Calcutta High Court (Appellete Side)
Purnima Sarkar & Anr vs Dulal on 22 January, 2021
36 22.1.21 C.O.178 of 2013
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PURNIMA SARKAR & ANR. VS. DULAL
CHANDRA BISWAS & ANR.
Mr. Saunak Bhattacharya
Mr. Sumitava Chakraborty
..for the petitioners
Mr. Promit Bag
Mr. R.B. Prosad
..for the opposite parties
In re: C.A.N.6 of 2020
Affidavit-of-service is taken on
record.
C.A.N. 6 of 2020 is an application
for condonation of delay in filing the
restoration in connection with C.O.178 of
2013, which was dismissed for default on
March 6, 2020.
Mr. Bhattacharya, learned Advocate
for the petitioners point out that the
revisional application was admitted by an
order dated November 27, 2019 on the ground
that the point raised in the said revisional
application was a question referred to the
larger Bench. An interim order was also
passed restraining the opposite parties from
proceeding with the matter in the trial
court.
The opposite party filed an
application for vacating the said interim
order on December 20,2019. The said
application was registered as C.A.N.12651 of
2019 and an affidavit in opposition was used
by the petitioners to the said application.
In the meantime, the matter appeared before
another learned Judge of this Court on March
6, 2020. This Court by an order dated
November 27, 2019 directed that the hearing
of C.O 178 of 2013 would be adjourned till
the disposal of the issue before the larger
Bench. The department by mistake sent the
file to the Court of another learned Judge
and by an order dated March 6, 2020, the said
application was dismissed for default and the
interim order was vacated.
I accept the contention of the
petitioners with regard to delay in filing
the application for restoration as it was not
for the petitioners to keep track of the file
when the matter was adjourned till disposal
of the issue by a larger Bench. When they
subsequently came to know of the same, the
application for restoration was filed along
with the application for condonation of
delay.
This application is allowed.
In re: C.A.N. 5 of 2020
This is an application for
restoration of C.O.178 of 2013, which was
dismissed for default on March 6, 2020. On
perusal of the grounds stated in the
application at paragraphs 3 to 9, I am
satisfied that the petitioners were prevented
by sufficient cause from attending the Court
when the matter was dismissed for default.
C.A.N.5 of 2020 is allowed.
C.O.178 of 2013 is restored to its
original file and number.
In re: C.A.N. 12651 of 2019
This is an application for vacating
the interim order.
The revisional application was
admitted on November 27, 2019.
The dispute in this revisional
application is whether an application for
preemption would be maintainable if an entire
demarcated portion of land held by a raiyat,
was sold. As the question is before the
larger Bench, this Court deems it fit to
admit the revisional application and adjourn
the hearing till disposal of the issue by the
larger Bench. As the revisional application
will become infructuous, if the judgment and
order is executed, this Court directs stay of
all further proceeding in Misc. Case No.79 of
2009 till disposal of the application.
Till the disposal of the revisional
application the preemptors are also
restrained from changing the nature and
character of the suit property and creating
any third party interest and or encumber the
same in any manner whatsoever. The interim
order, so passed, will become effective upon
payment a cost of Rs.5,000/- (in cash) to Mr.
R.B. Prasad, learned Advocate within January
27, 2021. Upon payment of the same, Mr.
Prasad will accept the amount in cash and
grant receipt. The receipt will be deposited
before this Court on January 27, 2021. In
case of default, the interim order will stand
automatically vacated without any further
reference to this Court.
C.A.N. 12651 of 2019 is disposed
of.
In re : C.O.178 of 2013
Supplementary affidavit filed in
Court today be taken on record.
(Shampa Sarkar,J.)
