Kalpana Sadhukhan & Ors vs M/S. Kwality Ice (I) Ltd. & Anr
2022 Latest Caselaw 1177 Cal

20.                                       FMAT 481 of 2021
      14-03-2022
sg
                                           CAN 1 of 2021
                                           CAN 2 of 2022
        Ct. 8

                                     Kalpana Sadhukhan & Ors.
                                                Versus
                                   M/s. Kwality ICE (I) Ltd. & Anr.



                          Mr. Surajit Kumar Mitra, Sr. Adv.
                          Mr. Soumyen Dutta, Adv.
                          Mr. Aniket Mitra, Adv.
                          Mr. Tapas Singha Roy, Adv.
                                                       ...for the appellants


                          The appeal is admitted.

                          The appeal is arising out of an order of remand passed by

                   the learned First Appellate Court. The appeal is required to be

                   heard on the following questions of law:

                          a) Whether the Lower Appellate Court erred both in law

                              and fact in taking cognizance of those documents and

                              reversed the Judgement of the trial court based on the

                              same (as shown by the Appellant in appeal only) which

                              were not exhibited before the trial court and also

                              rejected by the same Appellate Court as "additional

                              evidences" being an application under Order 41 Rule

                              27 of the Code of Civil Procedure, 1908 by Order no.

                              69 dated 05.12.2018?

                          b) Whether the Lower Appellate Court erred both in fact

                              and in law in allowing the Defendant no.2 to rely upon

                              those documents (after remanding the matter to the

                              Learned Trial Court) which were rejected to be

                              additionally evidences by Order No. 69 dated
                            2




            05.12.2018 in an application of the defendant no.2

            under Order 41 Rule 27 of the Code and further passed

            its final Judgment in appeal based on those documents

            only?

         c) Whether the Lower Appellate Court erred both in fact

            and in law in remanding a matter directing the Trial

            Court to look into "all relevant materials already on

            record" and thereby allowed documents which were

            not exhibited and rather rejected by itself in an

            application of the appellant under Order 41 Rule 27 of

            the Code?


         The petitioner is directed to serve copies of the stay

application, substitution application and the memorandum of

appeal upon the contesting respondents within one week from date

by speed post with acknowledgement due with an intimation that

the appeal shall be listed on 4th April, 2022 and in the event the

respondents are not represented on the adjourned date, the appeal

and the connected applications may be heard in their absence.

There shall be a stay of operation of the judgment dated

19th February, 2021 till disposal of the appeal. The defendants,

however, shall not execute the decree passed by the learned Trial

Court.

(Ajoy Kumar Mukherjee, J.) (Soumen Sen, J.)