Judgment:
1. This application is at the instance of the plaintiff and is directed against the order dated May 24, 2007 passed by the learned Civil Judge (Junior Division), 1 st Court, Contai in Misc. Case No.25 of 2006 arising out of the Title Suit No.187 of 2004.
2. The plaintiffs / petitioners herein instituted a suit being Title Suit No.187 of 2004 against the State of West Bengal for declaration of title and permanent injunction before the learned Civil Judge (Junior Division), 1 st Court, Contai. Summons was duly served upon the State but none appeared on behalf of the State.
3. Accordingly, the suit was decreed ex parte on October 4, 2005. Long time thereafter, on October 17, 2006 the State of West Bengal filed an application under Order 9 Rule 13 of the C.P.C. for setting aside the ex parte decree and that application was registered as Misc. Case No.25 of 2006. The State of West Bengal also filed another application under Section 5 of the Limitation Act in support of the said misc. case.
4. The petitioners filed a written objection against the said misc. case and the application under Section 5 of the Limitation Act. Thereafter, the learned Trial Judge heard the application under Section 5 of the Limitation Act. By the impugned order, the learned Trial Judge has allowed the application under Section 5 of the Limitation Act thereby condoning the delay in preferring the said misc. case. Being aggrieved, this application has been preferred by the plaintiffs.
5. Now, the question is whether the impugned order should be sustained.
6. Upon hearing the learned Counsel for the parties and on going through the materials on record, I am of the view that in exercising the revisional jurisdiction, this Hon’ble Court is to find out whether the opposite party has shown sufficient reasons for non-appearance at the time of call or whether the State has shown sufficient reasons for the delay in preferring the said misc. case.
7. It is not the case that the State / opposite party was not aware of the institution of the said title suit. From the order dated February 9, 2005 as appearing in paragraph no.5 of the page no.5 of the application, it appears that the registered notice was duly sent upon the defendant nos.1 and 2 and those notices might relate to the service of notice on the application for temporary injunction. But by the subsequent order dated June 9, 2005 as appearing in paragraph no.6 of the application at page no.6, it reveals that the A/D cards have been duly received after proper service. But the defendants did not turn up. Accordingly, the learned Trial Judge fixed the next date for ex parte hearing on July 15, 2005. Ultimately, the said suit was decreed ex parte on October 4, 2005.
8. The above contention of the petitioners is not disputed by the State. Therefore, fact remains that the summons of the suit was duly served upon the State of West Bengal but the State of West Bengal did not contest the suit. As regards the delay, as appearing from the application under Section 5 of the Limitation Act appearing at page no.21 of the application, I find that the State has contended that no proper summons of the suit was served upon the State / defendants. But this is not the correct position as per materials on record. So, this contention of the State cannot be accepted. Rather, it appears that this is a pure false statement on the part of the State that no proper summons was ever served upon the State. The contention of the State is that on searching on October 16, 2006, the State came to know about the decree passed ex parte against the State. But this statement has also become falsified in view of the letter dated March 23, 2006 submitted by the petitioners before the concerned Block Land and Land Reforms Officer pursuant to the ex parte decree. Therefore, the contention as raised by the opposite party in paragraph nos.2 and 3 are not true at all.
9. There was a delay of 1 year and 13 days in preferring the application under Order 9 Rule 13 of the C.P.C. and the grounds for the delay have been described in paragraph nos.2 and 3 which have been held false by the above observations. Therefore, I am of the view that the opposite parties have failed to show sufficient reasons for non-appearance at the time of passing the ex parte decree on October 4, 2005.
10. The learned Trial Judge has observed in the impugned order that he thought that an opportunity must be given to the opposite party to contest the Title Suit No.187 of 2004 for the ends of justice, otherwise, they will suffer irreparable loss and injury.
11. By passing such observations the learned Trial Judge has committed errors of law in not considering the essential ingredients which are to be looked into while disposing of an application under Section 5 of the Limitation Act. Therefore, the learned Trial Judge has failed to address the matter in dispute between the parties properly and his findings cannot be sustained.
12. In that view of the matter, I am of the opinion that the impugned order calls for interference. Accordingly, the revisional application is allowed. The impugned order is hereby set aside. The application under Section 5 of the Limitation Act stands dismissed.
13. Consequently, the Misc. Case No.25 of 2006 stands dismissed on the ground of limitation.
14. Considering the circumstances, there will be no order as to costs.
15. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.