Dr. Rita Chatterjee vs Santanu Kumar Ghosh

The defendant in an eviction suit is the petitioner before this Court. The grievance of the petitioner is that the trial court allowed two applications of the plaintiff/opposite party, respectively under Order XXXIX Rule 7 and under Order VI Rule 17 of the Code of Civil Procedure, both not only ex parte but without even directing service of notice on the defendant/petitioner.

The opposite party seeks to justify such orders and in aid of such justification, seeks to take the Court to the factual premise of the matter. The opposite party further points out that even after coming to know of the suit in December, 2016, the petitioner has come up late with the present application under Article 227 of the Constitution of India.

It is undoubtedly true that this Court may choose not to interfere under Article 227 of the Constitution of India if the hands of the petitioner are not clean or if there is substantial delay in preferring the same. However, in the present case, it is sufficient that the defendant/petitioner points out the glaring irregularity in the orders impugned for the Court to interfere with such patently illegal orders. The court below was absolutely without jurisdiction in passing orders appointing Commissioner for holding local inspection as well as for amendment of the plaint without granting any opportunity to the defendant/petitioner to contest those.

In view of such glaring irregularity in the orders dated November 22, 2016 and May 02, 2017, C.O. No . 2421 of 2017 is allowed, thereby setting aside the orders impugned as well as directing the Commissioner''s report already filed to be taken off the record of the suit. The trial court is directed to take up the hearing of the plaintiff''s applications under order XXXIX Rule 7 and Order VI Rule 17 of the Code of Civil Procedure upon granting opportunity to the defendant/petitioner to file written objection thereto and to contest the same. Such exercise would preferably be completed within two months from the date of communication of this order.

There will be no order as to costs. Urgent certified copies of this order, if applied for, be made available to the parties upon compliance of all requisite formalities.