Sri Parimal Kumar Choudhury vs Smt. Tripti Kundu & Ors
2021 Latest Caselaw 38 Cal

     05.01.
3
      2021
AG
 M                                 SA 133 of 2019
Ct                                      With
02                                 CAN 1 of 2020
                                        With
                                   CAN 71 of 2020


                          Sri Parimal Kumar Choudhury
                                        vs
                             Smt. Tripti Kundu & Ors

              Mr. Gopal Ch. Ghosh,
              Ms. Anyasha Das,
                                            ... For the Appellant.

                   The instant appeal shall be heard on the following
              substantial questions of law :-

                   1. Whether both the Courts below were justified
                       in dismissing the suit when the defendant no.
                       2 who claims right, title and interest on the
                       strength of a purported deed did not adduce
                       evidence; on the other hand the evidence, so
                       adduced by the constituted attorney, who is
                       not aware of the special facts supposed tobe
                       known to the principle?

                   2   Whether both the Courts below were justified
                       in overlooking the material part of an evidence
                       where   the    constituted   attorney     of   the
                       defendant no. 2 himself admitted that the
                       original purported deed was in possession of
                       the defendant no. 2 at the time of execution of
                       the power of attorney which contradicts the
                       stand of the said witness that the said original
                       purported   deed   was    handed   over   to   the
                       plaintiff some time in the year 1978?

                   3. Whether the judgment and decree of both the
                    2




        Courts below are perverse inasmuch as it did
        not consider the material evidence and based
        upon    the     evidence   which   have     a   little
        consequence?
     Let the Lower Court Records be called for through
Special Messenger at the cost of the appellant. Such
cost shall be put in within a week.
     The appellant is directed to put in the postal costs
and requisites namely, postal costs and written up
notice forms for effecting service of notice of appeal
upon the remaining respondents by speed post within a

week from date.

After arrival of the Lower Court's Records, office shall examine the same and shall issue notice of arrival of Lower Court Records under Rule 12 of Chapter 9 of the Appellate Side Rules upon the learned Advocate-on- record for the appellant forthwith.

The appellant is directed to prepare and file eight numbers of requisite informal paper books-printed, typewritten or cyclostyled, as the case may be -out of court, within a period of four weeks from the date of service of notice of arrival of Lower Court Records on the learned Advocate for the appellant.

Liberty is granted to the parties to pray for early disposal of the appeal before the appropriate bench.

CAN 1 of 2020

The appellant is directed to serve the copy of the application to the respondent by speed post and shall file affidavit-of-service on the returnable date.

It is alleged that taking advantage of the dismissal of the appeal the respondents are contemplating to a third party interest so as to create a cumbersome

situation. It is further alleged that immediately after dismissal of the suit and amidst the pendency of an appeal the suit property was transferred by the original defendant and ,therefore, unless the order restraining them from creating any third party interest is passed, the appellant shall suffer irreparable loss and injury.

In view of the above, the respondents are restrained from transferring, alienating, disposing of or creating any third party interest in any manner whatsoever for a period of six weeks from the date or until further orders, whichever is earlier.

The application is made returnable after three weeks before the appropriate Bench.

(Kausik Chanda , J)                  (Harish Tandon, J)