C.O. 3951 OF 2023 20.08.2026 Tapan Kumar Jana Sl no. 28 - Vs – Ct no. 2 Bhaskar Chandra Maity P.M. Mr. D. Banerjee Mr. S. Shasmal ... for the petitioner 1. Affidavit of service filed by the petitioner is taken on record. 2. Learned counsel for the petitioner submits that opposite party has duly been served. Perusal of the record indicates that this case has a chequered history. 3. Petitioner/plaintiff filed a petition for pre- emption against the present opposite party bearing Misc. Case No. 12 of 2010(8). This order was settled by way of solenama. The amicable settlement was recorded by the learned Civil Judge, Senior Division on 15th November, 2011 and the case was allowed on compromise as per terms and conditions of the solenama petition. The Solenama petition was made as part of the order. The opposite party was granted liberty to withdraw the sum of money deposited by the petitioner. The case was dismissed in default against the proforma opposite party No. 2 namely Sri Himadri Sekhar Bhuniya who was the original landlord. 4. Learned counsel for the petitioner submits that in accordance with law the petitioner had deposited a sum of Rs. 55,000/- on 1st March, 2010 vide challan No. 6 with the learned Civil Judge, Junior Divison, Kakdwip, 24 Parganas (South). 5. Learned counsel submits however, thereafter, at the back of the petitioner the opposite party moved an application dated 23.01.2012 for recalling of the order dated 15.11.2011 on the ground that he was made to enter into the compromise on certain false assurances and, therefore, the order dated 15th November, 2011 may be recalled. 6. Learned counsel submits that notice of this application was never served upon the petitioner. learned counsel submits possibly notice was served upon the learned advocate, who had represented the petitioner in the pre- emption case, however, he was no more being briefed by the petitioner. 7. Learned counsel submits that by that time the petitioner had no contact with the learned 2 advocate. Learned counsel submits that the learned Trial Court took up this application on 11th June, 2014 and passed an order allowing for recalling of the order dated 15th November, 2011. 8. Learned counsel for the petitioner submits that since the petitioner was not in the knowledge of any such order for a long time and having came to know about the same at a very belated stage, filed the revision petition before the learned District Judge, along with an application for condonation of delay. 9. Learned counsel submits that the learned Appellate Court without going into the merits of the application for condonation of delay, dismissed the application vide impugned order dated 26th July, 2023. 10. Learned counsel submits that the order passed by the learned Civil Judge allowing the pre-emption to recall the order dated 15.11.2011 and the impugned order passed by the learned District Judge in Civil Revision case No. 17 of 2017 are patently wrong and are liable to be set aside. 3 11. The opposite party has not appeared despite service. The court, therefore, proceeds to dispose of the petition on merit. 12. Perusal of the record indicates that the learned Civil Judge passed the order dated 11th June, 2014 which does not make out any sense. The order dated 11th June, 2014 is reproduced as follows : Order No. 22, dated 11.6.2014 “Ld. Advocate for the opposite party submitted that the case has already been settled in out of court and resulting of which a solenama application was filed by both petitioner and opposite party No. 1 appearing their signature in the said compromise application and which are identified by their respective Advocates. On the basis of the said compromise application this Court has recorded the statement of petitioner and OP No. 1 and subsequently, passed an order of disposal of this case in terms and condition of the solenama application vide order No. 17 dated 15.11.2011. However, the present petitioner did not comply the terms and condition of the solenama application and the order of this court and as such, the OP NO. 1 4 did not withdraw the preamption amount from this Court. Considering all aspects, Ld. Advocate for the OP NO. 1 is praying for reconsidering the order No. 17 dated 15.11.11 for the purpose of contesting disposal of this case by reconsidering the earlier order dated 15.11.11. On perusal of the instant petition, solenama application, order dated 15.11.11 and other materials on record and also considering the submission of Ld. Advocate for the OP NO. 1 it appears that in spite of due knowledge about the order of this court the present petitioner did not turn up for obeying the order of this court. However, Ld. Advocate for the petitioner is also present and gave the consent in allowing the petition u/o-23 rule-3 of CPC. As there is a breach of terms and condition of the solenama application and the violation of the order of this court, I think the petition for reconsidering the order No. 17 dated 15.11.11 should be allowed for the interest of justice. Hence it is ordered that the petition dated 18.01.12 praying for reconsidering the order No. 17 dated 15.11.11 is hereby considered and allowed.” 13. The revision filed against this order before the learned District Judge along with 5 the application for condonation of delay also seems to have not been conducted carefully. The impugned order is reproduced as follows : Order No. 22 dated 26.07.2023 “Hazira filed on behalf of both side. Today is fixed for hearing of the petition under section 5 of the Limitation Act. The petitioner is found absent in spite of repeated calls. Heard Ld. Advocate on behalf of the opposite party. The instant revisional application under section 115A of C.P.C. is filed on 22.12.2017 mainly against an order dated 20.01.2012 and 09.10.2015. It is stated in the petition for condonation of delay that the petitioner has no wilful delay and he was a victim of conspiracy. The grounds stated are found not genuine to this court. It may not be stated that delay is bona fide on the part of the petitioner, Hence the delay is not condoned. Hence, it is ordered that the petition under Section 5 of the Limitation Act is rejected. Accordingly the instant Civil Provisional Case No. 17 of 2017 is dismissed.” 6 14. Without making any further comments about the order dated 11th June, 2014, it was expected that the learned District Judge, South 24 Parganas should have considered the application for condonation of delay on merit. Learned District Judge could have examined the reasons for condonation of delay taking into account all the attendant facts and circumstances. It is a settled proposition that the endeavour of the Court is always to see that the matters are adjudicated finally on merits, unless and until the delay and latches are malafide, intentional or baseless. 15. This court considers that the impugned order cannot sustain in the eyes of law and the same is set aside. It is also pertinent to mention that order under challenge before learned appellate court had far reaching consequences. 16. The matter is remanded back to the learned District Judge, South 24 Parganas for fresh consideration in accordance with law. Learned District Judge shall consider the application for condonation of delay after giving 7 notice to both the parties and an opportunity of being heard independently, without being influenced by the order of this court. 17. In view of the discussion made herein above, this petition is disposed of with all pending application, if any. 18. Urgent photostat certified copy of this order, duly applied for, be given to the parties upon compliance of all usual requisite formalities. (Dinesh Kumar Sharma, J.) 8