Judgment : TAPEN SEN, J. (1) AT the very outset, this Court notices that in the cause title of this application, the defendant No. 3 has been described as respondent No. 1 and the defendant Nos. 1 and 2/pro forma respondents have again been described as respondent Nos. 1 and 2. Therefore, in order to avoid confusion these two defendant Nos. 1 and 2 who have been shown as pro forma respondents will be referred to as the pro forma respondent Nos. 1 and 2 hereinafter. (2) THIS revision is directed against the Order dated 24. 1. 2006 passed in title Appeal No. 58 of 2005 whereby and whereunder the learned Judge, Vth bench, City Civil Court, Kolkata allowed the respondent No. 1 herein to serve notice upon the pro forma respondent Nos. 1 and 2 on the address given by him and proceeded to fix 23. 2. 2006 awaiting service report. The revision application is also directed against the Order dated 4. 1. 2006 passed by the same learned Judge whereby and whereunder he recorded that the bailiff had reported that the pro forma respondent Nos. 1 and 2 had left the suit premises and as such, he was unable to serve summons upon them. Although he held that the summons had thus been duly served, yet, on account of the report of the bailiff and for the ends of justice, the learned Court below allowed the prayer for time. (3) THE facts of the case which could be gathered from the pleadings as well as the documents appended/produced are that these petitioners are the transferee landlords and joint owners of premises situated at 53, Ripon Street (now Mujaffar Ahmed Street, P. S. Park Street in the city of Kolkata. It is stated that they are pursuing the litigation in the capacity of substituted plaintiffs in an Ejectment Suit No. 688 of 1994 which was subsequently transferred to the small Causes Court at Kolkata and renumbered as Ejectment Suit No. 2712 of 2000. (4) IT is further evident that the vendors of these petitioners filed the aforementioned suit against the respondents herein and made a prayer, inter alia, for khas possession by evicting them and for a decree of mesne profits and/or damages till recovery of possession. The three respondents who are the three defendants in the aforementioned suit, filed a joint written statement on 28. 9. 2001. The three respondents who are the three defendants in the aforementioned suit, filed a joint written statement on 28. 9. 2001. (5) IN the said joint written statement, all of them gave their registered addresses as 53, Ripon Street, Kolkata-700016. (6) AFTER these petitioners purchased the property, they were substituted as plaintiffs in place of the erstwhile landlords/owners and thereafter, they have been pursuing the said litigation. (7) ON 20. 2. 2003, the respondent No. 1 filed an additional written statement submitting that he was a sub-tenant. It has been stated in paragraph 4 of the revision petition that the pro forma respondent Nos. 1 and 2 had entered into a compromise with these petitioners. Yet another additional written statement was filed by the said respondent No. 1 on 18. 9. 2003 and again, on 23. 12. 2003 he filed a further written statement. (8) IT appears that the suit was decreed on 7. 5. 2005 by the learned Judge, 3rd bench, Presidency Small Causes Court at Kolkata. It is relevant to note the concluding portions of the aforementioned judgment because they would show that the suit was decreed on contest as against the respondent No. 1 and on consent as against the pro forma respondent Nos. 1 and 2. The judgment would also show that these petitioners got a decree of khas possession of the suit premises after evicting the defendant therefrom. It is also evident that the respondent No. 1 was specifically directed to deliver vacant possession of the suit premises in favour of these petitioners within three months from the date of the judgment failing which, these petitioners were given the liberty to get the decree executed in accordance with law. Let it be recorded that a copy of the judgment is Annexure p1 appended to this application and the relevant portions from which this Court has made the aforementioned observations are to be found at running page 28 of the revision application and they read as follows : "as the Issue Nos. 4 and 5 are disposed of in favour of the plaintiff the Issue nos. 7 and 8 are also disposed of in favour of the plaintiff. All the issues are thus disposed of. At the time of argument, the ld. lawyers of both parties submitted that the defendant Nos. 4 and 5 are disposed of in favour of the plaintiff the Issue nos. 7 and 8 are also disposed of in favour of the plaintiff. All the issues are thus disposed of. At the time of argument, the ld. lawyers of both parties submitted that the defendant Nos. 1 and 2 have consented the claim of the plaintiff and they are not appearing since the date of giving their consent. Consequently, the suit succeeds. C. F. paid is correct. Hence, it is ordered : that the suit be and the same is decreed on contest with cost against the defendant No. 3 and on consent against the defendant Nos. 1 and 2. The plaintiff do get a decree of khas possession of the suit premises after evicting the defendants therefrom. The defendants specifically the defendant No. 3 is directed to deliver vacant possession of the suit premises in favour of the plaintiff within three months from this date i. d. the plaintiff shall be at liberty to put the decree into execution. [sic] (9) IT appears that the respondent No. 1, on the other hand, also obtained an ex parte order of injunction in a separate suit registered as Title Suit No. 276 of 2005 as against these petitioners before the learned Judge, Vth Bench, City civil Court at Calcutta. This ex parte order of injunction, however, came to be vacated by an order dated 8. 6. 2005. (10) THE order dated 8. 6. 2005 is contained in Annexure P2 and upon a perusal thereof, it is evident that the suit premises originally belonged to one Anil Kr. Dutta under whom one Md. Sakeb (father of the pro forma respondent Nos. 1 and 2 namely Md. Salim and Md. Sajid Hussain) was a tenant. It is further evident; that Md. Sakeb, who was the actual tenant, allowed the respondent no. 1 to live with him but rent receipts were issued only in the name of Md. Sakeb. It is further evident that these petitioners were made defendant Nos. 6 and 7 in that suit as they claimed ownership on the basis of a valid purchase. The learned Court, namely the City Civil Judge, Vth Court, Kolkata, while vacating the order of injunction on 8. 6. 2005 in the aforementioned Title Suit no. 276 of 2005. Sakeb. It is further evident that these petitioners were made defendant Nos. 6 and 7 in that suit as they claimed ownership on the basis of a valid purchase. The learned Court, namely the City Civil Judge, Vth Court, Kolkata, while vacating the order of injunction on 8. 6. 2005 in the aforementioned Title Suit no. 276 of 2005. returned the following findings which read as follows : "from the written objection filed by the defendant Nos. 6 and 7, it is available that the plaintiff is defendant No. 3 in the Ej. Suit No. 2712/2000 pending before the S. C. Court. Kolkata and in that suit he claimed himself to be a sub-tenant of the suit premises and also filed joint application under sections 17 (1), 17 (2a) and (b) of the W. B. P. T: Act. But, in the present case, the plaintiff has not whispered about that. Nor he has stated anything about the fate of the Ej. Suit, though I find that it is within his knowledge. As the contesting defendant, he can claim tenancy right or sub-tenancy right in that suit. But suppressing that suit, he has filed the present suit claiming tenancy right over the suit premises, thought from the documents filed by him, it is established that since 1974 to 1986 one Sakeb was the recorded tenant of the suit premises under the previous landlord. Even the heirs of Md. Sakab have not supported the claim of the plaintiff in the instant suit. The plaintiff may be a sub-tenant under Md. Sakeb. But he cannot claim tenancy right over the suit premises in the present suit. I have already discussed that he has not filed any substantial document to establish before this Court that he all along paid rent of the suit premises to the previous land. On the other hand, his document speak that Md. Sakeb paid the rent upto 1986. Besides those, suppressing the fact and result of the Ej. Suit No. 2712/2000 pending before the S. C. Court, Kolkata he has filed the present suit. He should agitate all his claims including tenancy right in the Ej. Suit No. 2712/2000 pending in the S. C. Court and not in the present suit. As he is a party, so he is bound by the result of that suit also. Suit No. 2712/2000 pending before the S. C. Court, Kolkata he has filed the present suit. He should agitate all his claims including tenancy right in the Ej. Suit No. 2712/2000 pending in the S. C. Court and not in the present suit. As he is a party, so he is bound by the result of that suit also. Therefore, after careful consideration of all the facts and circumstances of this case and after hearing the arguments advanced by the ld. Advocates on both sides, I am inclined to hold that the plaintiff has filed to make out a prima facie case in his favour. I so also hold that he has no cause of action to file this injunction petition and so, he is not entitled to get any relief as prayed for in the injunction petition. In the result, the injunction petition fails. " [sic] [emphasis by this Court] (11) IT is thus evident that while vacating the order of injunction, the City civil Judge found : a) that the respondent No. 1 had suppressed the fact relating to ejectment Suit No. 688 of 1994 (subsequently renumbered as ejectment Suit No. 2712 of 2000) in which he was the defendant no. 3 and had taken the plea that he was a sub-tenant; b) that after suppressing the aforementioned facts he filed Title Suit no. 276 of 2005; and c) that even the heirs of Md. Sakeb (i. e. the pro forma respondent nos. 1 and 2 namely Md. Salim and Md. Sajid Hussain herein) had not even supported the case of the respondent No. 1 in that suit namely Title Suit No. 276 of 2005. (12) IT appears that being aggrieved by the judgment passed on 7. 5. 2005 in ejectment Suit No. 688 of 1994 (subsequently renumbered as Ejectment Suit no. 2712 of 2000), the respondent No. 1 filed the instant Title Appeal No. 58 of 2005 before the Chief Judge, City Civil Court at Kolkata in which the impugned order has been passed. The Court fixed the matter for hearing on 14. 7. 2005 on the point of admission whereafter, on the said date on 14. 7. 2005, the respondent no. 1 prayed for an adjournment and the matter was fixed on 8. 9. 2005. The Court fixed the matter for hearing on 14. 7. 2005 on the point of admission whereafter, on the said date on 14. 7. 2005, the respondent no. 1 prayed for an adjournment and the matter was fixed on 8. 9. 2005. In the meantime, these petitioners filed Execution Case No. 139 of 2005 before the executing Court which issued writ of possession fixing on 23. 8. 2005 for delivery of possession. It is stated that the bailiff was unable to execute the writ of possession due to strong resistance by the respondent No. 1. (13) UPON narration of the sequence of events as above, the following facts will emerge : a) 07. 5. 2005 : the petitioners Ejectment Suit No. 688 of 1994 (renumbered as Ejectment Suit No. 2712 of 2000) stood decreed on contest as against the respondent No. 1 and on consent as against the pro forma respondent Nos. 1 and 2. b) 08. 6. 2005 : in the other suit filed by the respondent No. 1, the ex parte order of injunction stood vacated with adverse observations against him together with an observation that the heirs of Md. Sakeb had not even supported the claim of the respondent No. 1. c) 23. 8. 2005 : notwithstanding the aforementioned two facts, the respondent No. 1 still strongly resisted the efforts of the petitioners to get the decree passed in Ejectment Suit No. 688 of 1994 / Ejectment Suit No. 2712 of 2000 executed. (14) IT appears that on 26. 8. 2005 these petitioners appeared in T. A. No. 58 of 2005 and the respondent No. 1 (who was the appellant therein) was directed to serve copies of the memo of appeal as well as of the stay petition on them immediately. The case was fixed for 29. 8. 2005 for filing written objection. Notices were also ordered to be issued on the pro forma respondent Nos. 1 and 2 herein (i. e. Md. Salim and Md. Sajid Hussain) fixing 29. 8. 2005 for service report. (15) THE petitioners have stated that, in spite of the aforementioned Order dated 26. 8. 2005, the respondent No. 1 failed and neglected to comply with the directions as he obtained an order of stay of Ejectment Suit No. 2712 of 2000 by order dated 29. 8. 2005. This is also evident from Annexure P3 appended to this revision application. (15) THE petitioners have stated that, in spite of the aforementioned Order dated 26. 8. 2005, the respondent No. 1 failed and neglected to comply with the directions as he obtained an order of stay of Ejectment Suit No. 2712 of 2000 by order dated 29. 8. 2005. This is also evident from Annexure P3 appended to this revision application. (16) ON 14. 9. 2005 the learned Chief Judge, City Civil Court, Kolkata transferred the appeal to the Vth Bench for disposal as will be evident from order No. 5 of Annexure P3. (17) THEREAFTER, on 19. 9. 2005 the said learned Transferee Court fixed 1. 12. 2005 for hearing of the appeal. On 1. 12. 2005 the respondent No. 1 stated that he could not take steps for service of notice upon the pro forma respondent nos. 1 and 2 and so, he prayed permission for tiling requisites during the course of the day. The prayer was allowed and the case was fixed for 4. 1. 2006 for hearing of the appeal. (18) ON 4. 1. 2006 the respondent No. 1 again prayed for adjournment of the hearing and the learned Court, though having held that summons had been duly served upon the pro forma respondent Nos. 1 and 2 yet, for the ends of justice, granted time on the prayer made by the respondent No. 1. (19) IT appears that thereafter, the matter was fixed for 24. 1. 2006 for hearing of the appeal and on that day, two petitions were filed by the respondent No. 1. In one of the petitions, he made a prayer that the appeal should be heard along with Title Suit No. 276 of 2005 which, incidentally, was pending and in which case the Order dated 8. 6. 2005 had been passed vacating the order of injunction. (the relevant portions whereof have been quoted above). The other application that he filed was that notice of the appeal had been sent to the respondent Nos. 3 and 4 at the address disclosed by the plaintiffs and since no proper service report had been received, he therefore prayed leave for effecting service of notice of appeal upon them at the addresses given by him in that application. The other application that he filed was that notice of the appeal had been sent to the respondent Nos. 3 and 4 at the address disclosed by the plaintiffs and since no proper service report had been received, he therefore prayed leave for effecting service of notice of appeal upon them at the addresses given by him in that application. (20) THE learned Court rejected the prayer for analogous hearing but so far as the other prayer was concerned, he proceeded to observe that no prejudice would be caused to these petitioners and accordingly, the respondent No. 1 was allowed to serve notice upon the pro forma respondent Nos. 1 and 2 at their address disclosed by him. (21) FROM the foregoing facts and circumstances, as gathered from the pleadings as also from the copies of the orders appended, it appears -a) that the pro forma respondent Nos. 1 and 2 (namely viz. Md. Salim, Md. Sajid Hussain) did not contest the suit at all; b) that although they did not contest the suit, yet they, along with the respondent No. 1, had filed their joint written statement on 28. 9. 2001 and all of them had given their addresses as 53, Ripon Street, Kolkata-700016. This is evident from para 3 of this revision petition. (c) that in the title suit that the respondent No. 1 filed being Title Suit No. 276 of 2005 in which the order of injunction was vacated on 8. 6. 2005, this respondent No. 1 gave the addresses of these two persons as residents of Vill. Sardanga, P. O. Nurpur, P. S. Nanur, Dist. Birbhum; (d) that in Title Appeal No. 58 of 2005 filed by this respondent No. 1, he gave their addresses as 53. Ripon Street, (now Muzaffar Ahmed Street). Flat. No. "d"; P. S. Park Street. Kolkata-700016; and (e) that in his application dated 24. 1. 2006, wherein he prayed that he be allowed to serve notice and which is at running page 42 of this revision application, he gave the following addresses: respondent No. 3 Md. Salmi, Son of Late Md. Sakeb, C/o. Institute lor Motivating Self-Employment (IMSE), Monachiture, Labpur, Post-Labpur, District.-Bhirbhum. Respondent No. 4 md. Sajid Hassan Son of late Md. Sakeb. P. A. of Burrabazar Head Post Office, 7th Floor, Accounts Department, Kolkata-700007. Salmi, Son of Late Md. Sakeb, C/o. Institute lor Motivating Self-Employment (IMSE), Monachiture, Labpur, Post-Labpur, District.-Bhirbhum. Respondent No. 4 md. Sajid Hassan Son of late Md. Sakeb. P. A. of Burrabazar Head Post Office, 7th Floor, Accounts Department, Kolkata-700007. Let the copies of the plaint of T. S. No. 276 of 2005 and the memo of appeal of T. A. No. 58 of 2005 which wen; produced by the learned Counsel for the petitioners, be retained with the records of this case. (22) IT is thus evident that this respondent No. 1 gave different addresses at different stages. (23) UPON a perusal of the aforementioned facts and circumstances as gathered from the pleadings, it is relevant to note that it has been stated in paragraph 3 herein that all the three defendants (i. e. the respondent No. 1 and the pro forma respondents) had filed joint written statement. It has also been stated in paragraph 4 that on 20. 2. 2003 the respondent No. 1 had filed an additional written statement wherein he had stated that he was a sub-tenant, but it is evident that the pro forma respondent Nos. 1 and 2 never appeared. (24) LEARNED Counsel appearing for the petitioners submitted that in view of the fact that the pro forma respondents had never appeared and since the decree was passed on consent qua these pro forma respondents therefore, in terms of order 41 Rule 14 (4) it was not at, all necessary for the Court to allow service of notice. Order 4. 1 Rule 14 reads as follows : "publication and service of notice of day for hearing appeal.-(1)Notice of the day fixed under Rule 12 shall be affixed in the Appellate courthouse, and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the Appellate Court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice. (2) Appellate Court may itself cause notice to be served. (2) Appellate Court may itself cause notice to be served. Instead of sending the notice to the Court from whose decree the appeal is preferred, the appellate Court may itself cause the notice to be served on the respondent or on his pleader under the provisions above referred to. (3) The notice to be served on the respondent shall be accompanied by a copy of the memorandum of appeal. (4) Notwithstanding anything to the contrary contained in sub-rule (1), it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the Appellate Court, unless he has appeared and filed an address for the service in the Court of first instance or has appeared in the appeal. (5) Nothing in sub-rule (4) shall bar the respondent referred to in the appeal from defending it. (25) UPON a general impression of the overall facts brought before this Court and which have been taken note of in the preceding paragraphs it appears that perhaps, to a certain extent the grievance of the petitioners that the respondent no. 1 is attempting to. cause unnecessary delay, may be correct because the said respondent No. 1 filed an application wherein he wanted service of notice upon the pro forma respondent Nos. 1 and 2 notwithstanding the fact these two respondents had not even contested the suit and therefore, in terms of Order 41 Rule 14 (4), the Appellate Court had the discretion to observe that it was not necessary to serve notice upon them. (26) THIS Court also takes note of the fact that while vacating the interim order of injunction in Title Suit No. 276 of 2005, the City Civil Judge, 5th Court, Kolkata had observed that even the heirs of Md. Sakeb had not supported the claim of the plaintiff. The heirs of Md. Sakeb were obviously these pro forma respondent Nos. 1 and 2. (27) WHILE decreeing the suit on contest against the respondent No. 1 and on consent against the pro forma respondent Nos. 1 and 2, the learned 3rd Bench, presidency Small Causes Court at Kolkata observed that at the time of argument, the ld. lawyers of both parties had submitted that the defendant nos. 1 and 2. (27) WHILE decreeing the suit on contest against the respondent No. 1 and on consent against the pro forma respondent Nos. 1 and 2, the learned 3rd Bench, presidency Small Causes Court at Kolkata observed that at the time of argument, the ld. lawyers of both parties had submitted that the defendant nos. 1 and 2 had consented to the claim of the plaintiff and that they were not appearing since the date of giving their consent. (28) FROM a further perusal of the judgment dated 7. 5. 2005, it is evident that the respondent No. 1, who had deposed as D. W. 1 had himself stated in his cross-examination that the defendant Nos. 1 and 2 (i. e. the pro forma respondent nos. 1 and 2 herein) used to reside in their own village house. The respondent no. 1 also denied the suggestions that these pro forma respondents were in possession of the suit premises at any point of time. This will be evident from that portion of the judgment in which the ld. 3rd Bench, Presidency Small causes Court, Kolkata dealt with Issue No. 3. The same reads as follows: "issue No. 3 perused the Ext. 4 series i. e. the copy of the ejectment notice as well as the original ejectment notice from where it appears that by issuing the said ejectment notice on 26. 4. 93 upon the defendant Nos. 1 and 2 the plaintiff requested them to vacate the suit premises on the expiry of the month of June, 1993. The said notice was sent by registered post with A/d and the same was returned with postal remark "left" dt. 29. 4. 93. In his cross-examination the D. W. 1 specifically deposed that all along the defendant nos. 1 and 2 used to reside in their village house and he denied that the defendant Nos. 1 and 2 are in possession of the suit promises at any point of time. Therefore, as the defendant Nos. 1 and 2 are not residing in the suit premises it was not possible for the plaintiff to serve the notice in respect of the address of the suit premises. In this regard, perused the decision reported in AIR 1991 Calcutta page 152 where the Honble High Court. Calcutta held that when the notice sent by registered post with A/d came back unserved. In this regard, perused the decision reported in AIR 1991 Calcutta page 152 where the Honble High Court. Calcutta held that when the notice sent by registered post with A/d came back unserved. with the endorsement "left" it was served upon the tenant. It further appears from the decision reported in AIR 1995 Karnataka page 386 that there is no evidence that when the plaintiff leaving India had intimated the landlord of his address abroad or nominated a person to act in his behalf, the notice sent under registered post with A/d could not be served because of his admitted absence it would be deemed that he had been duly served the notice. It further appears from Ext. 2 vide letter of tenancy dt. 20. 11. 69 that originally Md. Sakeb was the original tenant. It further appears that the defendant Nos. 1 and 2 are the sons of Md. Sakeb. it is admitted by the defendant No. 3 that he is the brother of said Md. Sakeb. There is no evidence on record that besides the defendant Nos. 1 and 2. there were any other tenant in respect of the suit premises. Therefore, in view of the above factual aspect as well as the position of law the notice was duly served upon the defendants on 29. 4. 93, Accordingly, the defendants got the entire month of June, 1993 for vacating the suit premises. The suit was filed on 23. 12. 94 after giving the entire month of June, 1993 i.e. one month time for vacating the suit premises. Accordingly, the ejectment notice is legal valid and sufficient. " [sic] [underlining by this Court] (29) IT is also noticed that although the Ejectment Case No. 2712 of 2000 was decreed on 7. 5. 2005, the pro forma respondents appear not to have challenged the same till now. (30) FROM all these facts, it appears that the pro forma respondent Nos. 1 and 2 are not interested and therefore, it was not necessary for the Court below to allow the respondent No. 1 to serve notice upon them without taking into consideration the facts stated hereinabove. (31) IT was stated at the Bar that in Order 41 Rule 14 there has been a Calcutta Amendment and upon going through "the Civil Procedure Code, 1908", (2005 Edition) published by M/s Universal Law Publishing Company Private ltd. (31) IT was stated at the Bar that in Order 41 Rule 14 there has been a Calcutta Amendment and upon going through "the Civil Procedure Code, 1908", (2005 Edition) published by M/s Universal Law Publishing Company Private ltd. , it is found at page 387 thereof that the said Calcutta Amendment reads as follows : Calcutta- In Order 41, in Rule 14. after sub-rule (2), insert the following sub-rule, namely : " (3) It shall be in the discretion of the Appellate Court to make an order, at any stage of the appeal whether on its own motion, or ex-parte, dispensing with service of such notice on any respondent who did not appear, either at the hearing in the Court whose decree is complained of or at any proceeding subsequent to the decree of that Court or on the legal representatives of any such respondent : provided that - (a) the Court may require notice of the appeal to be published in any newspaper or newspapers as it may direct, (b) no such order shall percolate any such respondent or legal representative from appearing to contest the appeal. " (32) THIS Court is also of the view that the Appellate Court should have considered all these fuels before passing an order allowing the respondent No. 1 to serve notice upon the pro forma respondent Nos. 1 and 2. The Court could have passed an appropriate order in terms of either Order 41 Rule 14 (4) or in terms of the Calcutta Amendment. Having not done so, it must therefore be held that the Court below failed to exercise his jurisdiction vested in him by law and also acted with material irregularity when he passed the impugned order. (33) FOR the foregoing reasons, this Court is inclined to hold that the impugned order deserves to be set aside. (34) AS a consequence of this order, this civil revision application is accordingly allowed and the impugned order dated 24. 1. 2006 passed in Title Appeal No. 58 of 2005 by the learned Vth Bench, City Civil Court, Kolkata is set aside. No order is passed in relation to the order dated 4. 1. 2006 save and except to observe that the Court below will not henceforth give unnecessary adjournments unless there are sufficient and valid grounds for doing so. 1. 2006 passed in Title Appeal No. 58 of 2005 by the learned Vth Bench, City Civil Court, Kolkata is set aside. No order is passed in relation to the order dated 4. 1. 2006 save and except to observe that the Court below will not henceforth give unnecessary adjournments unless there are sufficient and valid grounds for doing so. In the facts and circumstances of this case, there shall be no order as to costs. Revisional application allowed.