Court allowed the appeal and application against impugned judgment dated 04.09.2018. Set aside impugned judgment and restored Misc. Case No.25 of 2013 for merits disposal by Additional District Judge within three months without adjournment unless avoidable. No order as to costs.
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04.05.2022 SL No.18 Court No.8 (gc)
FMA 1011 of 2019 With CAN 1 of 2019 (Old No: CAN 392 of 2019)
Arabinda Kumar Marik & Ors. Vs.
Smt. Arati Ghosh (Prafulla Kr. Ghosh Since Deceased) & Ors.
Ms. Shebatee Datta,
…for the Appellants.
Mr. Bhagbat Chaudhuri, Mr. Biswajit Ghosh,
…for the Respondents.
By consent of the parties, the appeal and the application are taken up together and disposed by this common order.
The Appellate Court cannot dismiss the appeal on merit in view of the Order 41 Rule 17(1) of the Code of Civil Procedure. The Coordinate Bench on 28th August, 2019 also expressed similar view at the time of admission of the appeal.
Under such circumstances, the judgment impugned dated 4th September, 2018 is set aside. Misc. Case No.25 of 2013 is restored.
We request the learned Additional District Judge, 1st Court, Howrah to dispose of Misc. Case No.25 of 2013 on merits after giving opportunity of hearing to the parties as expeditiously as possible preferably within a period of three months from the date of communication
2
of this order without granting any adjournment to either of the parties unless it is avoidable and subject to the convenience of the learned Court. We make it clear that in the event either of the parties fail to appear, the Misc. Case may be decided in absence of the other party.
Accordingly, the appeal being FMA 1011 of 2019 and the application being CAN 1 of 2019 (Old No: CAN 392 of 2019) stand disposed of.
However, there shall be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.
(Sugato Majumdar, J.)
(Soumen Sen, J.)
3 issues framed by the court
Whether the appeal can be dismissed on merits given procedural restrictions under Order 41 Rule 17(1) CpC.
How should the Misc. Case No.25 of 2013 be disposed of and what time limit applies for hearing.
What are the consequences of a failure of parties to appear for hearing the Misc. Case?
2 provisions across 2 enactments
Arabinda Kumar Marik & Ors.
Smt. Arati Ghosh (Prafulla Kr. Ghosh Since Deceased) & Ors.
Sugato Majumdar
Soumen Sen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
