Shree Shree Iswar Satyanarayanji ... vs Sarad Kumar Burman & Ors
2021 Latest Caselaw 1315 Cal

 12 & 13
   SK
Ct. No. 18
10.02.2021

C.O. No. 228 of 2021 (Via Video Conference)

Shree Shree Iswar Satyanarayanji & Ors.

Vs.

Sarad Kumar Burman & Ors.

With

C.O. No. 61 of 2021

Shree Shree Iswar Satyanarayanji & Ors.

Vs.

Sarad Kumar Burman & Ors.

Mr. Aniruddha Chatterjee, Sr. Adv., Mr. Animesh Paul, Ms. Fatima Hassan, Ms. Shaloni Basu ... For the petitioners.

Mr. Partha Pratim Roy, Mr. Ayan Kumar Boral, Ms. Bishalaxmi Ghosh ... For the opposite parties.

Mr. Srijib Chakraborty, Mr. Subhasis Chakraborty, Mr. Amit Chowdhury, Ms. Sushmita Singh ... For the proposed added party Mr. Yogesh Gupta.

Affidavit of service filed in Court today be kept with

the record.

These two revisional applications under Article 227

of the Constitution of India are arising out of the suit

for eviction being Title Suit No. 152 of 2000 pending

before the 2nd Court of learned Civil Judge, (Senior

Division), at Howrah, as such taken up together for

disposal.

The plaintiffs are the petitioners of both the

revisional applications. The defendants are contesting

the suit with counter-claim.

The plaintiffs are seeking a judgment on admission

on their application under Order XII Rule 6 of the

Code of Civil Procedure filed on June 18, 2018.

This Court by an order dated December 10, 2019

passed in C.O. 4133 of 2019 requested the learned

trial Judge to dispose of the said application under

Order XII Rule 6 of the Code on the next date fixed

and if for some unavoidable reasons the said

application could not be disposed of on the said date

the same was directed to dispose of within two weeks

thereafter positively.

The petitioners in C.O. 61 of 2021 complain that in

spite of the said earlier direction of this Court the said

application has not yet been disposed of. The

petitioners, therefore, by the aforesaid revisional

application are seeking a further direction upon the

learned trial Judge for immediate disposal of their

application under Order XII Rule 6 of the Code.

The petitioners in C.O. 228 of 2021 are challenging

the order dated January 19, 2021 passed in the said

suit whereby the learned trial Judge has fixed

consecutive dates for hearing of pending 28

applications under Order I Rule 10 (2) of the Code

along with the said application under Order XII Rule 6

of the Code.

The grievance of the petitioners is that the hearing

of the application under Order XII Rule 6 cannot be

tagged with the pending applications under Order I

Rule 10(2) of the Code as the nature of the two

applications are quite different and the application

under Order XII Rule 6 is required to be disposed of

first in view of the earlier direction of this Court.

There is a dispute with regard to the number of

pending application under Order I Rule 10(2) of the

Code as such this Court directed the petitioners to file

a supplementary affidavit disclosing the exact number

of the said pending applications.

Such supplementary affidavit has been filed today,

which is taken on record.

On perusal of the said supplementary affidavit, it

appears that on July 14, 2003 as many as 12

applications under Order I Rule 10 (2) of the Code

were filed and thereafter on September 9, 2003 a

separate set of six applications of same nature were

filed.

There is a little bit of dispute between the parties as

to the number of pending application as some of those

applications alleged to have been disposed of.

Be that as it may, investigation to the said dispute

is completely irrelevant to decide the present matters.

The pendency of the said numerous applications for

addition of party has caused the imbroglio which

needs to be removed.

The principles behind Order XII Rule 6 of the Code

are to give the plaintiff a right to speedy judgment.

The provision was amended by the amendment Act of

1976 of the Code.

To appreciate the scope of Order XII Rule 6 after

the aforesaid amendment, it is appropriate to quote

paragraph 39 of the decision of the Hon'ble Supreme

Court in the case of KARAM KAPAHI AND OTHERS

VS. LAL CHAND PUBLIC CHARITABLE TRUST AND

ANOTHER reported in (2010) 4 Supreme Court

Cases 753:-

"39. In the 54th Law Commission Report, an amendment was suggested to enable the Court to give a judgment not only on the application of a party but on its own motion. It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering the Judges to use it "ex debito justitiae", a Latin term, meaning a debt of justice. In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the Court always retains its discretion in the matter of pronouncing judgment."

The legal right of the plaintiffs to get a decree on

admission cannot be put on halt for the disposal of

the applications of third parties to the suit under

Order I Rule 10(2) of the Code as the said exercise

runs counter to the object sought to be achieved by

the said amendment of the said provision of the Code.

The learned trial Judge, therefore wholly

misdirected himself in fixing the application under

Order XII Rule 6 of the Code along with the

applications under Order I Rule 10(2) of the Code.

Mr. Srijib Chakraborty, learned advocate seeks to

intervene into the matter on behalf of one Yogesh

Gupta one of the applicants of the pending

applications for addition of party. Said Yogesh Gupta,

not being a party to the suit has no right of hearing,

however, for ends of justice this Court allows Mr.

Chakraborty to advance his argument.

Mr. Chakraborty submits that in an earlier

revisional application being C.O. 2437 of 2018 a co-

ordinate Bench of this Court has directed the

application filed by his client to be heard along with

the application filed by the plaintiffs under Order XII

Rule 6 of the Code. He, therefore, prays that the

application filed by his client may be heard along with

the application of the plaintiffs. He further submits

that the hearing of the application filed by his client is

going on before the learned trial Judge today and he

undertakes on instruction that such hearing would be

concluded today from the side of his client.

In view of the discussion made above the learned

Trial Judge is directed to dispose of the application

under Order XII Rule 6 of the Code filed by the

petitioners within two weeks from the date of

communication of this order notwithstanding

pendency of any other applications on record

excepting the application filed by Mr. Chakraborty's

client Mr. Yogesh Gupta.

The time limit fixed for the disposal of the aforesaid

two applications is peremptory and mandatory.

The order dated January 19, 2021 is modified to

the extent indicated above.

It is made clear that this Court has not gone into

the merit either of the application under Order XII

Rule 6 of the Code or of the pending applications

under Order I Rule 10(2) of the Code.

C.O. 61 of 2021 and C.O. 228 of 2021 are disposed

of with the above terms.

No order as to costs.

Urgent Photostat certified copy of this order, if

applied for, be supplied to the parties subject to

compliance with all requisite formalities.

(Biswajit Basu, J.)