In the High Court at Calcutta
Commercial Division
Original Side
Judgment (2)
PRESENT :
THE HON'BLE JUSTICE ANIRUDDHA ROY
IA NO. GA-COM/8/2026
[OLD NO CS/115/2021]
In CS-COM/276/2024
AMIT NEWAR AND ANR
Vs
MOHAMMED ISLAM
For the petitioner:
Mr. Kanishk Kejriwal, Adv.
Mr. Ramendu Agarwal, Adv.
For the judgment debtor :
Mr. Arik Banerjee, Adv.
Mr. Arijit Roy, Adv.
Ms. Shreyashi Maity, Adv.
Heard on : March 30, 2026
Judgment on : March 30, 2026
[In Court]
ANIRUDDHA ROY, J :
1. Mr. Kanishk Kejriwal, learned advocate appears for the plaintiffs.
2. Mr. Arik Banerjee, learned advocate appears for the defendant.
3. The notice of motion and the affidavit of service filed in Court today
are taken on record.
4. The Prayers (a) and (b) from the instant application is quoted below:
" a) An order be passed dismissing G.A. No. 4 of 2022 as
infructuous in view of subsequent developments as narrated
above:
b) Such further and/or other order or orders be passed and/
or direction or directions be given as Your Lordships deem fit
and proper."
5. IA GA/4/2022 is an application filed by the defendant/ tenant for
stay of the instant suit in view of the pendency of a prior suit before
the learned City Civil Court. Prayers (a) to (c) from IA GA/4/2022 are
quoted below:
"a) Stay of the suit being C.S. No. 115 of 2021 (Amit Newar
-Vs. - Mohammed Islam) along with pending interlocutory
applications filed therein pending final adjudication of Title
Suit No. 968 of 2019 (Mohammed Islam - Vs. - Om Prakash
Newar & Ors.) is disposed of;
b) Ad-interim order in terms of prayer (a);
c) Such further and/or other orders be passed, direction
and/or directions be given as to this Hon'ble Court may
deem fit and proper."
CS-COM/276/2024
OLD NO CS/115/2021)
IA NO. GA-COM/8/2026
A.R., J.
6. Hearing of the said IA GA/4/2022 has been concluded and the
judgment has been reserved by a Co-ordinate Bench. The relevant
order in this regard is Annexure 'D' at Page-58 to the instant
application.
7. In the meanwhile, the plaintiff in 2025 had filed an application for
transfer of the City Civil Court suit filed by the defendant herein
before this Court for an analogous trial with the instant suit under
Clause 13 of the Letters Patent, 1865. The application was
registered as ALP/13/2025. A co-ordinate Bench by its order dated
November 20, 2025, Annexure-'G' at page-64 of the instant
application, has allowed the said prayer for transfer and accordingly,
the City Civil Court suit was directed to be transferred before this
Court.
8. On a close perusal of the said order dated November 20, 2025, it
appears to this Court that it was never pointed out by the plaintiff
before the Co-ordinate Bench that the Section 10 application was
still pending then and was reserved for judgment, though it is
submitted on behalf of the plaintiff that in paragraphs 17 and 18 of
the transfer application pendency of the Section 10 application was
mentioned and the relevant order was also annexed. It is also
submitted that the defendant had also not pointed it out before the
Co-ordinate Bench while passing the said order of transfer dated
November 20, 2025.
CS-COM/276/2024
OLD NO CS/115/2021)
IA NO. GA-COM/8/2026
A.R., J.
9. Mr. Arik Banerjee, learned advocate appearing for the tenant-
defendant submits that, since Section 10 application is a prior
application which is still pending and has been reserved for judgment;
the instant application is not maintainable.
10. After considering the rival submissions of the parties and on perusal
of the materials on record, it appears to this Court that, since Section
10 application filed by the defendant is still pending and the hearing
has been concluded therein, which is a substantive application, the
prayers in this application cannot be allowed at this stage. Lot will
depend on the final outcome of the Section 10 application. In the
event, since the Section 10 application is prior in point of time is
allowed, the complexion and status of the instant suit would
substantially change.
11. In view of the forgoing discussions and reasons, this Court is of the
firm and considered view that the instant application is not
maintainable at this stage.
12. Accordingly, the instant application IA GA-COM/8/2026 stands
dismissed, without any order as to costs.
13. However, since affidavit has not been called upon, allegations made
in this application are deemed not to have been admitted by the
defendant.
(ANIRUDDHA ROY, J.)
Arsad
CS-COM/276/2024
OLD NO CS/115/2021)
IA NO. GA-COM/8/2026
A.R., J.
