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2013 DIGILAW 675 (CAL)

Ashoke Kumar Bhattacharyya v. Manju Bhattacharyya

2013-09-12

TARUN KUMAR GUPTA

body2013
JUDGMENT The plaintiff has filed this application under Article 227 of the Constitution of India challenging order no.34 dated 9th November, 2011 passed in T.S. No.125/2007 sofar as it relates to rejecting the plaintiffs application dated 13th January, 2011 and the application for recording effecting service upon the defendant no.3 and to proceed with the suit exparte against her. 2. Mr. Mazumder appearing for the petitioner plaintiff submits that the plaintiff filed a suit being T.S. No.125/2007 praying for eviction of the defendants being licensees under him. He submits that in said suit defendant no.1 and 2 filed joint written statement supported by an affidavit of defendant no.1 mother stating that she after getting necessary instructions from her son defendant no.2 she made said affidavit on behalf of both self and defendant no.2. He submits that in spite of filing of said joint written statement and contesting the trial jointly ld. trial court permitted defendant no.2 to again cross examine PW1 after she was thoroughly cross examined by the ld. counsel appearing for both defendant no.1 and 2. He submits that ld. trial court substantially erred in law by permitting defendant no.2 to again cross examine P.W.1 though another lawyer. In this connection he further submits that the defendant no.2 engaged a new lawyer only on 11th August, 2010 and the cross examination of PW1 was concluded on 5th August, 2010. He submits that ld. trial court wrongly held that fresh vokalatnama on behalf of the defendant no.2 was filed on 10th November, 2008. He submits that ld. trial court also substantially erred in law while rejecting the prayer of the plaintiff for noting that the service upon the defendant no.3 was sufficient and that the suit should go exparte against her. In this connection he submits that the notice sent through court returned with the endorsement of the process server that the defendant no.3 refused to accept the notice. He further submits that the notice sent to the defendant no.3 under registered post with a/d returned with the postal endorsement “not claimed”. He has cited a case law reported in 1970 CWN 676 (Ganesh Chandra Nandi Vs. M/s. J. N. Chatterjee & Ors.). 3. Mr. He further submits that the notice sent to the defendant no.3 under registered post with a/d returned with the postal endorsement “not claimed”. He has cited a case law reported in 1970 CWN 676 (Ganesh Chandra Nandi Vs. M/s. J. N. Chatterjee & Ors.). 3. Mr. Rakshit appearing for the O.P. No.1 and 2 is fair enough to admit that as new vokalatnama was filed by the defendant no.2 only on 11th August, 2010 after closing of cross examination of P.W.1 on 5th August, 2010 by the ld. counsel of both defendant no.1 and 2 he has nothing to say in support of the order impugned so far as it relates to rejection of plaintiffs petition on this score. 4. He submits that ld. trial court was of the opinion that the report of service so far as defendant no.3 is concerned was not sufficient and accordingly directed the plaintiff to take further steps for causing service upon the defendant no.3 and that this court should not interfere with the same. 5. I have considered the submissions of the ld. counsels for the parties. Perused the order impugned and other materials on record. Admittedly, both defendant no.1 and 2 jointly filed written statement together with an affidavit of the defendant no.1 mother on behalf of the defendant no.1 self and son defendant no.2. It is true that defendant no.2 has engaged a new lawyer for himself and that a fresh vokalatnama was filed only on 11th August, 2010 i.e. after closing of cross examination of P.W.1 on 5th August, 2010. Under these circumstances, the order impugned so far as it relates to rejection of plaintiffs petition dated 13th January, 2011 praying for debarring the defendant no.2 to further cross examine P.W.1 through his newly engaged lawyer cannot be sustained. 6. It appears that summons were sent to defendant no.3 in both ways i.e. through court process server and through registered post with a/d. The notice sent through court process server returned with the remark “refused”. The notice sent under registered post with a/d returned with the postal remarks “not claimed. Learned trial court by the second part of the order impugned did not accept said service as proper and good on the ground that the court process server was not examined. I failed to appreciate the aforesaid finding of the ld. court below. The notice sent under registered post with a/d returned with the postal remarks “not claimed. Learned trial court by the second part of the order impugned did not accept said service as proper and good on the ground that the court process server was not examined. I failed to appreciate the aforesaid finding of the ld. court below. The report of the process server has not been challenged by the defendant no.3 or anybody. The notice sent under registered post with a/d has returned with the postal endorsement “not claimed” which amounts to good service in terms of the ratio of case law of Ganesh Chandra Kundu (supra) particularly when no-one is coming before the court to challenge the genuinity of the said postal endorsement. Apart from that when the suit was placed in the peremptory board for examination of the witnesses it pre-supposes that the satisfaction of the court was earlier noted that the case was otherwise ready regarding service. 7. Considering all the aspects of the case, I hereby set aside the order impugned so far as it relates to further cross examination of PW1 by newly engaged lawyer by the defendant no.2 and not noting satisfaction of service regarding defendant no.3 and proceeding the suit exparte against her. The part of the cross examination of PW-1 made by newly engaged lawyer of the defendant no.2 should stand deleted. 8. As this is an old suit of 2007 learned trial court is requested to take all necessary steps for expeditiously disposal of the suit preferably within a period of four months from the date of communication of the order. 9. The revisional application stands disposed of accordingly. 10. No order as to costs.