Sri Kamal Saha & Ors vs Suchitra Saha & Ors
2022 Latest Caselaw 7514 Cal

14.11.2022
Item No.13
Court No.32
Avijit Mitra
                              FAT 141 of 2022
                                    with
                            IA No. CAN 1 of 2022
                                    with
                            IA No. CAN 2 of 2022
                                    with
                            IA No. CAN 3 of 2022



                             Sri Kamal Saha & ors.
                                   - Versus -
                             Suchitra Saha & ors.

                             Mr. Tapas Kumar Dey,
                             Mr. Rakesh Roy
                                               ...for the applicants
                             Mr. Gautam Brahma,
                             Ms. Puspa Saha,
                             Mr. Arijit Dey
                                   ....for the respondent nos.1, 2 and 3

Affidavit of service filed by the applicants be kept

on record.

The application being IA No.CAN 3 of 2022 has

been filed seeking leave to prefer appeal against the

judgment and preliminary decree dated 25 th July,

2016 and the final decree dated 17 th June, 2017

passed in Title Suit no.183 of 2012 by the learned Civil

Judge (Senior Division), 2nd Court, Barasat. In

connection with the said application, an application

for condonation of delay being IA No. CAN 1 of 2022

and an application for stay being IA No. CAN 2 of 2022

have also been filed.

Mr. Dey, learned advocate appearing for the

appellants/applicants submits that the applicants are

the legal heirs of late Kalipada Saha and they are co-

owners of the suit property on the strength of a will

executed by their grandmother, namely, late Abala

Rani Saha. The respondent nos.1, 2 and 3 preferred a

partition suit in the year 2012 and the same was

registered as T.S. No.183 of 2012. Kalipada Saha

expired prior to filing of the partition suit and the suit

was preferred impleading the applicants herein. The

applicants duly contested the suit and filed written

statement, as would be explicit from the orders passed

by the learned Court below, as annexed to a

supplementary affidavit filed in connection with the

condonation application. On 23 rd July, 2015, a show

cause was issued due to the absence of the defendant

no.1. In spite of appropriate instruction, no show

cause was filed by the applicants' learned advocate

and the learned Court below proceeded ex parte and

the preliminary decree was passed on 25th July, 2016.

For such laches on the part of the applicants' learned

advocate, the applicants cannot suffer.

Mr. Dey alleges that though the uncle of the

applicants, namely, Haripada Saha expired on 21 st

March, 2019, no steps were taken by the plaintiffs for

substitution but such error on records was not noted

by the learned Court below. The applicants had no

knowledge that the preliminary decree had been

passed ex parte. Taking advantage of the ex parte

preliminary decree, the plaintiffs sought to forcibly

take over possession of the shop-room in the suit

premises from the applicants. Such fact was

immediately informed to the local police station. As no

steps were taken, the applicants approached their

learned advocate on 16th May, 2022 to take

appropriate steps but she expressed her inability.

Thereafter upon obtaining the certified copies, the

instant appeal was filed on 15 th June, 2022. The delay

which has occurred towards filing the present appeal

is unintentional and not attributable to the applicants.

The said period of delay also stands intervened by a

period lost due to the pandemic. In view thereof, such

delay may be condoned and the applicants may be

granted leave to prefer the present appeal.

Per contra, Mr. Brahma, learned advocate

appearing for the respondent nos. 1 to 3/plaintiffs

submits that the applicants had full knowledge about

pendency of the suit, however, they chose not to

contest the same. Mere engagement of a lawyer is not

sufficient. The applicants ought to have been vigilant.

The Court cannot be kept waiting for an indefinite

period for the absence of the defendants and it may

proceed to dispose of the suit, in accordance with law.

In support of such contention reliance has been placed

upon the provisions of Order XVII Rule 2 of the Code.

Valuable right has already accrued in favour of the

plaintiffs and as such the applicants now cannot seek

condonation of the enormous delay and claim

sympathetic consideration.

Heard the learned advocates appearing for the

respective parties and considered the materials on

record.

Records reveal that the preliminary decree in the

partition suit was passed ex parte on 25th July, 2016.

The applicants chose not to contest the suit. The

applicants admittedly did not challenge the

preliminary decree. From the final Commissioner's

report, as produced by the plaintiffs, it appears that

the defendants themselves identified the suit property

as described in the preliminary decree before the

learned Commissioner. Upon completion of such

commission work, report was filed by the learned

Commissioner and the final decree was drawn up on

17th June, 2017. Having failed to prefer any appeal

against the preliminary decree, the applicants are

precluded from disputing its correctness in any appeal

which may be preferred from the final decree.

The sequence of facts clearly reveals that the

delay, which had occasioned, is attributable to the

applicants and was intentional. The applicants having

adopted dilatory tactics cannot seek sympathetic

consideration moreso when it appears that valuable

right has already accrued in favour of the plaintiffs.

The explanation given by the applicants towards the

delay which has occasioned is not sufficient. It does

not appear that the applicants kept regular contact

with their learned advocate and were vigilant. The

preliminary decree was passed on 25 th July, 2016 and

the final decree was drawn up in the year 2017. For

the first time, in the year 2022, the applicants are

raising the plea that the advocate engaged by them in

the suit did not take appropriate steps. We do not find

any explanation as regards the delay which occurred

even after the year 2017 in preferring the present

application for leave to appeal. The applicants also

chose not to prefer any appeal against the preliminary

decree. The final decree had been drawn up in the year

2017 and thus the proceedings which had attained

finality about five years earlier, cannot be reopened.

For the reasons discussed above, we are unable

to grant the relief as prayed for by the applicants.

The application for condonation of delay being IA

No.CAN 1 of 2022 and the application for leave to

appeal being IA No.CAN 3 of 2022 are dismissed.

Consequently, the appeal being F.A.T. 141 of 2022 and

the application for stay being IA No. CAN 2 of 2022 are

also dismissed.

There shall be no order as to costs.

Urgent certified photocopy of this order, if

applied for, be supplied as expeditiously as possible.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)