Satyabrata Seal And Another vs Madan Mohan Seal And Another
2023 Latest Caselaw 4647 Cal

August 2, 2023 Sl. No.5 Court No.19 s.biswas CO 1529 of 2022 With CAN 3 of 2023

Satyabrata Seal and another vs.

Madan Mohan Seal and another

Ms. Shohini Chakrabarty Mr. Goutam Acharya Mr. Gourab Ghosh ... for the petitioners Mr. Syed Mansur Ali Mr. Subhra Sundar Mukhopadhyay Mr. Subhrangshu Nath Sarkar ... for the opposite parties

Affidavit of service filed by the petitioners is

taken on record.

This revisional application has been filed

challenging an order dated March 30, 2022 passed

by the learned Additional District Judge, 1st Court,

Sealdah, South 24 Parganas in Miscellaneous Appeal

No.40 of 2021. By the said order, the learned lower

appellate court upheld the order dated April 7, 2021

passed by the learned Civil Judge (Junior Division),

1st Court, Sealdah, in Miscellaneous Case No.34 of

2019.

The Miscellaneous Case No.34 of 2019 was an

application under Order 9 Rule 13 of the Code of

Civil Procedure arising out of Title Suit No.123 of

2016.

Both the learned courts below found that the

summons had been duly served upon the defendants

in the suit. Hence, the suit was rightly fixed for ex

parte hearing when the defendants did not contest

before the learned trial judge.

Learned advocate for the opposite

parties/plaintiffs relies on the cross-examination of

both the defendants. It was specifically stated in the

cross-examination by the defendants that one Smt.

Rakhi Seal, wife of Satyabrata Seal had accepted the

summons on behalf of both the defendants. The

signature of Rakhi Seal was available on the AD

card, which was shown to the witnesses. The

witnesses identified such signature.

Under such circumstances, the courts were not

wrong in holding that despite receipt of summons,

the defendants failed and neglected to take steps in

the suit and the suit was rightly decreed ex parte.

The revisional application has been filed before

this court on the ground that the procedure

prescribed under the Code of Civil Procedure was not

followed, inasmuch as, Rakhi Seal could not have

been treated as agent of the defendant No.2 insofar

as, service of summons was concerned.

According to the petitioners, the summons

ought to have been served upon the parties

contesting the suit or upon their authorized agent.

It is further submitted that only two dates had been

fixed by the learned trial judge and thereafter the

learned trial judge decreed the suit without giving

adequate opportunity to the defendants to contest

the same.

The wife of the elder brother could not have

accepted the summons on behalf of the younger

brother, i.e., the petitioner no.2.

However, for the ends of justice, the power of

this court under Article 227 of the Constitution of

India is invoked in order to allow one last chance to

the defendants to contest the suit, by filing the

written statement.

It appears from the entire order-sheet which has

been produced before this court that Title Suit

No.123 of 2016 proceeded in hot haste. Prior to

August 17, 2018, six dates were fixed for SR. On

August 17, 2018, AD cards in respect of service upon

the defendant nos.1 and 2 returned and the service

was found to be complete. The matter was fixed on

September 18, 2018 for appearance and for further

orders. On the next day, i.e., on September 19, 2018

the defendants did not appear and the suit was fixed

for ex parte hearing on November 15, 2018. On

November 15, 2018, the plaintiff filed examination in

chief, with documents. Sanjib Dutta PW 1 was

present and his evidence was recorded in full. He

was discharged. The documents were also marked

as Exhibits 1 to 4. On the verbal prayer of the

plaintiff, the evidence of the plaintiff was closed and

January 7, 2019 was fixed for ex parte argument.

On December 11, 2018, the plaintiff withdrew one of

the exhibits. On January 7, 2019 the suit was heard

and decreed ex parte against Satyabrata Seal.

Satyabrata Seal was directed to deliver the vacant

possession to the plaintiff within 30 days from the

said judgment. The order of learned trial judge

suffers from certain irregularities. Upon recording

completion of service, on the very next day, the suit

was fixed for ex parte hearing. On the following day,

the evidence was closed and on the fourth day, the

suit was decreed. Although there were two

defendants admittedly parties to the suit, the suit

was decreed against only one. The defendant no.2

Debabrata Seal, did not suffer decree.

Under such circumstances, this court is of the

view that a chance should be given to the defendants

to contest the suit. However, for the delay caused,

the cost of Rs.50,000/- shall be paid to the plaintiff

within three weeks from date.

The defendants shall file their written statement

within four weeks from date. The learned Civil

Judge (Junior Division), 1st Court, Sealdah shall

accept the written statement of the defendants, upon

being satisfied that the cost of Rs.50,000/- has been

paid to the plaintiffs within the time frame fixed by

this court. Thereafter, the suit shall proceed in

accordance with law and shall be disposed of within

a year from completion of pleadings.

The orders impugned are set aside. The suit

shall be heard afresh.

The revisional application is thus disposed of.

Original copy of CAN 3 of 2023 is not available

with the records, for the change of determination.

However, photocopy of the same is treated to be

original on the consent of the parties.

CAN 3 of 2023 is an application for vacating the

interim order passed by this court on an earlier

occasion. As the revisional application is disposed of,

CAN 3 of 2023 has become infructuous.

All the parties are directed to act on the basis of

the server copy of the order.

Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance with the requisite formalities.

(Shampa Sarkar, J.)