Shrimati Bharati Koley vs Pratik Das & Anr
2021 Latest Caselaw 2758 Cal

 5 & 6.
12.04.2021
  S.D.

                                    S.A. 301 of 2018
                                          With
                                     CAN 1 of 2021
                                          With
                                   S.A.T. 302 of 2018
                         CAN 1 of 2018 (Old CAN 10336 of 2018)
                         CAN 2 of 2018 (Old CAN 10337 of 2018)
                                     CAN 3 of 2021

                                  Shrimati Bharati Koley
                                            vs.
                                    Pratik Das & Anr.

                   Mr. Rabindranath Mahato
                   Mr. Animesh Das
                   Mr. Dipankar Ghosh
                   Mr. Aritra Shankar Roy
                                                   ...For the Appellant.


                   Affidavit of service filed in Court be kept on record. It

             reflects the application for appropriate order as well as the

             application for condonation of delay in preferring the appeal

             have been effected upon the respondents.

It is submitted that the petitioner as plaintiff filed suit

before the Trial Court being T.S. No. 181 of 1988 for a decree

of declaration of her tenancy right and permanent injunction

and other relief. The suit was contested and the learned Trial

Court by the judgment and decree dated 15.9.2004 dismissed

the suit and allowed the counter claim directing the plaintiff

to deliver the vacant possession of the suit premises in favour

of the defendants within 90 days. Being aggrieved, an appeal

being Title Appeal No. 69 of 2004 was preferred by the

appellant/petitioner in the Court of learned District Judge,

Howrah and the appeal was ultimately heard and decided by

the learned Additional District Judge, 2nd Court, Howrah by a

judgment and decree dated 22.3.2004 whereby the appeal was

dismissed. Now, the Second Appeal has been preferred

against the judgment dated 22.3.2004 passed by the learned

Additional District Judge, 2nd Court, Howrah in S.A. No. 212

of 2018. It is now submitted that 2018 is wrongly noted, it

ought to be 2008 and accordingly it is pointed out that the

Hon'ble Court by judgment dated 20.3.2014 allowed the said

appeal being S.A. No. 212 of 2008 by remanding the case for

fresh decision holding inter alia that there is no challenge of

the decree of eviction passed in the counter claim by the

petitioner. In view of the observation of the Hon'ble Court

remanding the case, the plaintiff/appellant preferred a First

Appeal in respect of the decree of eviction being T.A. No.

1287 of 2014. Therefore, the appeal being T.A. No. 59 of 2004

and T.A. No. 1287 of 2014 were heard analogously by the

Appeal Court by a common judgment dated 20.2.2018 and

both the appeals were dismissed by the learned Additional

District Judge, 2nd Court, Howrah. Now, challenging the said

judgment, the appellant has preferred two Second Appeals

being S.A.T. No. 301 of 2018 and S.A.T. No. 302 of 2018 before

this Hon'ble Court on 17.7. 2018. But there was a delay of 50

days due to the reason that the appellant became ill and she

was suffering from jaundice and she was advised by her

doctor to take rest and that she was bedridden on and from

16.5.2018 to 7.7. 2018 which finds support from the medical

certificate issued by Dr. Debasis Ghosh. It is also pointed out

that on 8.7.2018, the petitioner met her learned Advocate to

get necessary instructions to file two appeals and the learned

Advocate took some time for necessary drafting and such

draft was made ready and two appeals were filed only on

17.7.2018 which are out of time. According to the Stamp

Reporter's report, the delay is only 45 days.

Having considered the explanation given in the

application being CAN 2 of 2018 (Old CAN 10337 of 2018),

the prayer for condonation of delay is allowed and the delay

of 50 days in preferring the Memorandum of Appeal is

condoned.

Thus, the application being CAN 2 of 2018 (Old CAN

10337 of 2018) is disposed of.

In re: CAN 1 of 2021

This is an application for condonation of delay in filing

the appeal being S.A.T. No. 301 of 2018 and bearing in mind

the explanation as given by the appellant in the earlier

application noted in the above order, the prayer for

condonation of delay of 50 days is allowed and condoned.

Thus, the application being CAN 1 of 2021 is disposed

of.

No order as to costs.

In re: CAN 1 of 2018 (Old CAN 10336 of 2018)

In this application, the petitioner/appellant has prayed

for appropriate order dispensing with filing of the certified

copy of the judgment dated February 20, 2018 passed in T.A.

No. 9 of 2004 and analogous hearing of the appeals being

S.A.T. No. 301 of 2018 and S.A.T. No. 302 of 2018 inter alia on

the ground that both the appeals arising out of the common

judgment dated 20.2.2018 passed by the learned Additional

District Judge, 2nd Court at Howrah passed in T.A. No. 69 of

2004 and T.A. No. 1287 of 2014 and the petitioner has already

filed a certified copy of the judgment and decree dated

November 15, 2004 passed in T.S. No. 181 of 1998 and

certified copy of the judgment and decree dated February 20,

2018 in T.A. No. 1287 of 2014 in S.A.T. No. 302 of 2018.

Since the issues arising out of the suit are common and

the parties are common in both the appeals, prayer for

analogous hearing may be considered if there are substantial

questions of law to be decided.

However, the petitioner/appellant may be exonerated

from filing certified copy of the judgment dated February 20,

2018 passed in T.A. No. 69 of 2004 in another case being

S.A.T. No. 301 of 2018.

Thus, the application being CAN 1 of 2018 (Old CAN

10336 of 2018) is disposed of.

No order as to costs.

(Shivakant Prasad, J.)