Smt. Rinku Jaiswal & Ors vs Sri Sambhu Nath Tiwari & Ors
2022 Latest Caselaw 3702 Cal

29.06.2022
Sl.No. 14
Ct.No.3
Amalranjan
             IN THE HIGH COURT AT CALCUTTA
              CIVIL APPELLATE JURISDICTION
                     APPELLATE SIDE

                         SA 103 of 2022

                 Smt. Rinku Jaiswal & Ors.
                            VS
               Sri Sambhu Nath Tiwari & Ors.
                           With
                     IA NO: CAN/1/2022

              Mr. Bijoy Adhikary
              Mr. Debasish Kundu
              Mr. Souma Subhra Ray
              Ms. Sushmita Adhikary
              Ms. Doyel Dey
                                                   ...for the appellants

              Mr. Souri Ghosal
              Mr. Prabhat Kumar Singh
                                                ...for the respondents

Re: CAN/1/2022

We admit the appeal.

By the impugned judgment and decree

dated 1st April, 2022 the appeal of the

appellants/defendants was dismissed by the first

appellate court on the ground of limitation. The

trial court had held that the title and possession

of the subject property belonged to the

respondents.

Learned counsel for the appellants in this

second appeal contends that the impugned

judgment and decree of the trial court was

obtained ex parte, inasmuch as, the original

defendant at the time of service of the summons

was in an unconscious state, suffering from

paralysis. He could not have any notice or

knowledge of how and on whom the summons

had been served. After his death, his legal heirs

and representatives became aware of the decree

only when the notice of execution was sought to

be served upon them.

Being apprised of these facts, we do not

want unnecessary time to be wasted in litigation,

in an enquiry into any technicalities with regard

to service of the summons or the reason for non-

appearance of the appellants/defendants. By

the impugned judgment and decree, the

appellants/defendants have lost the title and

possession of the property on purely technical

grounds without the merits of the matter having

been gone into by the courts. Any reasonable

person would not want to lose title to or

possession of a property by avoiding summons

or by staying away from courts.

We are of the view that the entire suit

should be heard out on contest. To protect the

interest of the respondents the suit should be

heard out within a limited period of time not

exceeding one year from date.

The appellants should compensate them for

the costs incurred in defending the appeal today,

being assessed at Rs. 10,000/- to be paid by the

appellants to the respondents' advocate on

record by 31st July, 2022.

We set aside the impugned judgment and

decree dated 1st April, 2022 in Title Appeal No.

24 of 2022 of the first appellate court and the

learned trial court dated 30th September, 2019 in

TS No. 393/2019 and remand the entire suit to

the trial court to be tried and decreed not later

than 30th June, 2023.

The appeal (SA 103 of 2022) is, accordingly,

disposed of.

The connected application (CAN 1 of 2022)

praying for stay of execution is unnecessary, as

the impugned judgment and decree has been set

aside by the court. It is disposed of, accordingly.

( Subhendu Samanta,J. ) ( I. P. Mukerji,J. )