Suvendu Adhikari vs Abhishek Banerjee
2021 Latest Caselaw 1639 Cal

03.03.2021
Suman/Mithun
List - S/L
Sl. No. 32
Ct. No. 09
                                      C.O./404/2021

                                     Suvendu Adhikari
                                           -Vs.-
                                     Abhishek Banerjee


                      Mr.    Aniruddha Chatterjee, Adv.,
                      Mr.    Billwadal Bhattacharyya, Adv.
                      Mr.    Rajdeep Majumder, Adv.,
                      Mr.    Srijib Chakraborty, Adv.,
                      Mr.    Debanik Banerjee, Adv.

                                                        ...for the Petitioner.
                      Mr. Anirban Ray, Adv.,
                      Mr. Samik Chakraborty, Adv.,
                      Mr.Sanjay Basu, Adv.,
                      Mr. Piyush Agrawal, Adv.,
                      Mr. A. Basu, Adv.,
                      Mr. Soumen Mohanty, Adv.,
                      Mr. R.Ray, Adv.
                                                ... for the respondent.

The petitioner has sought for transfer of Title Suit No.52 of 2021 (Abhishek Banerjee Vs. Suvendu Adhikari) presently pending in the file of the learned Civil Judge (Senior Division), 1st Additional Court at Burdwan, District - Purba Burdwan to the file of the learned Civil Judge (Senior Division) at Contai, District- Purba Medinipur, inter alia, on the grounds mentioned in the application.

Although there was no direction for issuance of notice with the copy of the application upon the opposite party, Mr.Anirban Ray, learned Advocate for the opposite party has entered appearance through video link and submits for service of copy of the application upon the opposite party. Accordingly, a copy of the

application be served on the opposite party through his learned Advocate appearing in the matter.

It is submitted at the outset for the opposite party by referring a decision in the case of Vivekananda Nidhi & Ors. Vs. Asheema Goswami (SMT) reported in (2000) 10 SCC 23 adverting to the Paragraph 10 of the cited judgment to contend that the copy of the application is necessarily to be served on the opposite party. It has been held that "when an order is passed suo motu under Section 24 CPC, there is no question of issuing notice to the other side. Section 24 CPC itself provides that either on the application of any of the parties and after notice to the parties and after hearing such of them that desired to be heard, or of its own motion without such notice, the High Court or the District Court can at any stage pass appropriate orders under Section 24 CPC, if the conditions provided therein are satisfied. Now, on the facts of the present case, it is difficult to appreciate how the order of the learned District Judge can be considered to be a suo motu order when he was moved by an application by the respondent and on that application the learned District Judge thought it fit to invoke his jurisdiction and pass an order under Section 24 CPC. Therefore, invoking of powers under Section 24 CPC was not suo motu, but only on the basis of the abovesaid application. Once that conclusion is reached the statutory provisions of Section 24 start operating and whatever may be the ultimate nature of the order, the notice had to go to the other side."

Mr.Aniruddha Chatterjee, learned Advocate for the petitioner has relied on a decision in the case of R. Aurnagiri and Others Vs. C.Ranganathan and Others reported in 1987 (Supp) Supreme Court Cases 48 that filing of the application under Section 24 of the Code of Civil Procedure operates as the stay of

the proceeding sought to be transferred pending before the Court below. It would appear in the cited decision during the pendency of a transfer application, held, sub-ordinate court erred in disposing of the matter refusing request for short adjournment and without recording his presence and in this context it is submitted on behalf of the petitioner that the filing of the application under Section 24 CPC and its pendency before the High Court would tantamount to stay of the proceeding pending in the sub-ordinate court.

It is submitted on behalf of the petitioner that though the learned Advocate for the opposite party has entered appearance through video link and even the junior appears in Court physically, no Vokalatnama has been filed on behalf of the opposite party. Let it be so recorded.

Having heard the learned Advocates for both the parties and in consideration of the grounds, let there be an interim order of stay of all further proceedings in Title Suit No.52 of 2021 pending in the Court of the learned Civil Judge (Senior Division), 1st Additional Court at Burdwan till the end of March, 2021.

Let the matter appear two weeks hence.

Parties are at liberty to exchange their affidavits, if they so wish.

(Shivakant Prasad,J)