Sri Subal Chandra Dey vs Sri Rakhal Majumder
2022 Latest Caselaw 618 Tri

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                 HIGH COURT OF TRIPURA
                       AGARTALA
                     RFA No. 3 of 2021

 1. Sri Subal Chandra Dey
 S/O- Late Girish Chandra Dey, resident of Badurtali Lane, Krishna
 Nagar, Agartala, PS: West Agartala, District- West Tripura
 2. Sri Shib Sankar Dey
 S/O- Sri Subal Chandra Dey, resident of Badurtali Lane, Krishna Nagar,
 Agartala, PS: West Agartala, District- West Tripura
                                               .....Plaintiff-Appellant(s).
                  Versus
 1. Sri Rakhal Majumder
 S/O- Late Ananta Kr Majumder, resident of Officers' Quarters Lane,
 PS: West Agartala, District- West Tripura
 2. Sri Nanigopal Paul
 S/O- Late Ranjit Paul, resident of Badurtali Lane, Krishna Nagar,
 back side of Jone player, PS: West Agartala, District- West Tripura
                                            .....Defendant-Respondent(s).

BEFORE HON'BLE MR. JUSTICE ARINDAM LODH

For the Appellant(s) : Mr. D. R. Chowdhury, Sr. Advocate Mr. S. Sarkar, Advocate For the Respondent (s) : Mr. S. Mahajan, Advocate Date of hearing and delivery of judgment & order : 01.07.2022 Whether fit for reporting : NO

JUDGMENT & ORDER (ORAL)

Heard Mr. D. R. Chowdhury, learned senior counsel assisted by Mr.

S. Sarkar, learned counsel appearing for the plaintiff-appellants. Also heard

Mr. S. Mahajan, learned counsel appearing for the defendant-respondents.

2. This is an appeal under Section 96 of the Code of Civil Procedure

against the judgment and order of dismissal dated 12.02.2021 passed in case

no. T.S. (P) 08 of 2019 by the learned Civil Judge, Senior Division, Court

no.4, West Tripura, Agartala.

3. Both the learned counsels appearing for the parties have submitted

that the Partition suit instituted by the appellant has been dismissed only on

the ground that the suit is hit by the doctrine of res judicata.

4. Mr. Chowdhury, learned senior counsel has submitted that true it is

that the appellant had instituted a suit for partition prior to the filing of the

instant suit, but, that suit bearing No. T.S. (P) 167 of 2013 was dismissed for

the default.

5. Mr. Mahajan, learned counsel has submitted that this is the only

ground to dismiss the present suit.

6. I have considered the submissions of learned counsels appearing for

the parties to the lis.

7. It is admitted position that the suit bearing No. T.S. (Partition) 167 of

2013 has not been decided on merit. It was dismissed for the default.

8. In this circumstance, a party to the suit may file a fresh suit, and the

subsequent suit will not be barred by doctrine of res judicata.

9. Having held so, I allow this first appeal and remit the matter back to

the court of learned Civil Judge, Senior Division, Court No. 4, West Tripura,

Agartala to proceed with the case on merit in accordance with law.

10. With the aforesaid observation and direction, the instant first appeal

stands allowed, and thus disposed.

Send down the LCRs immediately.

JUDGE

Snigdha