Calcutta High Court (Appellete Side)
Shakti Prasad Mondal & Ors vs Pushpa Rani Das & Ors on 11 August, 2023
Item No. 13
11.08.2023
GB
C.O. 3977 of 2022
Shakti Prasad Mondal & Ors.
Vs.
Pushpa Rani Das & Ors.
Mr. Souri Ghoshal
... for the Petitioners.
Mr. Pradip Kumar Mondal,
Mr. Arka Mondal
... for the Opposite Party No.1.
The revisional application arises out of two orders,
namely, order dated October 29, 2022 and order dated
November 4, 2022. Such orders were passed by the learned
Civil Judge (Junior Division), 2nd Court at Diamond Harbour
in Title Suit No.277 of 2022.
By order dated October 29, 2022, the suit was
dismissed as not maintainable. The maintainability was
decided as a preliminary issue. By an elaborate and speaking
order, the suit was dismissed as not maintainable. The
petitioners applied for recalling of the order. By order dated
November 4, 2022, the learned court below refused to recall
the order.
The ground for recalling agitated by the petitioners
was that the date on which the suit was heard on the point of
maintainability, was not a regular working day as there was a
resolution of the bar.
The learned court found that on the relevant date,
both the parties appeared before the court and addressed the
court on their respective cases. The suit was dismissed on
contested hearing. The presiding officer came to the
conclusion that after the suit was dismissed by the
predecessor, the said court had become functus officio and as
there was no error apparent on the face of the order which
was required to be rectified, recalling of the order dated
October 29, 2022, would not be permitted.
Aggrieved, the petitioners/plaintiffs have come before
this Court.
It appears that the suit was heard on several dates and
October 29, 2022 was fixed for hearing on the point of
maintainability. The defendants had filed an application
before the learned court for a decision on the maintainability
of the suit, as a preliminary issue. Such preliminary issue was
framed and the suit was dismissed as found not to be
maintainable. The parties appeared before the court and
made their submissions. As such, the ground for recall of the
order that the same was passed on a day when the local bar
had a resolution, does not bear any significance when the
parties had the opportunity to contest the matter. Thus, the
order dated November 4, 2022 refusing to recall the order
dated October 29, 2022, does not call for any interference.
With regard to the challenge to the order dated
October 29, 2022, this Court is of the view that the question
merits which have been argued by Mr. Ghoshal, learned
advocate for the petitioners with regard to the error in the
order has to be decided in an appeal as the suit was
dismissed. The point raised by Mr. Ghoshal that the learned
court ought not to have dismissed the suit, but ought to have
returned the plaint for presentation before the appropriate
court on finding that the suit was undervalued, is also a
argument on merits. The suit was dismissed on other
grounds, including under valuation. This Court is of the view
that the appropriate remedy would be to prefer an appeal.
Accordingly, the petitioners may take appropriate
steps as permitted by law. Liberty is also granted to take back
the certified copy of the judgment by furnishing a photocopy
thereof.
Accordingly, the revisional application is disposed of.
Urgent photostat certified copy of this order, if applied
for, be given to the parties on priority basis.
(Shampa Sarkar, J.)
