Calcutta High Court (Appellete Side)
Sri Uttam Chand Surana & Anr vs Sri Prabir Guha & Ors on 27 September, 2021
27.09.2021
Item No.27
Ct. No. 04
RP
S.A. 104 of 2015
With
CAN 2 of 2021
(Via Video Conference)
r
Sri Uttam Chand Surana & Anr.
Vs.
Sri Prabir Guha & Ors.
Mr. Haradhan Banerjee
Mr. Amitava Pain
Mr. S. Dutta
Mr. P.P. Mukhopadhyay
.... For appellants
Ms. Sohini Chakrabarty
Mr. Arijit Sarkar
Miss. Prajaaini Das
.... For respondents no.1 to 3
Mr. Banerjee, learned advocate appears on
behalf of appellants and moves the appeal for
admission. He submits, the appeal stands admitted
by implication of order dated 21st November, 2014
made by Supreme Court in Civil Appeal 10472 of
2014 (appellants' own case). Direction made by
Supreme Court is reproduced below:-
"We, therefore, set aside the impugned order,
remit the matter back to the High Court for
framing of appropriate questions of law and
decision on such questions in accordance
with law."
Mr. Banerjee submits, questions arise on
each of the three findings of the trial Court,
affirmed by the lower appellate Court and are
involved in this appeal, for its admission. The
rejection of plaint came on a demurer application,
where statements made in the plaint were not
relied upon as correct. He refers to order dated
16th August, 1979 in writ petition of Smt. Arati
Guha vs. Corporation of Calcutta & Ors. (Matter
no.434 of 1979) to demonstrate that the passage
is common. He submits further, neither his client
nor their predecessor-in-interest filed any suit.
There is no question of dismissal for default of a
non-existent suit, to bar his clients' this suit.
Lastly, he refers to paragraphs 13 and 15 of the
plaint to show, his clients had pleaded recurring
cause of action lastly arose on 15 th April, 2006. He
submits, his clients' suit is for injunction and
covered by article 113 in Limitation Act, 1963. He
relies on judgment in Shakti Bhog Food
Industries Ltd. v. Central Bank of India reported
in AIR 2020 SC 2721 wherein Supreme Court had
relied on several of its earlier judgments to say that
under article 113, period of limitation would be
differently computed depending upon the last day
when the cause of action therefor arises.
Ms. Chakrabarty, learned advocate appears
on behalf of respondents and draws attention to
paragraphs 7 and 8 in the plaint to submit, said
writ petition was therein referred. Parties to the
suit were opposing parties in the writ petition.
There was finding in said order dated 16th August,
1979 (supra) that plaintiffs did not need the
common passage for purpose of ingress and egress.
Hence, no question arises regarding the plaint
having been rejected as barred by res judicata. On
query from Court she submits, it was her clients'
suit that was dismissed for default.
We admit the appeal on following questions
to be answered.
i)Where a writ petition against a statutory
body and private respondents is dismissed,
can findings in it operate as res judicata
between petitioner and private respondents in
a subsequent suit?
ii)Can an earlier suit by defendants,
dismissed for default, bar a subsequent suit
brought by plaintiffs, who were defendants in
the earlier suit, under Order IX Rule 9 in Code
of Civil Procedure, 1908?
iii) Can a suit for injunction, where there is
averment in the plaint of recurring cause of
action with date, on which it lastly arose, be
barred by operation of article 58 in limitation
Act, 1963?
The lower Court records be called for, on
receipt of which appellant will put in requisites for
preparation of paper books and issuance of notice of
appeal.
Connected application is to be moved before
the learned single Judge having determination.
Liberty to mention before the learned single
Judge for hearing of the appeal, when made ready.
(Arindam Sinha, J.)
(Sugato Majumdar, J.)
