2) and 17(2)(B) of the 1956 Act.20. The learned trial Court found that since her substitution on 15th February 1996 the petitioner did not take steps in the suit resulting ultimately in the ex parte decree on the 1st of March 2006. She also did not take steps to deposit the monthly rent which was directed to be paid by the learned trial Court. It was also found by the learned trial Court that the petitioner admitted to be in exclusive possession of the suit shop room and was in enjoyment of its usufructs.21. Therefore the claim of the petitioner to be entirely dependant upon the proforma OP2 for information on the progress of the suit was rightly disbelieved by the learned trial Court. It also cannot stand to reason that the petitioner who was enjoying the suit shop room for commercial purpose and was vigilant enough to get herself substituted as a defendant soon after the death of her father did not care to keep track of the progress of the suit for nearly 10 years and ran the risk of suffering an ex parte decree which would oust her from her place of livelihood.22. This Court cannot also lose sight of the fact that the petitioner is in default of payment of rents and thus caused deliberate non-compliance of the orders of the learned trial Court. To the mind of this Court the plea taken by the petitioner during the hearing of the present application that information regarding the progress of the ejectment suit was suppressed from her by the proforma OP2 also cannot be accepted in the light of the facts enumerated above.23. This Court is of the view that the above noted pleas taken by the petitioner to save herself from the rigours of the execution case are in the nature of an afterthought which deserve to be rejected. This Court also finds that the learned trial Court correctly noticed that the application for condonation of delay filed by the petitioner after a period of 2 years in the year 2008 when the suit stood dismissed in the year 2006 did not at all offer any explanation worthy of the delay being condoned.24. With regard to the second limb of submission advanced by Sri Roy that the application under Section 5 of the Limitation Act ought to have been decided first before deciding the application under Order 9 Rule 13 CPC this Court notices that the reasons shown for condonation of delay and the reasons shown for setting aside the ex parte decree are identical. It is further noticed by this Court that the learned trial Court after a detailed discussion showing adequate application of mind in the operative portion of the Order No. 131 dated 23rd March 2011 held as follows:-“Ordered1) That the petition under Section 5 of the Limitation Act filed by on 13.03.2008 be rejected on contest but without any cost.2) That the Misc. Case 62/2008 (under Order 9 Rule 13 read with Section 151 CPC) filed on 13.03.2008 is hereby dismissed but without any cost.Both the petitions are thus disposed against the petitioner (defendant)”.25. This Court finds that by the order dated 23rd March 2011 the learned trial Court took up for consideration both the applications under Section 5 of the Limitation Act and the application Order 9 Rule 13 read with Section 151 CPC for setting aside the ex parte decree. The learned trial Court found that pleadings in respect of both the applications were identical. Upon discussion of such identical pleadings the learned trial Court found no merit in the application under Section 5 of the Limitation Act and therefore rejected the same first as evident from the operative portion of the order dated 23rd March 2011 quoted above.26. The learned trial Court was also pleased to take into consideration several decisions of the Hon’ble Apex Court and this Hon’ble Court for considering whether “sufficient cause” has been made out by the petitioner deserving condonation of delay as also to set aside the ex parte decree. From the facts on record the learned trial Court did not find that the petitioner could make out “sufficient cause” for condonation of delay and also for setting aside the ex parte decree. Thereby the application under Section 5 was rejected followed by rejection of the application under Order 9 Rule 13 read with section 151 CPC – both the applications having been filed on the same date i.e. 13th March 2008.27. In the backdrop of the above discussion this Court does not find any infraction of the law as laid down by Hon’ble Single Bench in AIR 2000 Calcutta page 280 in the matter of Jahar Dey v. Smt. Brojeshwari Saha (supra) as also by the Hon’ble Apex Court in the matter of Commissioner Nagar Parishad Bhilwara v. Labour Court Bhilwara and Another reported in (2009) 3 SCC 525 (supra).28. This Court finds that the judgment of the Full Bench of our High Court reported in AIR 1976 Calcutta page 415 in the matter of Mamuda Khateen and Others v. Beniyan Bibi and others (supra) holding inter alia that an order rejecting the Memorandum of Appeal following the rejection of an application under Section 5 of the Limitation Act for condonation of delay in filing the appeal is not a decree but an order against which a revision and not an appeal can be preferred has been held not to be good law in AIR 2005 Supreme Court page 226 in the matter of Shymsundar Sharma v. Pannalal Jaiswal and Others. In AIR 2005 Supreme Court Page 226 (supra) the Hon’ble Apex Court took the view that the dismissal of an appeal consequential to dismissal of the application for condonation of delay is a decision in appeal and not in revision.29. To the mind of this Court the reasoning of the learned trial Court is reflected in the Order impugned No. 131 dated 23 March 2011 Furthermore from the ratio of AIR 2005 SCC page 226 (supra) it can be deduced that the scope of disposal of an application for condonation of delay accompanying another substantive application by a common order is by now judicially settled. Admittedly the learned trial Court first considered both the applications under Section 5 of the Limitation Act followed by the application Order 9 Rule 13 read with Section 151 CPC dismissing them on merits.30. This Court also finds that the learned Appellate Court has adequately applied its mind by considering in detail the facts of the case. The learned Appellate Court in the opinion of this Court also rightly applied the law by affirming the order of the learned trial Court as follows-“I find that learned trial Court heard the petition under Section 5 of the Limitation Act and the Misc. Case simultaneously and by his impugned order he at first rejected the petition under Section 5 of the Limitation Act and thereafter the learned trial Court has dismissed the Misc. Case.”31. The learned First Appellate Court also took cognizance of the fact that in her application under Section 5 of the Limitation Act the petitioner has not explained the delay of 2 years in filing the Misc. Case No. 62 of 2008 under Order 9 Rule 13 read with Section 151 CPC.32. This Court is also inclined to notice that in 2009 volume 6 SCC page 195 in the matter of Sneh Gupta v. Devi Sarup and others the Hon’ble Apex Court was pleased to hold that this Court in exercise of its jurisdiction under Article 227 of the Constitution of India should not normally interfere with concurrent findings of fact returned by two Courts.33. In the backdrop of the above discussion this Court finds no reason to interfere with the orders impugned dated 18th January 2013 and 23rd March 2011.34. CO 553 of 2013 is accordingly dismissed.35. There will be however no order as to costs.