Item- A-571. sg 08-09-2026 Ct. 6 CO 1416 of 2026 Samir Kumar Bose Versus Pradip Kumar Bose Mr. Tanmoy Mukherjee Mr. Sounak Mondal Mr. Arindam Kundu Mr. Aniket Nanda …for the petitioner Ms. Aditi Kumar …for the opposite party This application under Article 227 of the Constitution of India is at the instance of the defendant and is directed against an order dated 6th February, 2026 passed by the learned Civil Judge (Senior Division), 5th Court, Alipore, South 24 Parganas in Ejectment Suit no. 39 of 2022. By the order impugned, the application under section 151 of the Code of Civil Procedure praying for recalling of the order fixing the suit for ex parte hearing stood rejected. Mr. Mukherjee, learned advocate appearing for the petitioner submits that the written statement of the petitioner was accepted upon payment of costs. He submits that thereafter, the petitioner could not take steps in the suit as there was a talk of settlement between the parties. He submits that the petitioner was all along diligent in defending the suit. The learned advocate appearing for the opposite party seriously disputes the submission of the learned advocate for the petitioner. She submits that the instant suit is a suit for eviction of a trespasser filed sometimes in the year 2022. She submits that the petitioner filed the written statement belatedly and such written statement has not been accepted by the learned trial judge. The petitioner filed a 2 show cause petition which is yet to be accepted. She further submits that on several dates, the petitioner did not take any steps. She submits by an order dated 12th August, 2024, the petitioner was directed to file a show cause petition but such show cause petition was also not filed. The learned advocate for the opposite party places reliance upon the decisions of the Hon’ble Supreme Court in the case of Shib Cotex vs. Tirgun Auto Plast Pvt. Ltd. reported in (2011) 9 SCC 678 and Ishwarlal Mali Rathod vs. Gopal & Ors. reported in (2021) 12 SCC 612 in support of her contention that Courts shall not grant adjournments in routine manner and mechanically and shall not be a party to cause for delay in dispensing justice. Heard the learned advocates for the respective parties and perused the materials placed. Opposite party filed a suit for ejectment, recovery of khas possession and mesne profits. Record reveals that by an order dated 3rd January, 2023, the learned trial judge fixed 8th February, 2023 for ex parte hearing. On 8th February, 2023, the petitioner filed an adjournment petition and the learned trial judge, after hearing the submission of the respective parties, took note of the verbal undertaking given by the learned advocate for the defendant for filing the written statement on the next date, allowed the prayer for adjournment subject to payment of cost of Rs.3000/-. It is not in dispute that the petitioner paid the said amount of Rs.3000/- and the money receipt was produced before the learned trial judge. The order dated 8th February, 2023 has attained 3 finality as the same has not been challenged by either of the parties. Upon a reading of the order dated 8th February, 2023, this Court is of the considered view that by allowing the prayer for adjournment subject to payment of costs the trial judge impliedly extended the time to file the written statement by the next date. It is not in dispute that on the next date i.e. 11th May, 2023, the written statement was filed. Records further reveal that on 6th May, 2024, the defendant did not take any steps and 12th August, 2024 was fixed for filing the show cause by the defendant as to why the suit shall not run ex parte against the defendant. Records further reveal that on 12th August, 2024, the defendant did not file any show cause petition and the learned trial judge, by an order dated 12th August, 2024 directed the suit to proceed ex parte against the defendant and 17th December, 2024 was fixed for ex parte hearing of the suit. On 17th December, 2024, the affidavit in chief was filed by the PW-1. PW-1 was examined in part and certain documents were also marked as exhibits and 22nd January, 2025 was fixed for further evidence of PW-1. On 22nd January, 2025, the PW-1 was examined in full and discharged and 24th February, 2025 was fixed for ex parte argument. It is at that stage that the petitioner approached the Court with an application under section 151 of the Code of Civil Procedure praying for recalling the order fixing the suit for ex parte hearing and to permit the petitioner to contest the same. Order IX Rule 7 of the Code of Civil Procedure 4 states that where the Court has adjourned the hearing of the suit ex-parte and the defendant, at or before such hearing, appears and assigns good cause for his previous non- appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day, fixed for his appearance. In the application under section 151 of the Code of Civil Procedure the case made out by the petitioner as a ground for non-appearance on the previous dates is that the plaintiff approached and confirmed that he would honour the promise and that he has been proceeding with the instant suit on wrong advice and the matter would be settled as per the mutual agreement arrived at and he would not proceed with the suit and ask the defendant not to take any necessary steps in the suit. The petitioner states that relying on such assurance of the plaintiff, the petitioner did not take any steps in the suit. Records reveal that a written objection was filed by the opposite party to such application. However, the written objection has neither been annexed to this civil revisional application nor a copy of the same has been produced by the learned advocate for the petitioner at the time of hearing of this civil revision application. The story of settlement, compromise or assurance did not inspire confidence of the court for want of documentary evidence in support thereof. The written statement filed by the petitioner has already been accepted by the Court. However, no issues appear to have been framed in the instant suit though the written statement has been 5 accepted and is on record. Though the case made out by the petitioner for not taking steps on several dates may not be convincing but considering the fact that the written statement filed by the petitioner has been accepted and the PW-1 has adduced evidence in chief, the Court is inclined to exercise discretion in favour of the petitioner by allowing the petitioner to contest the suit from the stage of cross-examination of the PW-1 subject to certain stringent conditions. In Ishwarlal Mali Rathod (supra), the Hon’ble Supreme Court, after taking note of the special facts of the said case that ten adjournments were given between 2015 to 2019 and twice the orders were passed granting cross- examination as a last chance and that too at one point of time even a cost was also imposed and even thereafter also when lastly the High Court passed an order extending the time by specifically mentioning in the said order that no further time shall be granted, still the petitioner/defendant never availed of the liberty and the grace shown. In the light of such special fact, the Hon’ble Supreme Court held that no further opportunity is to be granted. The Hon’ble Supreme Court further noted that by that time the main suit has been disposed of. The said decision being distinguishable on fact cannot be applied to the case on hand. In Shiv Cotex (supra), in spite of several opportunities being granted, plaintiff did not adduce any evidence and the learned Trial Judge proceeded under Order 17 Rule 3(a), closed the evidence of the plaintiff and dismissed the suit. The Appellate Court dismissed the civil 6 appeal. However, the High Court had upset the concurrent judgment and decree in an appeal under section 100 of the Code on the ground that stakes in the suit being very high, the plaintiff should not be non suited on no evidence. On such factual matrix the Hon’ble Supreme Court held that if stakes were high, the plaintiff ought to have been more serious and vigilant in prosecuting the suit and proceedings the evidence. The said decision is distinguishable on facts. However, there is no quarrel to the proposition of law laid down in Shiv Cotex (supra) that past conduct of a party in the conduct of the proceedings is an important circumstance which the Court must keep in mind whenever a request for adjournment is made and a party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in. Keeping in mind the aforesaid proposition of law and the past conduct of the petitioner as recorded supra, the opposite party should be compensated for the delay that will be caused pursuance to any liberty, if granted in favour of the petitioner. For all the reasons as aforesaid, this Court is inclined to afford a last opportunity to the petitioner to contest the instant suit subject to certain terms. (i) The order fixing the suit for ex parte hearing shall stand recalled subject to payment of cost of Rs.30,000/- by the petitioner to the opposite party on or before September 10, 2026. (ii) In the event the cost as aforesaid is paid by the 7 petitioner to the opposite party within the time limit mentioned hereinbefore, the PW-1 shall remain present on the next date i.e. on 11th September, 2026 to face cross-examination by the defendant. (iii) After completion of the cross-examination of the PW-1, the learned trial judge shall fix a date for evidence of the defendant and proceed with the suit in accordance with law. The learned trial judge is requested to make an endeavour to dispose of the suit as expeditiously as possible but preferably by the end of the month of December, 2026 without granting any unnecessary adjournment to either of the parties. With the aforesaid observations and direction, this civil revisional application stands disposed of. It is, however, clarified that if the cost as directed is not paid within the stipulated time frame, this order shall not enure to the benefit of the petitioner. Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities. (Hiranmay Bhattacharyya, J.)