Arabinda Kumar Marik & Ors vs Smt. Arati Ghosh (Prafulla Kr. ...
2022 Latest Caselaw 2515 Cal

04.05.2022
 SL No.18
 Court No.8
    (gc)


                            FMA 1011 of 2019
                                   With
                              CAN 1 of 2019
                        (Old No: CAN 392 of 2019)

                     Arabinda Kumar Marik & Ors.
                                  Vs.
                  Smt. Arati Ghosh (Prafulla Kr. Ghosh
                        Since Deceased) & Ors.

                                    Ms. Shebatee Datta,
                                                  ...for the Appellants.
                                    Mr. Bhagbat Chaudhuri,
                                    Mr. Biswajit Ghosh,
                                               ...for the Respondents.

By consent of the parties, the appeal and the

application are taken up together and disposed by this

common order.

The Appellate Court cannot dismiss the appeal on

merit in view of the Order 41 Rule 17(1) of the Code of

Civil Procedure. The Coordinate Bench on 28th August,

2019 also expressed similar view at the time of

admission of the appeal.

Under such circumstances, the judgment impugned

dated 4th September, 2018 is set aside. Misc. Case

No.25 of 2013 is restored.

We request the learned Additional District Judge,

1st Court, Howrah to dispose of Misc. Case No.25 of

2013 on merits after giving opportunity of hearing to the

parties as expeditiously as possible preferably within a

period of three months from the date of communication

of this order without granting any adjournment to either

of the parties unless it is avoidable and subject to the

convenience of the learned Court. We make it clear that

in the event either of the parties fail to appear, the Misc.

Case may be decided in absence of the other party.

Accordingly, the appeal being FMA 1011 of 2019

and the application being CAN 1 of 2019 (Old No: CAN

392 of 2019) stand disposed of.

However, there shall be no order as to costs.

Urgent Photostat certified copy of this order, if

applied for, be given to the parties on usual

undertaking.

(Sugato Majumdar, J.) (Soumen Sen, J.)