Sri Atish Kumar Mukherjee vs Sri Nitish Kumar Mukherjee & ...
2022 Latest Caselaw 7768 Cal

23.11.2022
 Court No.32
  rpan/09
                                FAT 85 of 2022
                                        +
                              IA No.: CAN 1 of 2022
                                        +
                              IA No.: CAN 2 of 2022
                                        +
                              IA No.: CAN 3 of 2022

                           Sri Atish Kumar Mukherjee
                                     - Versus -
                       Sri Nitish Kumar Mukherjee & Others

                     Mr. Jayanta Das,
                     Ms. Soumita Ghosh
                                ... for the Appellant.
                     Mr. Rwitendra Banerjee,
                     Mr. Devdutta Pathak
                                ... for the Respondent no.1.

In Re.: IA No.: CAN 1 of 2022 [Sec. 5]

It is an application taken out under Section 5 read

with Section 14 of the Limitation Act praying for

condonation of delay in preferring the instant appeal.

Let the affidavits exchanged be kept on record.

Mr. Ghosh, learned advocate, representing the

applicant/appellant submitted that the judgment and

decree impugned herein was passed on 16th July, 2018.

Thereafter an application to obtain the certified copy of

the judgment and decree was filed on 18 th July, 2018

which was obtained on 13th September, 2018. Thereafter

the appeal, being Title Appeal no.111 of 2018 was filed

before the learned District Judge, Paschim Medinipur on

27th September, 2018. Here the appeal was valued at

Rs.1,50,045/- and hence as per Section 21 of the Bengal,

Agra and Assam Civil Act, 1887 the said appeal was

required to be filed before this Hon'ble Court. In the

meantime, the learned advocate appearing for the

appellant filed an amendment application under Order VI

Rule 17 of the Code of Civil Procedure (in short, the Code)

before the learned court below claiming that the said

appeal should have been valued as per the value of the

counter-claim filed by the appellant before the learned

Trial Court and the plaintiff/respondent no.1 herein also

filed another application challenging the maintainability

of the appeal before the court of the learned District

Judge, Paschim Medinipur. Both the two applications

were disposed of by passing an order dated 10 th February,

2022 dismissing the application for amendment and

holding that the said appeal was not maintainable before

it and accordingly, by passing the said order dated 10 th

February, 2022 the said appeal was returned in exercise

of the power conferred under Order VII Rule 10 read with

Section 107(2) of the Code. Hence the appellant has

preferred this appeal before this Hon'ble Court on 7 th

April, 2022.

The appellant by taking out this application has

prayed for condonation of delay with a prayer for

exclusion of time spent before the learned court below

while pursuing the appeal, being Title Appeal no.111 of

2018.

He submitted that due to mistake the appeal was

filed before the learned court below and the appellant

pursued the appeal with due diligence and he is entitled

to get the benefit under Section 14 of the Limitation Act

and such delay should be condoned and the appeal be

admitted.

Mr. Banerjee, the learned advocate representing the

respondent no.1/plaintiff strenuously opposed the prayer

for condonation of delay stating that in the plaint itself

the value of the suit was mentioned as Rs.1,50,045/-. So

from the very inception of the suit it was within the

knowledge of the appellant/applicant that the suit was

valued at that amount. He added that here, although the

appeal was not required to be filed before the learned

court below but the same was filed with a mala fide

intention only to protract the litigation and hence, such

application being frivolous should be dismissed.

Heard the learned advocates and perused all the

documents placed before us. On such hearing and

perusal it transpires that the appeal was filed before the

learned court below under a misconception that the

appeal preferred by the appellant before the learned court

below would be valued as per the value of the counter-

claim and Section 14(1) of the Limitation Act speaks that

in computing the period of limitation for any suit the time

during which the plaintiff has been prosecuting with due

diligence another civil proceeding, whether in a court of

first instance or of appeal or revision, against the

defendant shall be excluded, where the proceeding relates

to the same matter in issue and is prosecuted in good

faith in a court which, from defect of jurisdiction or other

cause of a like nature, is unable to entertain it.

So from the conduct of the appellant/applicant it

appears that the appellant/applicant has pursued the

appeal before the learned court below with due diligence

under a misconception of fact and no mala fide intention

can be attributed to the appellant/applicant. We are of

the opinion that this cause shown in this application is

sufficient which prevented the appellant/applicant in

filing the appeal in proper time and hence, the application

for condonation of delay, being IA No.: CAN 1 of 2022 is

allowed.

In Re.: IA No.: CAN 1 of 2022 [Stay]

This is an application for stay of operation of the

judgment and decree impugned herein. It is submitted

that the Partition Commissioner is to be going to be

appointed very soon.

If the Partition Commissioner is appointed on the

basis of an application filed by the plaintiff/respondent

no.1 or any party to the proceedings then the said

Partition Commissioner may be appointed and he/she

may proceed with the partition work. But no final decree

shall be passed till the disposal of the appeal. Needless to

note that this order is passed to avoid multiplicity of

proceedings.

The application for stay, being IA No.: CAN 2 of

2022 is, accordingly, disposed of.

In Re.: IA No.: CAN 3 of 2022

The learned advocate appearing for the appellant

submits that the present application has been preferred

by the appellant for expunging the name of respondent

no.5, who died during pendency of this proceedings on

10th March, 2021 leaving behind her the legal heirs who

are already on record.

Taking note of such fact, the application, being IA

No.: CAN 3 of 2022 is disposed of.

Office is directed to expunge the name of the

deceased respondent no.5, namely, Miss Uma Mukherjee

from the cause title of the memorandum of appeal.

Let the hearing of the appeal be expedited.

As Mr. Banerjee, learned advocate, has entered

appearance on behalf of the respondent no.1, service of

notice of appeal upon the said respondent no.1 is

dispensed with.

The appellant is directed to put in the requisites

within two weeks for service of notice of appeal upon the

respondent nos.2-6.

Mr. Banerjee prays for leave to prepare and file the

requisite number of paper books.

Such prayer is considered and allowed.

Lower court records be called for through Special

Messenger at the cost of the respondent no.1. Such cost

shall be deposited by the respondent no.1 within 2 weeks.

Immediately, after arrival of lower court records, the

office shall examine the same and, if found complete,

shall issue notice of arrival of lower court records to the

learned advocates appearing for the appellant and the

respondents.

Respondent no.1 is directed to prepare 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 records and shall file the same after serving copies

thereof upon the learned advocates appearing for the

appellant and respondent nos.2-6.

All formalities regarding preparation of paper books

are dispensed with but the learned advocate for the

respondent no.1 is directed to incorporate all the relevant

documents in the informal paper books.

Liberty to mention after filing of the paper books.

Urgent photostat certified copy of this order, if

applied for, be supplied to the parties, upon compliance of

all requisite formalities.

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