Calcutta High Court (Appellete Side)
Sg Ct. 8 Sharmistha Majumder vs Kriti Safui & Ors on 11 May, 2022
FAT 110 of 2022
Item-45 11-05-2022 CAN 1 of 2022
sg Ct. 8 Sharmistha Majumder
Versus
Kriti Safui & Ors.
Mr. Hirak K. Mitra, Sr. Adv.
Mr. D. Sen, Adv.
Ms. Suchismita Chatterjee, Adv.
Mr. Malay K. Seal, Adv.
...for the appellant
Mr. Surajit Nath Mitra, Sr. Adv.
Mr. S.S. Banerjee, Adv.
Mr. Soumabho Ghose, Adv.
Mr. Rishav Datt, Adv.
Mr. Soumalya Ganguli, Adv.
Ms. Tiana Bhattacharya, Adv.
...for the respondents
The appellant claims to be the second wife of Rana Safui,
since deceased. The defendants are the mother and daughters of
Rana Safui, since deceased.
The plaintiff claiming to be the second wife, has filed a
suit for partition. The plaintiff for obvious reason did not
implead the first wife of Rana Safui, as according to the plaintiff,
the first marriage was dissolved by a decree of divorce which
fact has however been disputed by the respondent/defendant nos.
1 and 2. The learned Trial Judge in deciding the application for
injunction in a suit for partition has dismissed the suit itself on
the ground that the proceeding is vexatious.
Mr. Hirak Kumar Mitra, learned Senior Counsel
representing the appellant/plaintiff has submitted that there was
no application under Order VII Rule 11 of the Code of Civil
Procedure and in deciding an application for rejection of the
plaint, the Court has to take the statements made in the plaint as
true and correct. It was only on a reading of such averments
made in the plaint if it appears that the suit is vexatious, it may
be dismissed.
Mr. Surajit Nath Mitra, learned Senior Counsel appearing
on behalf of the respondent nos. 1 and 2 submits that the
pleadings and documents disclosed in the said proceeding would
prima facie establish beyond any doubt that the second marriage
had never taken place and in any event the appellant could not
have entered into the second marriage when the first marriage is
still subsisting.
We have heard the learned Counsel for the parties and
have gone through the impugned judgment. Insofar as the
rejection of the plaint under Order VII Rule 11 is concerned, we
are of the view, that the plaintiff has made out a strong prima
facie and arguable case on merits and we admit the appeal and
grant stay of operation of the deemed decree.
In view of the admitted fact that the plaintiff is presently
in possession of three flats, the possession of the plaintiff should
not be disturbed till the disposal of the appeal.
In the event the Special Messenger costs is not deposited
within the period of one week form date, this order shall stand
automatically vacated without any further reference to Court.
The appellant is restrained from dealing with and/or
encumbering with and/or parting with the possession of any of
the flats of Rana Safui till the disposal of the appeal.
Let Lower Court Record be called for by Special
Messenger at the costs of the appellant by 10th June, 2022. Such
costs are to be deposited by the appellant within a week from
date.
After arrival of the Lower Court Record, the office shall
examine the same and shall issue notice of arrival of Lower
Court Records to the learned Advocate-on-Record for the
appellant at once.
The appellant is directed to prepare and file requisite
number of informal paper books - printed, typewritten or
cyclostyled, as the case may be, out of court, within four weeks
from the date of service of notice of arrival of Lower Court's
Record on the learned Advocate for the appellant.
All formalities regarding preparation of paper books are
dispensed with, but the learned Advocate for the appellant is
directed to incorporate all the Trial Court papers and the
memorandum of appeal in the informal paper book.
Mr. Rishab Datt, learned Advocate-on-Record of the
respondent nos. 1 and 2, on instruction, waives service against
respondent nos. 1 and 2. In the event the respondent no.3 was
not represented separately before the learned Trial Court, there
shall be no further requirement of service of notice of appeal
upon the respondent no.3.
The parties shall be at liberty to mention this matter for
early hearing of the appeal after filing of the paper book.
The aforesaid directions are peremptory.
CAN 1 of 2022 is accordingly, disposed.
(Sugato Majumdar, J.) (Soumen Sen, J.)
