Prakriti Ranjan Bera Vs Bimal Kumar Bera and Ors. — Calcutta HC (2024) — LawSathi Research

Prakriti Ranjan Bera Vs Bimal Kumar Bera and Ors. — Calcutta HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

Revisional application allowed; the Learned Additional District Judge requested to take steps afresh under Order 6 Rule 10 CPC and Order 1 Rule 10 CPC, affording respondent no.1/the petitioner herein opportunity of hearing and filing of written objection, if any, as expeditiously as possible.

Issue for consideration

Whether the Learned Additional District Judge could dispose of/allow the appellant's applications under the provisions of the CPC without first satisfying himself about service of notice upon respondent no.1 (the sole plaintiff), and whether the resulting impugned order is sustainable. +1 more

Court's answer

By allowing all the applications without being satisfied about service of notice on respondent no.1, the learned Judge denied him the opportunity of being heard; consequently, the impugned order is not sustainable in the eye of law.

Ratio / Principle

Notice of appeal was never served upon respondent no.1, i.e., the sole plaintiff.

Key takeaways

The learned Judge is requested to take steps afresh under Order 6 Rule 10 CPC and Order 1 Rule 10 CPC, after giving respondent no.1 (the petitioner herein) opportunity of hearing and permitting filing of written objection, if any, as expeditiously as possible.ratio¶24

Detailed headnote1 paragraphs

Calcutta High Court (Civil Revisional Jurisdiction), CO 3285 of 2022, pronounced 20.11.2024 — Bibhas Ranjan De, J.: Civil revision by Sri Prakriti Ranjan Bera (respondent no.1/sole plaintiff of Title Suit No. 80 of 2013, decreed on 31.01.2018 and assailed in Title Appeal No. 17 of 2018) allowed against order no.8 dated 06.07.2019 of the Learned Additional District Judge, 1st Court (in-Charge), Contai, District – Purba Medinipur, whereby the learned Judge had allowed the appellant's applications under Order 6 Rule 17 CPC and Order 1 Rule 10 CPC. Perusal of certified orders from 20.02.2018 (filing of the appeal) to 06.07.2019 showed that summons/notice of appeal was never served upon respondent no.1, the sole plaintiff; a subsequent order dated 14.08.2019 merely directed the appellant to take steps upon him. Disposing of all the applications without satisfaction as to service denied respondent no.1 the opportunity of being heard; the impugned order was accordingly held not sustainable in law. The learned Judge was requested to take steps afresh under Order 6 Rule 10 CPC and Order 1 Rule 10 CPC, giving respondent no.1 opportunity of hearing and filing of written objection, if any. None appeared on behalf of the opposite parties despite service of notice.

20.11.2024 Ct. No. 22 Sl. No.117 KB

In The High Court at Calcutta Civil Revisional Jurisdiction Appellate Side

CO 3285 of 2022

Sri Prakriti Ranjan Bera -versus-

Sri Bimal Kumar Bera & Ors.

Mr. Tanmoy Mukherjee Mr. Souvik Das Mr. Rudranil Das

… For the petitioner.

Affidavit of Service filed in Court is taken on record.

None appears on behalf of the opposite parties in spite of service of notice.

This Civil Order has been filed challenging the order no.8 dated 6^th July, 2019 passed by Learned Additional District Judge, 1^st Court (in-Charge) at Contai, District – Purba Medinipur in connection with Title Appeal No. 17 of 2018 arising out of Title Suit No.80 of 2013 whereby Learned Judge allowed two applications under Order 6 Rule 17 of the Code of Civil Procedure (hereinafter referred to as CPC) and under Order 1 Rule 10 CPC respectively.

Learned counsel appearing on behalf of the petitioner has drawn my attention to the certified copy of the orders passed in the appeal and contended that no service was filed and after filing of appeal,

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summons were not served upon the respondent no.1/petitioner herein.

It is submitted that respondent no.1 being the sole plaintiff filed the Title Suit No. 80 of 2013 before the Learned Civil Judge (Junior Division), 1^st Additional Court, Contai, District – Purba Medinipur and that suit was decreed on 31.01.2018 which was assailed in Title Appeal No. 17 of 2018.

It is further contended that nowhere from the orders passed by the Appellate Court that since the time of filing of the appeal, it is found that summons were served upon the respondent no.1, i.e. plaintiff of the suit.

It is submitted that Learned Judge without being satisfied about service of notice upon the respondent no.1, disposed of all the applications filed by the appellant/opposite party no.1 herein.

I have gone through all the certified copies of the orders from 20^th February, 2018 when appeal was filed till 06.07.2019 when the Learned Judge allowed applications under Order 6 Rule 1 CPC as well as Order 1 Rule 10 CPC.

From the subsequent order dated 14^th August, 2019, it is found that appellant was directed to take steps upon the respondent no.1/petitioner herein.

Therefore, it is clear that notice of appeal was never served upon the respondent no.1 i.e. sole

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plaintiff and thereby learned Judge denied the right of opportunity of being heard by allowing all the applications under Order 6 Rule 1 CPC as well as under Order 1 Rule 10 CPC.

Therefore, the impugned order, in my humble opinion, is not sustainable in the eye of law.

As a sequel, the revisional application stands allowed.

Learned Judge is requested to take steps under Order 6 Rule 10 CPC as well as under Order 1 Rule 10 CPC after giving opportunity of hearing and filing of written objection, if any, to the respondent no.1/the petitioner herein to the appeal as expeditiously as possible.

All parties shall act on the basis of a server copy of this order duly downloaded from the official website of this Court.

Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on compliance of necessary formalities.

(Bibhas Ranjan De, J.)