Sampa Acharyya vs Malay Acharya
2021 Latest Caselaw 40 Cal

05.01.2021                              SAT 304 of 2019
Court No. 02
                                             with
Item No. DL - 08
nandy
                                         CAN 1 of 2019
                                         (CAN 9112 of 2019)
(Appeal Admitted)



                                        Sampa Acharyya
                                              Vs.
                                         Malay Acharya

                    Mr. Probal Kumar Mukherjee, Senior Advocate
                    Mr. Dhiraj Trivedi, Advocate
                                                  ......for the Appellant
                    Mr. Saunak Bhattacharya, Advocate
                                                 ......for the Respondent

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

i) Whether the parties to the proceedings are required to re-examine themselves and re-exhibit the documents, which have already been exhibited by proving with cogent evidence as the appellate Court directed the trial Court to decide the issues afresh while remanding the matter?

ii) Whether both the Courts were justified in passing the impugned judgment as the exhibited documents were not re-exhibited after the remand and the order of the remand pre- supposes the fresh evidence to be adduced meaning thereby the evidence already-on-record has been wiped out don't from part of the record?

iii) Whether both the Courts were justified in passing the judgment, as the documents were not re- exhibited and the advantages taken in the cross- examination shall loose its efficacy and shall remain on paper?

Let the Lower Court Record be called for by

Special Messenger at the cost of the appellant. The appellant is directed to put in the Special Messenger Cost for bringing the Lower Court Record within one week from date.

Upon deposit of such cost, Office shall bring the Lower Court Record by Special Messenger within a week. After arrival of the LCR, the department shall examine the same and if found complete, shall put a seal in this regard. The department shall ensure that the LCR arrives to this court within one week from the date of deposit of the Special Messenger Cost.

The appellant shall prepare eight copies of informal paper books - printed, typewritten or cyclostyled, as the case may be - out of court, within a period of eight weeks from date. All other formalities relating to preparation of Paper books are dispensed with.

It goes without saying that all the relevant documents and papers which are required for adjudication of the dispute in the appeal, shall be included in the paper book.

After the LCR is found complete, the department shall serve a notice upon the learned Advocate for the appellant, under Rule 12 Chapter IX of the Appellate Side Rules, within a week therefrom.

Since the respondent has entered appearance through caveat, the service of notice of appeal upon him is dispensed with. The Vakalatnama filed along

with caveat shall be treated to have been filed in the appeal itself.

After the completion of all the formalities, liberty is granted to the respective parties to pray for early listing of the matter.

CAN 1 of 2019 (CAN 9112 of 2019)

It is a fight between two siblings over the property belonging to their father. By virtue of the purported deed, a right is created in to the appellant and the appellant has initiated a proceeding for recovery of possession on the strength of title. The respondent filed a counter-claim in the suit assailing the purported deed being an outcome of fraud, undue practice and coercion.

The suit for recovery of possession based on title has been dismissed and it has been informed to this Court that the appeal filed by the respondent against the dismissal of the counter-claim has also been dismissed for default. It is alleged that taking advantage of the impugned judgment, the respondent is contemplating to transfer, assign and/or creating third party interest in the property.

The aforesaid allegations have been denied by the respondent.

Considering the facts as stated above, we think that it is a fit case where the appellant is entitled to a protection.

Accordingly, the respondent is restrained from creating any third party interest and/or dealing with the property in any manner whatsoever as well as introducing any third party thereto till the disposal of the instant application.

The respondent is directed to file affidavit-in- opposition within two weeks from date. Reply thereto, if any, be file one week thereafter.

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

Liberty is granted to the respective parties to mention for early listing of the said application.

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