Krishna Gopal Mallick vs Shyamal Kumar Nandan & Ors

Protik Prakash Banerjee, J

Pursuant to my earlier order dated November 25, 2019 both the opposite parties and their learned advocate in the learned Court below have been served. The service on the proforma opposite parties having been dispensed with I hold that the petition is ready as regards service. Affidavit-of-service has been filed Court today. Let it be kept on records.

Despite such service none appears on behalf of the opposite parties. I have, therefore, no alternative but to proceed ex-parte.

The petitioner is aggrieved by an order of the learned Court below rejecting the application under Section 5 read with Section 14 of the Limitation Act, 1963 for condonation of delay in respect of filing application under Section 7(1) and 7(2) of the West Bengal Premises Tenancy Act, 1997 (hereafter the said Act of 1997).

By the impugned Order No. 9 dated April 6, 2019 not only were two applications rejected but also two applications of the defendant/petitioner were dismissed as time-barred and the application of the plaintiffs/opposite parties for striking out the defence under Section 7(3) of the said Act of 1997 was allowed.

It is the case of the petitioner that they were given no opportunity to file a counter against the same. I have gone through the records including the Order No. 9 and while it is mentioned therein that all the said applications were adjudicated together. I do not find from the order-sheet which has been annexed starting from Order No. 7 dated February 18, 2019 till Order No. 9 dated April 6, 2019 that any opportunity was granted to file a counter even to the petition for striking out of defence. No reason has been assigned why the facts alleged by the defendant/petitioner have been held not to have made out any cogent reason for the petitioner not to have applied within the statutory limitation. The said order is unreasoned to that extent.

In that view of the matter, I have no hesitation in exercising my jurisdiction under Article 227 of the Constitution of India not merely because of denial of any opportunity of being heard to the petitioner in respect of the application under Section 7(3) of the said Act of 1997 but also because the learned Court below rejected his other applications without assigning any cogent reason for the same. Accordingly, Order No. 9 dated April 6, 2019 passed by the learned Court below in Title Suit No. 113 of 2018 rejecting the four applications made by the defendant/petitioner under Section 5 of the Limitation Act, 1963 read with Section 14 thereof for condonation of delay in taking out the application under Section 7(1) and Section 7(2) of the said Act of 1997 as also rejecting the said applications under Sections 7(1) and 7(2) of the said Act of 1997 and the order to the extent that it allows the application under Section 7(3) of the said Act of 1997 are set aside and the matter is sent back on remand to the learned Court below for deciding each issue on its merits after giving the petitioner an opportunity of being heard by filing a counter to the application under Section 7(3) of the said Act of 1997 expeditiously preferably within a period of six months from the date of communication of this order. The suit shall not be disposed before completing this exercise.

The petitioner shall cause service of this order on the opposite parties who are not represented despite notice.

The revisional application is disposed of.

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

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.