Raj Kumar Shaw vs Bijoy Kumar Shaw & Ors.

The defendant/appellant has filed the instant first miscellaneous appeal

challenging an order being no. 76 dated 22nd August, 2016 passed by the learned

Judge, XIIIth Bench, City Civil Court at Calcutta in Misc. Case No. 1038 of 2012

rejecting his application under Order 9 Rule 13 of the Code of Civil Procedure.

At the time of admission of the appeal, a preliminary objection was raised

by Mr. Karmakar, learned advocate appearing for the plaintiffs/respondents

regarding maintainability of this appeal. It is contended by him that since the ex parte decree was passed in a suit for recovery of possession under Section 6 of

the Specific Relief Act, the order refusing to set aside the ex parte decree by the

court below is not appealable before this Court as the parent order, i.e., the ex

parte decree which was passed in such a suit is not open to appeal as per the

provision contained in Section 6(3) of the Specific Relief Act, 1963.

Mr. Karmakar further contends that Order 43 Rule 1(d) of the Civil

Procedure Code also provides that an appeal under the said Order will lie before

the appellate forum only when an order rejecting an application under Order 9

Rule 13 of the Code of Civil Procedure is passed in a case which is open to

appeal. According to him, since the ex parte decree passed in a suit under

Section 6 of the Specific Relief Act is not appealable, the instant appeal is not

maintainable in view of the provision contained in Order 43 Rule 1(d) of the Civil

Procedure Code.

Though it is pointed out by the learned advocate appearing for the

appellant that apart from the relief for recovery of possession of the suit

premises, the plaintiffs prayed for several other reliefs in the said suit. As such,

the said suit cannot be held to be suit under Section 6 of the Specific Relief Act.

In this context, we have considered the plaint itself.

We have seen that several other reliefs by way of injunction in addition to

the relief for recovery of possession were prayed for by the plaintiffs, but the

plaintiffs themselves described the said suit as a suit under Section 6 of the

Specific Relief Act and the entire cause of action for the said suit was founded on the basis of their dispossession from the immovable property otherwise than in

due process of law.

We have also considered the ex parte decree passed in the said suit on 5th

May, 2011 wherefrom we find that only the relief for recovery of possession was

granted by the learned Trial Judge in favour of the plaintiffs/respondents ex

parte.

Since the suit, as it was framed, in our view, is essentially a suit for

recovery of possession under Section 6 of the Specific Relief Act, we, by keeping

in mind the provision contained in Section 6(3) of the Specific Relief Act read with

Order 43 Rule 1(d) of the Code of Civil Procedure, hold that the instant appeal is

not maintainable before this Court. We, thus, dismiss the appeal on the ground

of its maintainability alone. Interim order, if there be any, also stands dismissed.

We, however, make it clear that while dismissing this appeal, we have not

entered into the merit of the appeal. As such, the order of dismissal of this appeal

will not preclude the appellant from seeking appropriate remedy in appropriate

forum in accordance with law.

On the prayer of the learned advocate appearing for the appellant, leave is

granted to him to take back the certified copy of the impugned order on

production of a true photostat copy of the same.

In view of dismissal of the appeal, in the manner as aforesaid, no further

order need be passed on the applications filed in connection therewith. Hence, all interlocutory applications filed in connection with the appeal are, thus, deemed

to be disposed of.