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2014 DIGILAW 263 (CAL)

Chanchal Bhattacharjee v. Srikumar Bhattacharjee

2014-03-21

SUBRATA TALUKDAR

body2014
JUDGMENT : Subrata Talukdar, J. Shri Gayen, learned counsel with Shri Dutta, learned advocate appear for the petitioner in CO 1146 of 2013. Shri Biswas, learned advocate with Ms. De (Ganguly), learned advocate appear for the opposite party nos.2,3 and 4 in CO 1146 of 2013. 2. Shri Biswas also appears for the petitioners in CAN No. 9152 of 2013. Shri Gayen appears for the sole opposite party in CAN No. 9152 of 2013. 3. By filing CAN No. 9152 of 2013 Shri Biswas prays for recalling of the order dated 29th July, 2013 passed by an Hon'ble Single Bench of this Court allowing CO 1146 of 2013 ex parte. Shri Biswas submits that caveat was filed on behalf of his clients vide caveat no.1193 of 2013 dated 18th March, 2013. Endorsement of such caveat was made by the registry on the Courts file of CO 1146 of 2013. According to Shri Biswas, in spite of lodging of the caveat no notice was served on him or his clients by the petitioner and the matter was decided ex parte by the order dated 29th July, 2013. 4. Shri Biswas further points out that it has been specifically pleaded at paragraph no.8 of CAN No. 9152 of 2013 that his clients came to learn of the order dated 29th July, 2013 on 5th August, 2013 when the learned advocate for the petitioner appearing before the learned trial Court filed an application under Order 39 Rule 7 of the Civil Procedure Code for hearing in terms of the direction of the Hon'ble High Court dated 29th July, 2013. He submits that CAN No. 9152 of 2013 was affirmed on 2nd September, 2013, i.e. within one month of the date of knowledge on 5th August, 2013 of the Hon'ble High Courts order dated 29th July, 2013. He prays for recalling of the order dated 29th July, 2013 so that he is granted an opportunity to contest CO 1146 of 2013. 5. In support of his contention Shri Biswas relies on a decision of this Hon'ble Court reported in 90 C.W.N. page 288 in the matter of Sukumar Roy & Anr. v. Pratul Kumar Roy. The Hon'ble Division Bench (Coram: Anil Kumar Sen and Sudhir Ranjan Roy, JJ) held as follows:- "Rules of caveat are meant to give an opportunity to the party to contest any claim of injunction before it is made. v. Pratul Kumar Roy. The Hon'ble Division Bench (Coram: Anil Kumar Sen and Sudhir Ranjan Roy, JJ) held as follows:- "Rules of caveat are meant to give an opportunity to the party to contest any claim of injunction before it is made. If, caveat was actually lodged before the order was sought for, the Court could not proceed on the erroneous endorsement made by the Assistant Registrar. The only course open before the Court was to recall the order forthwith and re-hear the matter on contest when such defect was pointed out. This should be the procedure followed to fulfil the real object for the Rule of caveat". 6. Shri Biswas further submits that during pendency of the CO 1146 of 2013, Shri Ajay Bhattacharjee, the opposite party no.1 has died. Such death occurred on 28th March, 2013. He annexes the death certificate to CAN No. 9152 of 2013. Shri Biswas submits that in spite of the death of the opposite party no.1, no steps have been taken by the petitioner to substitute his legal heirs in place and stead of him in the revisional application. 7. Shri Gayen does not dispute the proposition of law elucidated by the Hon'ble High Court in 90 C.W.N page 288. He also submits that the knowledge of death of the opposite party no.1 has been received by him on behalf of his clients after the service of CAN No.9152 of 2013. He prays for an opportunity to substitute the legal heirs of the opposite party no.1 in the civil revisional application. 8. Heard. Considered the materials on record. 9. In view of the law elucidated by the Hon'ble Division Bench of this Court in 90 C.W.N. page 288, there can be no dispute with the proposition laid down to the effect that the Court in circumstances where opportunity of hearing is denied to the caveator is under the obligation to recall the order and re-hear the matter on contest, CAN No. 9152 of 2013 is allowed. The order dated 29th July, 2013 is recalled. CO 1146 of 2013 is directed to be placed in the list for further consideration upon notice to the opposite parties. 10. The petitioner is at liberty to take such step for substitution of the opposite party no.1 in the main revisional application, if advised, upon notice to the opposite parties. 11. The order dated 29th July, 2013 is recalled. CO 1146 of 2013 is directed to be placed in the list for further consideration upon notice to the opposite parties. 10. The petitioner is at liberty to take such step for substitution of the opposite party no.1 in the main revisional application, if advised, upon notice to the opposite parties. 11. Urgent photostat certified xerox copy of this order, if applied for, be supplied to the parties, as early as possible.