Bishnupada Bhowmick & Ors vs Sujit Kumar Samanta & Ors
2021 Latest Caselaw 3600 Cal

06.07.2021

RP

S.M.A.T. 2295 of 2000 + IA No.CAN 1 of 2000 (Old No.CAN 6173 of 2000) (Application not found) (Via Video Conference) r

Bishnupada Bhowmick & Ors.

Vs.

Sujit Kumar Samanta & Ors.

The second miscellaneous appeal tender is of

year 2000. Additional Stamp Reporter had on 6 th

November, 2006 reported that valuation of the appeal

was not furnished in the memo. There are several

notings in order sheet to show that thereafter the

learned advocate never appeared to have information

regarding the report, for steps to be taken. None

appears on behalf of appellants.

On noticing the classification as second

miscellaneous appeal tender we looked at order dated

12th August, 1998 passed in the title suit. We

reproduce the ordered portion hereinbelow.

"that the petition dated 01/4/98 under Order

XXXIX Rules 1 and 2 and petition dated

22/6/98 under Section 151 both are of the

Code of Civil Procedure filed by the plaintiffs

are allowed on contest without any cost.

Contesting defendants No.1 to 3 are hereby

restrained by an order of temporary injunction

from interfering with the peaceful possession

of plaintiffs till disposal of the suit.

To date."

Lower appellate Court passed impugned

judgment dated 29th April, 2000 in Misc. Appeal no.23

of 1998 (Sri Sujit Kr. Samanta & Ors. vs. Bishnupada

Bhowmik). The ordered portion from said judgment

is also reproduced hereinbelow:

"That the Misc. Appeal be and the same is

allowed on contest but without any order as to

costs.

The impugned order no.9 dated 12.8.1998

passed by the Ld. Court below is hereby set

aside. The order of injunction passed by that

order is hereby vacated.

Let a copy of this order along with the L.C.R.

be sent to the Ld. Court below for information

and record."

Section 104 in Civil Procedure Code, 1908

provides for orders, from which appeal lies. One of

the provisions is for an appeal to lie from any order

made under rules, from which an appeal is expressly

allowed by rules. We find the judgment of trial Court

was in passing order under order XXXIX rules 1 and

2. As such the appeal is barred by sub-section (2) in

section 100. This is because order XLIII specifically

provides for appeal from, inter alia, an order passed

under rules 1 and 2 in order XXXIX. In view of

aforesaid, we find the appeal is not maintainable.

Considering that the learned advocate has

not taken any step to remove reported defect, the

appeal is dismissed.

(Arindam Sinha, J.)

(Biswajit Basu, J.)