Dr. Smt. Saswati Kirtania @ Dr. ... vs Smt. Kakali Das & Anr
2022 Latest Caselaw 1309 Cal

14.                                           FA 102 of 2018
      17-03-2022
sg
                                              CAN 2 of 2021
        Ct. 8
                        Dr. Smt. Saswati Kirtania @ Dr. Saswati Dutta & Anr.
                                               Versus
                                       Smt. Kakali Das & Anr.

                                      (Through Video Conference)


                          Mr. Partha Pratim Ray, Adv.
                          Ms. Sayantanee Chattopadhyay, Adv.
                                               ...for the appellants

                          Mr. Suprovat Bhattacharya, Adv.
                          Mr. Mrinal Kanti Biswas, Adv.
                                               ...for the respondents

We have heard the learned Counsel for the parties.

The learned Trial Judge dismissed the partition suit fled by

the appellants for failure to join necessary parties and to include

all joint properties in the hotchpotch of the suit. The basis of the

order appears to be disclosure of some alleged right of one Dhiren

Kirtania. The name of Dhiren Kirtania appears to be transpired

during evidence and contemporaneously not admitted by the

plaintiffs. The learned Trial Judge however, found Dhiren Kirtania

to be a co-owner of the property and non-inclusion of the suit

properties of Dhiren Kirtania in the hotchpotch of the present suit,

resulted in the dismissal of the partition suit.

Mr. Partha Pratim Ray, learned Counsel appearing on

behalf of the appellants submits that no where in the pleadings the

defendants have alleged that Dhiren Kirtania is the co-owner of

the suit property or his properties were considered to be the joint

properties for the purpose of the suit. However, having regard to

the fact that the name of Dhiren Kirtania came up during

evidence, we are of the view that the suit should have been

disposed of in his presence.

On that score, we feel the learned Trial Court was justified

in dismissing the suit for non-joinder of necessary party and non-

inclusion of the properties, which alleged to be the exclusive

property of the Dhiren Kirtania.

However, the suit is a partition suit. This order would not

prevent the appellants to file a fresh suit upon curing the defects as

in a partition suit such dismissal would not act res-judicata in

subsequent proceeding with fresh addition of party and inclusion

of properties. There can also be more than one preliminary decree

on the discovery of new facts.

Taking into consideration such aspects of the matter, we

remand the matter to the learned Trial Court with liberty to the

appellants to serve interrogatories upon the respondents within

two weeks from date with regard to the properties which are

required to be incorporated and the parties who need to be added

in the partition suit and thereafter to amend the plaint as may be

advised.

On the basis of such interrogatories, the learned Trial

Court shall decide the suit afresh and to pronounce a fresh

judgment after taking evidence, if necessary.

In the event the appellants failed to serve interrogatories,

the impugned decree shall revive.

The impugned judgment and the decree is, thus, set aside.

The appeal, being FA 102 of 2018 and the application

being CAN 2 of 2021 are accordingly, disposed of.

Urgent photostat certified copy of this order, if applied for,

be supplied to the parties upon compliance of all requisite

formalities.

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