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2010 DIGILAW 1009 (CAL)

Gita Sen v. Ashis Sen

2010-08-18

PRASENJIT MANDAL

body2010
JUDGMENT Prasenjit Mandal, J. 1. THIS application is at the instance of the plaintiff and is directed against the order dated December 22, 2009 passed by the learned Civil Judge (Senior Division), Fourth Court, Alipore, District South 24-Parganas in Title Suit No. 92 of 2002 thereby passing certain observations, framing of issues and lastly fixing the next date on January 13, 2010 for discovery and peremptory hearing. 2. THE short fact is that the plaintiff filed the Title Suit No. 92 of 2002 praying for a decree for declaration that the deed of trust dated August 13, 1947 executed by Bimal Behari Sen (since deceased) is still continuing, a decree declaring that the purported deeds of sale dated March 17, 1998, March 18, 1998 and March 19, 1998 executed by the defendant Nos. 1, 2 and 3 in favour of the defendant No.4 are illegal, invalid, void and ab initio, a decree for declaring that the plaintiff is entitled to decree for possession, a decree for permanent injunction and other reliefs. In that suit, the defendant/opposite party No. 4 entered in the suit long ago. But he did not contest the suit ultimately. None of the defendants also contested the suit and the learned Trial Judge decreed the suit ex parte partially. Being aggrieved by the said order of partial decree, the plaintiff/petitioner preferred an appeal being Title Appeal No.91 of 2007. In that appeal, the plaintiff/petitioner filed an application for amendment of the plaint. The learned Appellate Court sent back the case to the learned Trial Court to consider the prayer for amendment. The learned Appellate Court also directed the learned Trial Court to give an opportunity to the appellant/plaintiff to offer evidence in this regard, of course, after service of notice to the defendants of the suit and then to write a fresh judgment in the light of amended plaint, if any, and send the .same to the Court for final disposal of the appeal. Accordingly, the plaintiff/petitioner filed an application for amendment of the plaint which was granted by the learned Trial Court. As per order of the learned Appellate Court, the learned Trial Judge issued notice upon the defendants. Thereafter, the defendant Nos.1 and 4 entered appearance on August 5, 2009 together with a show-cause and the written statement. The written statement filed by the defendant Nos.1 and 4 was accepted by the Court. As per order of the learned Appellate Court, the learned Trial Judge issued notice upon the defendants. Thereafter, the defendant Nos.1 and 4 entered appearance on August 5, 2009 together with a show-cause and the written statement. The written statement filed by the defendant Nos.1 and 4 was accepted by the Court. Thereafter, the defendant No.3 entered appearance on August 28, 2009 along with a show- cause and a written statement. Such a written statement filed by the defendant No. 3 was also accepted. Thereafter, the learned Trial Judge framed issues on the basis of the pleadings of the parties and directed the parties to make discovery, if any, and fixed the next date for peremptory hearing on January 13, 2010 by the impugned order. Being aggrieved, the plaintiff/petitioner has preferred this application. Mr. Bhattacharyya, learned Advocate appearing on behalf of the petitioner, submits that the learned Appellate Court passed the order of limited remand under Order 41 Rule 25 of the Code of Civil Procedure and it was not an open remand at all. But the learned Trial Judge has dealt with the matter as if it was an open remand by accepting the written statement filed by the opposite parties. He has framed issues on the basis of the pleadings of the parties. In fact, the defendants/opposite parties did not file any written statement earlier. So, the written statements filed by the opposite parties subsequently should not be taken into consideration. He has also submitted that since the learned Appellate Court has retained the appeal, the order of remand is limited one under Order 41 Rule 25 of the CPC. Lastly, he has submitted that if the written statement is to be accepted/ it must be limited to the remanded portion of the plaint and not beyond that. Thus, he has submitted that the order impugned should be set aside. 3. ON the other hand, Mr. Kundu, learned Advocate appearing on behalf of the opposite party No.3, submits in details about the merit of the suit/the order impugned and also the order passed by the learned Appellate Court. Thus, he submits that the impugned order should be maintained. 4. MR. Chatterjee, learned Advocate appearing on behalf of the opposite party No.4, submits that the remand has been made directing to take evidence on the amended plaint after service of notice upon the defendants. Thus, he submits that the impugned order should be maintained. 4. MR. Chatterjee, learned Advocate appearing on behalf of the opposite party No.4, submits that the remand has been made directing to take evidence on the amended plaint after service of notice upon the defendants. So, when notice was to be issued over the fact of amended plaint/ the learned Trial Judge was justified in framing issues on the basis of the pleadings of the parties and so there is no illegality. He also contends that since an opportunity was given to the opposite parties, the order of remand is not limited to the amended portion of the plaint, but to the entire amended plaint as indicated in the order of the learned Appellate Court and so it was an order under the provisions of Order 41 Rule 23 of the CPC. In supports of his decision, he relies the decision of Bhaba Sundari Devi and Anr. vs. Aditya Nath Chaudhuri and Ors., reported in AIR 1927 Cal 401. Having considered the submission of the learned Counsel for the parties and on going through the record, I find that initially the suit was decreed in part, against the opposite parties. Being not satisfied with the decree in part/ the plaintiff preferred an appeal and then the learned Appellate Court remanded the matter to the learned Trial Judge by passing the following orders: "Order No.14 dt. 24.04.08: Appellant files petition under order 6 Rule 17 CPC supported by an affidavit praying for amendment as per schedule on the ground stated therein. The appeal is running ex parte against the respondent. This petition is moved by the appellant. This amendment petition is filed at the later stage of appeal when it was almost heard ex parte. Be that as it may in view of the said petition for amendment, I send the case back to Court below to consider the amendment prayer in the light of the fact of the case according to law. If allowed, appellant/plaintiff be given opportunity of offer evidence in this regard, of course after service of notice to the defendant of the suit. Send back the case to Court below for necessary disposal of amendment petition, addl. evidence if any and write fresh judgment in the light of amended plaint if any and send the same back to this Court for final disposal of the appeal. Send back the case to Court below for necessary disposal of amendment petition, addl. evidence if any and write fresh judgment in the light of amended plaint if any and send the same back to this Court for final disposal of the appeal. Let copy of this order amendment petition LCR be send back to Court below for compliance." 5. THEREFORE, it appears that though the learned Appellate Court has retained the appeal to its file, he sent back the case to the learned Trial Judge on remand directing to consider the application for amendment of the plaint and then to record additional evidence, if any and write a fresh judgment in the light of amended plaint, if any and send back to the Court for final disposal of the appeal. The learned Appellate Court also directed that the appellant was given opportunity to offer evidence in this regard, of course, after service of notice to the defendant of the suit. This means that before accepting evidence, a notice is to be served upon the opposite party meaning thereby for giving an opportunity to defend the suit to the defendants. The order passed by the learned Appellate Court, therefore, appears to be an anomalous order. Though, it is not fully covered within the provisions of Order 41 Rule 23 of the CPC, apparently, the learned Appellate Court passed orders under the provisions of Order 41 Rule 25 of the CPC because he had retained the appeal. But whenever an opportunity was given to the defendants/opposite parties of hearing, the opposite parties should be allowed to adduce evidence after filing of the written statement. Otherwise, service of notice upon the defendants/opposite parties would be meaningless. Though the learned Appellate Court retained the appeal, I am of the view that since an opportunity was given to the defendants/opposite parties, the order of remand should be taken not for limited portions for denying the amended portion only but to the entire amended plaint, to the defendants/opposite parties. The decision of Bhaba Sundari Devi (supra) is very much relevant and so when such type of remand is passed, it should be taken as an order under Order 41 Rule 23 of the CPC and not one under Order 41 Rule 25 of the CPC. 6. The decision of Bhaba Sundari Devi (supra) is very much relevant and so when such type of remand is passed, it should be taken as an order under Order 41 Rule 23 of the CPC and not one under Order 41 Rule 25 of the CPC. 6. IN the above facts and circumstances, I am of the view that the learned Trial Judge was justified in accepting the written statements, filed by the contesting defendants though they did not file any written statement earlier. So, the order impugned cannot be said to be perverse or without any jurisdiction at all. I am of the view that whenever the Court granted opportunity to the defendants/opposite parties for hearing and the defendants/opposite parties have chosen to filed written statements, the suit looses its character of ex parte hearing. It should be treated as contested one and so the learned Trial Judge was justified in framing of issues on the basis of the pleadings of the parties. In that view of the matter, I am of the opinion that the learned Trial Judge was justified in passing the impugned order. Therefore, there is nothing to interfere with the said impugned order. 7. ACCORDINGLY, this application is dismissed. There will be no order as to costs.