Niharendu Mitra vs Swagata Mitra & Ors

CAN 9098 of 2018

This is an application taken out by the appellant to call for the records of the Title Suit No. 84 of 2008 and the Misc Case No. 7 of 2012 so that the same may be heard and disposed of along with the instant appeal analogously.

It appears that a Title Suit No. 84 of 2008 was filed by the appellant against the respondents for recovery of possession in respect of the portion of the immovable property upon alleged revocation of license. The said suit was dismissed for default as no steps were taken by the appellant therein. The said Misc Case No. 7 of 2012 was filed for restoration of the said suit, which was dismissed for default. It is essentially an application for Order 9 Rule 9 of the Code of Civil Procedure which was dismissed by an order dated 12th February, 2014. The appeal has been preferred against the order of dismissal of the said Misc Appeal which is pending before the Court of appeal below. The subsequent suit was filed by the predecessor-of-interest of the present respondents being Title Suit No. 75 of 2013 for declaration of share and separation thereof. Both the suits filed by the rival parties proceeded independently and the suit filed by the predecessor of the present respondents was decreed in preliminary form and such preliminary decree is challenged in the instant appeal. Since the cause of action of both the suits are different, distinct and separate, it is not necessary to decide the same analogously. Even there was no attempt on the part of the appellant to get both the suits consolidated and be disposed of together. We do not find that it is a fit case where the misc appeal pending before the Court of appeal below should be transferred and tagged with the instant appeal as the cause of action as well as the relief claimed therein are independent.

The application being CAN 9098 of 2018 is hereby dismissed.

CAN 11609 of 2015

This is an application for stay of the impugned judgment and decree dated 13th March, 2015 passed in Title Suit No. 75 of 2013 by the learned Civil Judge (Senior Division), Kalyani till the disposal of the instant appeal.

After hearing the respective counsels, we do not find that it would be equitable to stay all further proceedings in the partition suit as an appeal is pending against the preliminary decree.

The application is thus disposed of directing the learned Judge in the trial Court to appoint a Partition Commissioner and proceed with the commission work but shall not pass a final decree until the disposal of the instant application.

The application is thus disposed of.

There shall be no order as to costs.

FAT 83 of 2016

The respondent nos. 1, 2 and 3 are represented before us. The vokalatnama on behalf of such respondents has been filed vide Filing No. A 10494 on 2nd May, 2017. The appeal shall be treated ready as regards service.

The appellant is directed to put in written up notice forms and correct postal address for service of notice of appeal upon the respondents within a period of two weeks from date. The office is directed to cause the service upon the respondents immediately upon the requisites put in by the appellant.

The requisites namely, postal costs and written up notice forms for effecting service of notice of appeal upon the remaining respondents within a week from date.

The office is directed to take steps for effecting the service of notice of appeal upon the said respondents immediately.

Let the Lower Court Records be called for by the Special Messenger at the cost of the appellant. Such costs shall be put in within a week from date.

Immediately, after arrival of the Lower Court Records, office shall examine the same and shall issue notice of arrival of Lower Court Records on the learned Advocate for the appellant.

The appellant is directed to prepare and file requisite number of informal paper books-printed, typewritten or cyclostyled, as the case may be -out of court, within a period of four weeks from date of service of notice of arrival of Lower Court Records and shall file the same in the department.

After the appeal is made ready for hearing, the parties are at liberty to mention for early disposal of the instant appeal.

Liberty to mention the appeal for hearing before the appropriate Bench.