Jayeda Bibi & Ors vs Sirajul Haque Mondal & Ors
2023 Latest Caselaw 6867 Cal

M/L 17+18
09.10.2023
Court. No. 29
Sourav
                              CO 3884 of 2022
                                   With
                              CO 3886 of 2022
                              Jayeda Bibi & Ors.
                                     Vs.
                         Sirajul Haque Mondal & Ors.

                Ms. Adrisnata Chakraborty
                                                       ... for the petitioner in
                                                           CO 3884 of 2022.
                Mr. Sourav Sen
                                                       ... for the petitioner in
                                                           CO 3886 of 2022.

                Mr. Mainak Bose
                Mr. Amitabh Ray
                Mr. Rishabh Karnan
                                                   ... for the opposite parties.

                1.

Since by an order dated 04.01.2023 as passed in CO 3886

of 2022 both the instant two revisional applications have

been directed to be listed together and since in both the

revisional applications almost self-same orders have been

impugned, this Court proposes to dispose of the instant

two revisional applications by a common order.

2. In CO 3884 of 2022, the order no. 129 dated 14.09.2022

as passed by the learned Civil Judge (Senior Division) 1st

Court at Barasat, North 24 Parganas in Title Suit No. 4 of

2004 has been impugned. Similarly, in CO 3886 of 2022,

the order no. 68 dated 14.09.2022 by the self-same trial

Court in Title Suit No. 502 of 2013 has been impugned.

3. By the aforesaid two orders, the learned Trial Court in

aforesaid two suits has been pleased to reject the petitions

under Sections 151 of the Code of Civil Procedure praying

for analogous hearing of Title Suit No. 4 of 2004 and Title

Suit No. 502 of 2013 as filed by the plaintiffs of the

aforesaid two suits. Both the plaintiffs of the

aforementioned suits felt aggrieved and thus, preferred

the instant revisional applications.

4. In course of hearing, Ms. Adrisnata Chakraborty, learned

advocate for the plaintiffs/revisionists in CO 3884 of

2022 and Mr. Sourav Sen, learned advocate for the

plaintiffs/petitioners in CO 3886 of 2022 conjointly

draws the attention of this Court to the two certified copy

of the impugned orders as passed by the learned Trial

Court in the aforesaid two suits.

5. Attention of this Court is also drawn to plaint of Title Suit

No. 4 of 2004 and plaint of Title Suit No. 502 of 2013 as

filed before the learned Trial Court. It is argued by Ms.

Chakraborty and Mr. Sen, learned advocates for the

petitioners of the instant two revisional applications that

from the cause title of the aforesaid two suits, it would

reveal that in both the suits; the parties are identical as

well as the schedule of properties of the aforesaid two

plaints are equally identical.

6. It is further argued by them that in both the suits though

the plaintiffs are different but they have filed the said two

suits for partition of the identical suit properties. It is

thus, argued by Ms. Chakraborty and Mr. Sen, learned

advocates for the revisionists of the instant two revisional

applications that learned Trial Court while passing the

impugned orders has measurably failed to consider those

facts and wrongly rejected the petition for analogous

hearing solely on the ground that cause of action for the

said two suits are not identical. Ms. Chakraborty and Mr.

Sen, learned advocates for the petitioners of the instant

two revisional applications thus submit that it is a fit case

for allowing the instant two revisional applications by

directing the learned Trial Court to hear out Title Suit No.

4 of 2004 and Title Suit No. 502 of 2013 analogously in

order to avoid chance of passing of conflicting judgments.

7. While opposing the prayer of the petitioners of the instant

two revisional applications, Mr. Mainak Bose, learned

advocate for the opposite parties of the instant two

revisional applications also draws attention of this Court

to the schedule of the plaints of Title Suit No. 4 of 2004

vis-à-vis Title Suit No. 502 of 2013. It is contended by Mr.

Bose that though in both the suits, plot numbers of the

schedule mentioned properties are identical but the

extent of land covering the said plot numbers are

different.

8. It is thus argued by Mr. Bose, learned Counsel for the

opposite parties that in view of such difference of extent

of suit properties in the schedule of plaints of the both the

suits, it cannot be said that schedule of the

aforementioned two suits are same and identical.

9. Mr. Bose, in course of his argument also draws his

attention to the written statement with counterclaim as

filed by his client Sirajul Haque Mondal in Title Suit No. 4

of 2004 before the learned Trial Court. It is submitted by

Mr. Bose that by filing counterclaim, the said Sirajul

Haque Mondal who is one of the defendants in both the

suits have sought for declaration and injunction against

the parties of the said two suits in respect of some

portions of the plot numbers which are part and parcel of

the schedule of the plaint of aforesaid two suits. Mr. Bose

thus submits that learned Trial Court while disposing the

said two applications under Section 151 of the Code of

Civil Procedure as filed in Title Suit no. 4 of 2004 and

Title Suit No. 502 of 2013 rightly came to a finding that

no case has been made out for analogous hearing of the

aforesaid two suits.

10. It is further submitted by Mr. Bose, learned advocate for

the opposite parties in both the two instant revisional

applications that the aforesaid two applications for

analogous hearing in both the aforementioned suits have

been filed only to frustrate the counterclaim as made by

his client(s) in Title Suit No. 4 of 2004.

11. This Court has meticulously gone through the contents of

the instant two revisional applications. Admittedly,

almost by two identical orders, both the applications

under Section 151 of the Code of Civil Procedure for

analogous hearing of the aforementioned two suits have

been rejected by the learned Trial Court. This Court has

also gone through the plaints of the aforementioned two

suits including its cause title, prayer portions and the

schedules of the plaint of two suits. This Court has also

gone through the written statements filed by defendant

no. 1, Sirajul Haque Mondal along with his counterclaim

as well as the prayer portion of the said counterclaim and

the schedule of the counterclaim.

12. Admittedly, as rightly pointed out in the impugned order

that parties to the both suits are same and identical. It

also reveals to this Court that in both the suits for

partition the suit plot numbers are identical though their

extent varied. It reveals further to this Court that

defendant no. 1, Sirajul Haque Mondal in Title Suit No. 4

of 2004 has prayed for declaration and injunction in

respect of the suit properties which are situated in the

self-same plot numbers which are subject matter of both

the aforementioned suits.

13. In view of such, this Court finds that in the event this

Court directs the learned Trial Court to dispose of the

Title Suit No. 4 of 2004, the counterclaim as filed by

Sirajul Haque Mondal in Title Suit No. 4 of 2004 and

Title Suit No. 502 of 2013 analogously that would prevent

multiplicity of suit as well as that would help in avoiding

chance of passing of conflicting judgments touching the

right, title and interest of the parties of the aforesaid two

suits.

14. In considered view of this Court, difference of cause of

action cannot stand in the way in disposing the aforesaid

two suits and the counterclaim analogously as wrongly

held by the learned Trial Court.

15. in view of the discussion made hereinabove, this Court

thus finds sufficient merits in both the aforementioned

revisional applications and, accordingly, the instant two

revisional applications being CO 3884 of 2022 and CO

3886 of 2022 are allowed on contest.

16. Consequently, the order no. 129 dated 14.09.2022 as

passed in Title Suit No. 4 of 2004 and order no. 68 dated

14.09.2022 as passed in Title Suit No. 502 of 2013 by the

learned are hereby set aside.

17. Consequently, both the petitions as filed under Section

151 of the Code of Civil Procedure, as filed in the aforesaid

two suits stand hereby allowed on contest.

18. The learned Civil Judge (Senior Division) 1st Court at

Barasat, North 24 Parganas is directed to dispose of Title

Suit No. 4 of 2004 and Title Suit No. 502 of 2013

analogously, of course, after completion of the formalities

of service of summons upon the defendants and giving

them reasonable time for filing their written statements

and, thereafter, by framing common issues in both the

suits.

19. With the aforementioned observation, the instant two

revisional applications being CO 3884 of 2022 and CO

3886 of 2022 are disposed of but considering the facts

and circumstances of the present two cases without any

order as to costs.

20. Parties are directed to act upon the server copy of this

order duly downloaded from the official website of this

Court.

21. Urgent photostat certified copy of this order, if applied for

be given to the parties, upon compliance of necessary

formalities.

(Partha Sarathi Sen, J.)