Nemai Chandra Hazra & Ors vs Sri Lalit Mohan Maity & Ors
2021 Latest Caselaw 3989 Cal

28.07.2021

PG S.A. 68 of 2017 With I.A. no. CAN 1 of 2008 (Old CAN 2350 of 2008) r

On the death of Smt. Manjari Hazra, her heir(s) and legal representaive(s) Nemai Chandra Hazra & Ors.

Vs.

Sri Lalit Mohan Maity & Ors.

Md. Nure Zaman Mr. Jahangir Badsha.............for appellants

Surviving plaintiff no.2 is appellant. Md.

Nure Zaman, learned advocate appears on behalf of

appellant and submits, his client is full-blood sister

of deceased plaintiff no. 1 and his legal

representative. Defendants are wrongfully claiming

suit property, which is why the suit was filed. It was

decreed by trial Court but the decree set aside in

appeal. Only ground was maintainability of the suit.

First appellate Court erroneously reversed the

judgment on said ground, while holding that other

issues had been correctly decided by the trial Court.

The issue regarding maintainability was

issue no. 1 in the suit. It is reproduced below:

" Is the suit maintainable in its present form?"

We find the trial Court said on facts, inter

alia, as follows:

"The record reveals that this suit was instituted on 11.10.96. The defdt. have not stated the date of death of said Jugal Maity

but the evidence on record do suggest that said Jugal Maity died on 6.12.96 and the record also reveals that paralysis took place on 5.8.96. and the disputed deeds have been executed in between the period of the filing of the suit and few days before the date of death of Jugal Maity i.e. in between 5.11.96 to 30.11.96."

We have ascertained that defendant did not apply

under rule 2 in order XXXII , Code of Civil Procedure.

We admit the appeal on the following

question of law to be answered.

"Where there was no application to have the plaint taken off the file under rule 2 in order XXXII, could the suit be dismissed on the ground of maintainability?"

Let lower Court records be called for.

Appellant shall put in requisites for preparation of

paper books and thereafter issuance of notice of

appeal.

Liberty to mention the appeal for hearing

before the learned single Judge having determination.

(Arindam Sinha, J.)

(Saugata Bhattacharyya, J.)