title appeal 29 of 11

T.A. - 29/11

Order No. 14, dated – 30.01.2013.

Both appellant and respondents files hazira through Ld. Advocates.

To day is fixed for hearing of the petition under order 6 rule 17 read with

section 151 of C.P.C.

Heard Ld. Advocates of both sides. Ld. Advocate for the appellant submitted

that as certain new facts has come into existence which if not included in the written

statement would be prejudicial to the appellant. He further submitted that this appeal

has been filed against the judgement and decree passed by the Ld. Trial Court in an

eviction suit which was decreed against the defendant. If the fact which is sought to be

introduced through the amendment is not allowed to be introduced. The Court will not

be able to adjudicate the case property on merits. He further submitted that amendment

can be allowed at any stage and refer AIR 2008, Supreme Court, 2139 & AIR 2006,

Supreme Court, 1648.

Ld. Advocate for the respondent, on the other hand, submitted that the facts

which were sought to be introduced were false. He further submitted that by filling the

amendment petition the appellants were trying to make out a case for remand was that

the eviction may be delayed. He further submitted that the documents as produced by

the appellant to day does not proved the fact which the appellant is trying to introduced

through the amendment.

Considered submission of both sides.

After careful consideration of the petition and the documents as filed by the

appellant, I do not find anything which goes to show that the fact which the appellant

is trying to introduce through the amendment took place after the passing off the

decree by the Ld. Trial Court. Further I feel that by this amendment, appellant is trying

to further delay the hearing of the appeal.

Hence, it is

O R D E R E D

that the petition under order 6 rule 17 is rejected on contest, without cost.

Fix …............................ for hearing of the Appeal.

Dictated & Corrected by me

Civil Judge, (Sr. Divn.), Civil Judge, (Sr. Divn.),Ranaghat, Ndaia Ranaghat, Nadia.

T.A. - 25/11

Both appellant and respondent files hazira through their respective Advocates.

To day is fixed for hearing of the petition, filed on 12.12.2012, praying for

exemption from sending summons to respondent nos. 11, 12, 13 & 15, on the ground

that they did not contest the suit out of which this Appeal arose.

Heard both sides over the petition. The contesting respondents have no

objection against the petition. Further, on perusal of L.C.R, I find that respondent nos.

11, 12, 13 & 15, did not contest the suit. Accordingly the petition praying for

exempting the appellant from sending summons to respondent nos. 11 to 13 & 15 is

allowed, without cost.

Fix …............................... for hearing of the Appeal.



T.A. - 41/12

Order No. 03, dated – 05.02.2013.

The record is put up by petition. Along with the petition praying for stay of all

further proceedings of Title Execution Case No. 11/2012 pending before the Court of

Ld. Civil Judge, (Jr. Divn.), 2nd Court, Ranaghat, till the disposal of the Appeal.

Heard Ld. Advocate for the appellant. The put up prayer allowed.

Heard Ld. Advocat for the appellant over the stay petition. Considered.

Considering the fact that an appeal is filed against the judgement and decree

passed by Ld. Civil Judge, (Jr. Divn.), 2nd Court, Ranaghat, in Title Suit No. 101/2009,

I am of the opinion that if no stay order is passed for staying of all proceedings of Title

Execution Case No. 11/2012, the very filed of the Appeal would become infructuous.

Hence, it is

O R D E R E D

that all proceedings of Title Execution Case No. 11/2012 is stayed till the

disposal of the Appeal.

Let a copy of this order be sent to the Court below.



T.A. - 20/08

Order No. 31, dated – 05.02.2013.

Both the appellant and the respondent file hazira through their Ld. Advocates.

An affidavit is filed by the appellant. Let the same be kept with the record.

To day is fixed for hearing of the petition under order 41 rule 27 read with

section 151 of CPC. Accordingly the record is taken up.

Ld. Advocate for the appellant submitted that the deed, dated 17.01.1962 was

filed by the plaintiff/appellant in the Lower Court but unfortunately the said document

was not marked exhibit. As the said deed is a very vital deed and if not marked exhibit,

no proper judgement can be passed by the Court, so prays for marking of the said deed

as exhibit.

Ld. Advocate for the respondent, on the other hand, submitted that the deed

which the appellant is praying for being marked was never filed in the Lower Court,

accordingly the same was not marked as exhibit and that there is observation regarding

the same in the judgement passed by the Ld. Trial Judge. He further submitted that the

said deed was the deed of the appellant and he was the custodian of the said deed. As

the said deed was not produced in the Trial Court and reason for not proceeding the

same has not been stated and as the appellant never stated in the memo of appeal that

the Ld. Trial Court never marked the deed even though it was filed in that Court, the

petition cannot be allowed, because that would result in filling up the lacuna made by

the appellant, which cannot be done under order 41 rule 27 of CPC. So prays that the

petition should be rejected.

Heard Ld. Advocates of both sides. Perused the case record. Order 41 rule 27 of

CPC, provides that a party to an appeal shall not be entitled to produce additional

evidence whether oral or documentary in the Appellate Court. But if (I) the Court from

whose decree the appeal is preferred refused to admit evidence which ought to have

been admitted, or (ii) the party seeking to produce additional evidence establishes that

notwithstanding the exercises of due diligence, such evidence was not within his

knowledge or could not, after the exercises of due diligence be produced by him at the

time when the decree appealed against was passed, (iii) the appellate Court requires

any documents to be produced or any witness to be examined to enable it to pronounce

judgement, or for any other substantial cause.

On perusal of the case record, I find that there is no ground in the memo of

appeal filed by the appellant that though the deed which the appellant is praying for

being marked was filed in the Lower Court, the Lower Court did not mark the same as

exhibit. Further on perusal of the Lower Court record, I find that Ld. Trial Court had

marked the R.S. Parcha and five deeds filed by the defendant/appellant as exhibits.

Contd......................

On perusal of the Lower Court record, I find two Firistis were filed by the

defendant/ appellant. One was filed on 5th November 1996, where I find mention of

deed, dated – 17.01.1962, but those documents were received back by the defendant on

07.09.1991 with condition to refile the same. This goes to show that the deed, dated –

17.01.1962, which the defendant draws for being marked as exhibit, was taken back by

the defendant.

On 26th February 2002, I find another Firisti. In the said Firisti there is no

mention regarding the deed, dated – 17.01.1962. Further on that date the documents

which were filed in the Court were marked as exhibited “A” to “F” by the Ld. Trial

Court. Thus what the defendant/appellant say that the Ld. Trial Court did not

admit/mark the deed, dated – 17.01.1962 is not correct. In fact the document, even

though was filed in the Lower Court on 5th November 1990, was taken back by the

defendant on 07.09.1991 and was not refiled on 26th February, 2002. When the

defendant found that decree was passed against when in the Title Suit 59/01 the

defendant/appellant filed this petition stating false fact, in order to fill up his lacuna

and that to four years after filing of the Appeal. As the defendant has not come to Court

with clean hands and as under order 41 rule 27 of CPC no evidence can be allowed to

be given by the parties to the Appeal to fill up his lacuna.

Hence, it is

O R D E R E D

that the instant petition under order 41 rule 27 of CPC is rejected by the Court

on contest, without cost.

Fix …........................... for hearing of the Appeal.



T.A. - 41/12

Order No. 05, dated – 02.03.2013.

The record is put up by petition along with the petition staying of all further

proceedings of all Title Execution Case No. 11/12 pending before the Court of Ld.

Civil Judge, (Jr. Divn.), 2nd Court, Ranaghat, till the disposal of this appeal.

Heard Ld. Advocate for the appellant. The put up prayer is allowed.

Heard Ld. Advocate for the appellant over the stay petition. Perused the case

record. Considering the fact that against the decree and order passed by Ld. Civil

Judge, (Jr. Divn.), 2nd Court, Ranaghat, the appellant herein has filed this appeal. I

think there should be an order of stay of the execution proceedings of Title Execution

Case No. 11/12.

Hence, it is

O R D E R E D

that the prayer for stay of all proceedings of Title Execution Case No. 11/12 is

allowed and it is further ordered that all proceedings of Title Execution Case No. 11/12

pending before the Court of the Ld. Civil Judge, (Jr. Divn.), 2nd Court, Ranaghat, is

stayed till the disposal of this appeal.

Let a copy of this order be sent to the Court below.



T.A. - 18/12

Order No. 06, dated – 05.03.2013.

Appellant files hazira through Ld. Advocate.

Respondent files hazira through his Ld. Advocate.

Today is fixed for hearing of the petition under order 41 rule 3(a) and Section

151 of CPC praying for condonation of delay in filing the appeal on ex-parte basis. As

the respondent files hazira, the petition is taken up for hearing in presence of both

sides.

Ld. Advocate for the appellant submitted that the appeal was supposed to be

filed by 31.05.2012 but was filed on 18.06.2012 because of the ground that the 'Bar' of

Ranaghat, Court was on seized work from 11.05.2012 to 17.06.2012 as there was no

fault on the part of the appellant in filling the appeal at a delay stage so the appellant

prayed that the delay from 31.05.2012 to 17.06.2012 be condoned and the appeal

admitted.

Ld. Advocate for the respondent submitted that it was fact that the 'Bar' was on

seized work during that period and he had no objection if the delay was condoned.

Considered submission of both sides. Perused, as it is fact that the 'Bar' was on

seized work for about 36 days, I am of the opinion that the appellant did not in fact

have any latches in filling the appeal at a delay stage. Hence, the delay should be

condoned.

Accordingly, it is

O R D E R E D

that the petition under order 41 rule 3(a) read with Section 151 of CPC is

allowed on contest, without cost.

The delay in filling the appeal is condoned and the appeal is admitted.

Fix …............................ for hearing of the appeal.



T.A. - 17/12

Order No. 06, dated – 05.03.2013.


Respondent files hazira through his Ld. Advocate.

Today is fixed for hearing of the petition under order 41 rule 3(a) and Section

151 of CPC praying for condonation of delay in filing the appeal on ex-parte basis. As

the respondent files hazira, the petition is taken up for hearing in presence of both

sides.

Ld. Advocate for the appellant submitted that the appeal was supposed to be

filed by 31.05.2012 but was filed on 18.06.2012 because of the ground that the 'Bar' of

Ranaghat, Court was on seized work from 11.05.2012 to 17.06.2012 as there was no

fault on the part of the appellant in filling the appeal at a delay stage so the appellant

prayed that the delay from 31.05.2012 to 17.06.2012 be condoned and the appeal

admitted.

Ld. Advocate for the respondent submitted that it was fact that the 'Bar' was on

seized work during that period and he had no objection if the delay was condoned.

Considered submission of both sides. Perused, as it is fact that the 'Bar' was on

seized work for about 36 days, I am of the opinion that the appellant did not in fact

have any latches in filling the appeal at a delay stage. Hence, the delay should be

condoned.

Accordingly, it is

O R D E R E D

that the petition under order 41 rule 3(a) read with Section 151 of CPC is


The delay in filling the appeal is condoned and the appeal is admitted.

Fix …............................ for hearing of the appeal.



T.A. - 03/13

Later, dated – 05.03.2013.

The put up petition and the stay petition are both moved.

Heard Ld. Advocate for the appellant. Perused. The put up prayer is allowed.

Heard Ld. Advocate for the appellant over the stay petition. Perused.

On perusal, I find that the appellant had filed a petition under order 41 rule 5

read with section 151 of CPC praying for staying of all proceedings of Title Execution

Case No. 12/2012, pending before the Court of Ld. Civil Judge, (Jr. Divn.), 2nd Court at

Ranaghat, for execution of the decree, passed in Title Suit No. 88/10 till the disposal of

the appeal.

On perusal of the record, I find that a petition Under Section 5 of the Limitation

Act is pending for hearing and the appeal has not been admitted as yet.

Under the circumstances, I am of the opinion that unless and until the appeal is

admitted there should not be any order of stay of Title Execution Case No. 12/2012.

Hence, it is

O R D E R E D

that the petition under order 41 rule 5 read with section 151 of CPC is refused

at this stage. The petition will be taken into consideration only after the disposal of the

petition Under Section 5 of the Limitation Act, if the appeal is admitted.



T.A. - 07/13

Order No. , dated – 08.03.2013.

The record is put up by petition along with the petition praying for moving the

stay petition.

Heard Ld. Advocate for the appellant. The put up prayer is allowed.

Heard Ld. Advocate for the appellant over the stay petition. Perused.

On perusal, I find that the appellant has prayed for stay of the execution of the

decree, passed in Title Suit No. 78/09 till the disposal of the appeal. Though the

appellant had prayed for staying all the execution proceeding till the disposal of the

appeal but have not stated the number of Title Execution Case, the proceedings of

which they went the Court to stay.

Decrees of Title Suit are normally executed through Title Execution Case. Once

decree is passed, the Title Suit normally gates disposed off. So there is no proceedings

that can be stayed once decree is passed in a Title Suit. Execution proceedings of all

Title Execution Case are stayed in case of execution of a decree as the appellant does

not stated the number of Title Execution Case, the proceedings of which they want to

say, therefore, the petition for stay of execution as filed by the appellant is refused.



T.A. - 26/12

Order No. 05, dated – 13.03.2013.

The record is put up by petition along with the petition praying for stay of Title

Execution Case No. 17/12 pending before the Court of the Ld. Civil Judge, (Jr. Divn.),

1st Court, Ranaghat, Nadia.

Heard Ld. Advocate. The put up prayer is allowed.

Heard Ld. Advocate over the stay petition. Considered.

As this appeal has been filed against the judgement and decree passed by the

Ld. Court of Civil Judge, (Jr. Divn.), 1st Court, Ranaghat, in Title Suit 98/08, I am of

the opinion that all proceedings of the execution case that has been filed for execution

of the decree of Title Suit 98/08 should be stayed.

Hence, it is

O R D E R E D

that the stay petition is filed by the appellant is allowed ex-parte, without cost.

It is ordered that all proceedings of Title Execution Case No. 17/12 be stayed till the

disposal of this appeal i.e. Title Appeal 26/12.

Let a copy of this order be sent to the Ld. Court below.



T.A. - 28/12

Order No. 04, dated – 14.03.2013.

Appellant files hazira through Ld. Advocate and a xerox copy of documents by

way of Firisti. Let the same be kept with the record.

Respondent files written objection without Court fee against the petition under

order 6 rule 17 of CPC. Respondent also files a petition under order 22 rule 10 read

with section 151 of CPC, it is without Court fee.

Today is fixed for hearing of the petition under order 6 rule 17 of CPC.

Heard Ld. Advocates of both sides. Perused the petition.

On perusal of the petition, I find, that by the petition the appellant / defendant

wants to add the fact that the sole plaintiff / respondent of this case had transferred the

schedule property along with construction thereon i.e. the entire diacritical interest in

favour of the Suvendu Pal on 10.04.2012 in the existing written statement.

Ld. Advocate for the plaintiff / respondent submitted that the petition under

order 6 rule 17 was not maintainable. He further submitted that as the property was

transferred after decree was passed in the Title Suit out of which this appeal arose, so

no amendment can be made in the written statement.

Considered submission of both sides. As appeal is continuation of the suit

itself, I cannot agree with the submission as made by the Ld. Advocate of the

respondent. Further, I am of the opinion that the amendment sought for would help in

proper adjudication of the case.

Hence, it is

O R D E R E D

that the petition under order 6 rule 17 of CPC is allowed on contest, without

cost.

D.A. to amend the written statement accordingly.

Fix …....................... for hearing of the petition under order 22 rule 10 read

with section 151 of CPC.

Written objection, if any, in the mean time.

D.C.F. of Rs. 10 by respondent.



T.A. - 14/07

Order No. 35, dated 16.03.2013.

Both respondent and appellants files hazira through their respective

advocates.


Written objection is filed against the petition by the defendant / respondents.

Heard both sides. Perused.

Vide the petition under order 1 rule 10 of CPC, the appellant / plaintiff

has sought to expunge the name of Banamali Nandi, i.e. respondent no. 2 who

was died during the pendency of this appeal, on the ground that Banamali

Nandi did not acquire any interest in the suit property.

Ld. Advocate for the defendants / respondents opposed the petition

saying that Banamali Nandi, has deposed before the Lower Court contested

the suit alone and decree was drawn up in his name also and there was

specific averment in the plaint against the defendant no. 2 and the same was

adjudicated by the Lower Court. The appellant in order to avoid abatement of

the appeal was trying to expunge the name of the defendant no. 2 instead of

substituting his legal heirs.

Considered submission of both sides. Perused the case record.

On perusal, I find that the deceased defendant no. 2 Banamali Nandi,

as the defendant / respondent has contented the suit and there is specific

averment against him in the suit. If at this state the name of deceased

Banamali Nandi is allowed to be expunged the entire facts of the case would

change which cannot be allowed at the stage of appeal.

Hence, it is

O R D E R E D

that the petition under order 1 rule 10 read with section 151 of CPC is

rejected on contest, without cost.

Fix …........................ for taking necessary steps by the appellant.



T.A. - 06/08

Order No. 35, dated – 25.03.2013.

Both appellant and respondent files hazira through their respective

Advocates.

Today is fixed for hearing of the petition under order 41 rule 27 read with

section 151 of CPC.

Heard Ld. Advocate of both sides.

Ld. Advocate for the appellant submitted that the documents which she

wants to file in Court as additional evidence were misplaced as such the same

could not be filed before the Ld. Trial Court. He further submitted that the

documents which the appellant wants to produce as additional evidence were

very much necessary for adjudication of the dispute between the parties.

He further submitted that there were no laches on the part of the

appellant in producing the same before the Ld. Trial Court. In support of his

contention he referred to 2010(1) c.l.j SC 2008, AIR 2003 Calcutta 263. AIR

2003 Supreme Court2328, AIR 1973 Alahabad page 111. AIR 1963 Supreme

Court 1526.

Ld. Advocate for the respondent submitted that the petition was totally a

misconceived petition. He further argued that there is no averment in the plaint

about the documents. That without amendment of the original plaint the

petition cannot be allowed. He further submitted that additional evidence

cannot be allowed to be adduced to fill up lacunas. Further the documents

which the appellant wants to produce as additional evidence were always in

custody of the appellant and the same was not produced due to his

negligence. So the petition for adducing additional evidence cannot be

allowed. In support of his contention he referred to AIR 2000 Karnataka 239,

AIR 1992 Delhi 192, and AIR 1975 Punjab & Hariana 342.

On perusal of the case record, I find that the Title Suit out of which this

Appeal arose was a suit for declaration and injunction. Whether the appellant /

plaintiff had contented that the suit property as described in the schedule of

Contd....................

the plaint, originally belonged to Prafulla Kr. Mukherjee and Khagendra Nath

Mukherjee. Both the persons were intermedaries and they filed the suit for

partition being Title Suit No. 52/1925. Khagendra Nath Mukherjee, out of the

15 decimals land got 12 decimals of land and he retained the same by filing 'B'

form. Out of the 12 decimals 10 decimals with structure thereon was

transferred by Khagendra Nath Mukherjee by gift deed to Susuma Devi, i.e.

mother of the plaintiff. Though the suit property was recorded in two plots, out

of which schedule Á' was shown as retained and schedule 'B' as vested. As

the schedule 'B' property was retained land was the vesting was illegal. As the

main issue that needs to be decided in this case is, whether the 'B' schedule

property was vested or not and when the respondents, I find did not produce

any such documents to show by which case the 'B' schedule property got

vested, I am of the opinion that for proper adjudication of the case. The

documents which the appellant wants to produce as additional evidence

should be allowed to be filed.

Hence, it is

O R D E R E D

that the petition under order 41 rule 27 read with section 151 is allowed


Fix …......................... for necessary steps by appellant.



T.A. - 16/09

Order No. 25, dated – 03.04.2013.


Advocates.


section 151 of CPC. No written objection is filed by the respondent.

Heard both sides over the petition under order 22 rule 2 read with

section 151 of CPC. Vide the petition the appellant has prayed that the word

dead be recorded against the name of appellant no. 1 who expired on

26.06.2012 and also for exumption from substituting the heirs of appellant no.

1 Satirani Bhattacharya as her heirs that is appellant nos. 2 to 5 are already in

record.

Ld. Advocate for the respondent submitted that the petition is

misconceived one because the petition under order 22 rule 2 are not to be filed

for substitution of heirs of deceased party to the suit or appeal.

Considered, submission of both sides.

Even though the section may be misquoted in a petition but when in

other respect the petition is correct there can be no ground to reject the same.

Hence, it is

O R D E R E D

that the prayer as made by the appellant is allowed on contest, without

cost. Let the word dead be written against the name of deceased appellant no.

1 Sitirani Bhattacharya.

D.A. to do the needful.

Fix …....................... for hearing of the petition under order 11 rule 1 & 2

read with section 151 of CPC.

W/O if any in the meantime.



T.A. - 26/11

Order No. 24, dated – 26.04.2013.



section 151 of CPC on ex-parte.

Heard Ld. Advocate for the plaintiff. Perused the case record.

On perusal of the case record, I find that the plaintiff had by way of

amendment tried to admit the evidence of the deed which the plaintiff has filed

this petition under order 41 rule 27 read with section 151 of CPC. Further I find

that the respondent is not contesting this case as I do not find any such laches

on the part of the plaintiff in not trying to introduce the evidence which he is

trying to introduce by way of this petition. I am of the opinion that the petition

should be allowed for proper adjudication of this appeal.

Hence, it is

O R D E R E D


allowed ex-parte.

Fix …............................... for taking necessary steps by appellant.



T.A. - 16/09

Order No. 26, dated – 16.05.2013.

Both the appellant and the respondents files hazira through their

respective Advocates.


section 151 of CPC.

Heard Ld. Advocates of both sides. Vide the petition the appellant has

made some interrogatories to the respondent regarding the date and place of

death of defendant / respondent no. 9 Aparesh Chakraborty and also the

names and addresses of his legal heirs. Though the contesting respondent did

not file any written objection but verbally submitted that since the respondent

no. 9 was not in any way related to him, therefore, the burden cannot be put on

him in answering question as asked by the appellant.

Considered submission of both sides. Though I do not disagree with the

submission as made by the Ld. Advocate for the respondent but I find that on

15.12.2012 this respondent had filed death report informing the death of

respondent no. 9. This goes to show that the respondent has information

regarding the respondent no. 9. Thus for speedy disposal of this appeal, I am

of the opinion that the respondent should answer the interrogatories as asked

for by the appellant.

Hence, it is

O R D E R E D



The respondent is directed to give answers to the interrogatories as

asked for by the appellant.

To …........................... for answers of interrogatories by the respondent.



T.A. - 28/12

Order No. 05, dated – 16.05.2013.

Both the appellant and respondent files hazira through their respective

advocates.

Today is fixed for hearing of the petition under order 22 rule 10 of CPC,

which was filed by one Suvendu Pal, praying for leaving of the court to add him

as party to the appeal on the ground that the respondent Kalpana Rani Pal has

transferred the suit property to him vide deed of gift being no. 1873 dated

10.04.2012. Appellant files written objection against the petition.

Heard Ld. Advocates of both sides. Ld. Advocate for the appellant

submitted that order 22 rule 10 of CPC was applicable in case of suit and not

in case of appeal. Further as already the suit has been decreed in favour of

the respondent and an execution case has also been filed for execution of the

decree, the petition can not be allowed as in that case the decree of the Lower

Court needed to be amended. Ld. Advocate for the respondent on the other

hand submitted that as the appeal was continuation of the suit the petition was

maintainable.

Considered submission of both sides. On perusal of the record what I

find is that the Title Suit out of which this appeal arose there was a prayer for

eviction of the defendant from the suit property on the ground that the

defendants / appellants were licensee of the suit property. I also find that the

Ld. Trial Court had decreed the suit in favour of the plaintiff / respondent with a

direction that the defendant / appellant vacate the suit property on the ground

that the defendants licensee was not an irrevocable license. As I find that the

Title Suit out of which this appeal arose, there was a prayer for eviction of

licensee, therefore, even though the suit property has been transferred in

favour of the petitioner he cannot be allowed to contest the appeal because in

that case the petitioner has to be considered as the new lassy of the suit

property has a right of the own lassy that the respondent of this appeal

become extend upon the transfer of the suit property. Further I find that order

22 rule 10 applies in case of a suit and not in case of appeal.

Contd...................

Hence, it is

O R D E R E D

that the petition under order 22 rule 10 of CPC is rejected on contest,

without cost.

Fix …............................. for hearing of the appeal.

D.C.F of Rs. 10/- by respondent.



T.A. - 24/09

Order No. 19, dated – 11.06.2013.

Both appellant and respondents files hazira through their respective

Advocates.

Appellant files a petition under order 6 rule 17 read with section 151 of

CPC.

Heard Ld. Advocates of both sides over the petition. Vide the petition

the appellant has sought for amendment regarding the fact that in the

memorandum of appeal by mistake instead of writing that this appeal has been

filed against Title Suit 54/06 it has been written that the Title Appeal was filed

against Title Suit 34/06.

Heard Ld. Advocates of both sides.

Considering the fact that the amendment sought for is formal in nature,

it is,

O R D E R E D



D.A is directed to do the needful. D.A is also directed to call for Title Suit

54/06 from the Court of Civil Judge, (Jr. Divn.), 1st Court, Ranaghat, Nadia.

Fix ….......................... for L.C.R.



T.A. - 26/11

Order No. 25, dated – 15.06.2013.


Appellant also filed an affidavit-in-chief for additional evidence which

was not pressed, thereafter, appellant filed a petition praying for marking of

certified copy of the partition deed being no. 6663, dated – 24.08.1992.

Heard Ld. Advocate for the appellant. Perused as the petition under

order 41 rule 27 read with section 151 of CPC has already allowed by the

court. The petition as made by the appellant for marking of the above said

deed is allowed.

Let the certified copy of the deed being no. 6663 for the year 1992 be

marked as exhibit – 3.

Fix …............................ for hearing of the appeal on ex-parte.



T.A. - 12/10

Order No. 32, dated – 19.06.2013.

Both parties files hazira through Ld. Advocate.


Heard Ld. Advocates of both sides over the petition. Perused the

petition. Vide the petition the appellant has prayed for adducing additional

evidence / documentary evidence which she was unable to produce during the

trial of the Title Suit being No. 163/04 as some of the said documents were

filed in connection with the Misc. Case before the Court of Ld. District Judge,

Purilia and some of the documents were lying in a suitcase in her matrimonial

home.

Ld. Advocate for the appellant submitted that as the title suit was filed

for declaration that the appellant was the first wife of Tapan Kr. Sarkar and as

the said suit was dismissed and as the documents which the appellant /

plaintiff wants to adduced as evidence now are very vital to prove the fact that

she was the first wife of Tapan Kr. Sarkar and as there was no negligency on

the part of the appellant / plaintiff in being unable to produced the same the

petition should be allowed for proper adjudication of the appeal. Ld. Advocate

for the appellant referred to AIR 1986 Orissa 130, AIR 1986 Calcutta 403, AIR

1963 Supreme Court 1526, in support of his submission.

Ld. Advocate for the respondent / defendant on the other hand,

submitted that the application was filed only to drag the case. He further

submitted that the plaintiff / appellant though had knowledge about the said

documents did not file the same in the Trial Court. He further submitted that

the said documents would not in any way help in proper adjudication of the

case because those documents were some letters, death certificate of Tapan

Kr. Sarkar and a voter I-Card of the appellant and the ration card of the

appellant. In support of his contention he referred to AIR 1976 Supreme Court

105.

Considered submission of both sides. On considering the documents

which the appellant wants to file, now I find was within the full knowledge of the

plaintiff / appellant during the trial stage. The appellant never stated anything

about the said documents in the Trail Court nor made any attempt to produce

the same. Order 41 rule 27 provides that parties to an appeal shall not be

Contd.................

entitled to produce additional evidence whether oral or documentary in the

Appellate Court except (I) when the court from whose decree the appeal is

preferred has refused to admit evidence which ought to have been admitted or

(ii) the party seeking to produce additional evidence establishes that

notwithstanding the exercise was due diligence such evidence was not within

his knowledge or could not after the exercise of due diligence be produced by

him when the decree appeal against was passed....................................

In this case I find that none of the above grounds appeal, because

neither the Trial Court refused to admit the said documents nor did the

appellant. I find had exercise due diligence to produce the same in the Trial

Court where said documents were well within her knowledge.

Considering the same the petition under order 41 rule 27 is rejected on

contest, without cost.

Fix ….................................. for hearing of the appeal.



T.A. - 20/12

Order No. 11, dated – 16.07.2013.

Both appellant and respondent nos. 1 & 2'Ka' files hazira through their

respective Advocates.

Today is fixed for hearing of the petition under section 151 of CPC

praying for police help.

Heard Ld. Advocates of both sides. Perused.

On perusal I find that vide the petition the appellant had prayed for

police help on the grounds that the respondent nos. 1 & 2'Ka' against whom

that there is an order of status-quo, are trying to make construction over the

suit property in violation of the order of status-quo and when the appellant

reported the matter to the police the police refused to take any action stating

that there was no order from the court.

The respondents filed written objection stating that whatever

construction was made before the filing of the suit out of which this appeal

arose that the appellants with intention to drag the appeal was filing one

petition after and other.


On perusal I find that though the appellant had stated that the

respondents have been making arrangement for making further construction

on the suit property and they had reported the matter to the police and the

police did not take any action against the respondents even though there is an

order of status-quo against them, saying that there was no order from the court

for extending police help. However I find that no G.D entry is produced before

the court nor any mention has been made as to whether any G.D was made in

the police station for violation of the status-quo order by the appellant.

Considering the same I am of the opinion that the petition under section

151 of CPC for police help should not be allowed.

Hence, it is

O R D E R E D

3

that the petition under section 151 of CPC is rejected on contest,

without cost. The appellant I find were to take fresh steps upon the

respondent no. 2 but I find that no steps have been taken by the appellant

against the respondent no. 2 today also.

Contd...............

T.A. - 20/12

Fix ….............................. for taking proper steps upon the respondent

no. 2 i.d. the appeal shall be dismissed.

Dictated and corrected by me.

Civil Judge (Sr. Divn.), Civil Judge (Sr. Divn.), Ranaghat, Nadia. Ranaghat, Nadia.

T.A. - 05/13

Order No. 04, dated – 19.07.2013.

Appellant files a petition under order 41 rule 5 read with section 151 of

CPC.

Heard Ld. Advocate for the appellant over the petition.

Vide the petition the appellant has prayed for staying the proceedings of

Title Execution Case No. 01/13 on the ground as stated in the petition.

Considering the fact that this appeal has been filed against the

judgement and decree passed by Ld. Civil Judge (Jr. Divn.), 2nd Court,

Ranaghat, in Title Suit No. 109/07 and appeal is still to be decided, I am of the

opinion that the petition praying for staying of all proceedings of Title Execution

Case No. 01/13 should be allowed.

Hence, it is

O R D E R E D

that all proceedings of Title Execution Case No. 01/13 pending before

the court of Ld. Civil Judge, (Jr. Divn), 2nd Court, Ranaghat, which has been

filed for execution of the decree of Title Suit No. 109/07 is stayed till the

disposal of this appeal.

Let a copy of this order be sent to the court below.



T.A. - 15/10

Order No. 19, dated – 24.07.2013.

Appellants files hazira through Ld. Advocate and also requisites along

with process fee.

D.A is directed to issue the same.

Today is also fixed for hearing of the petition under order 22 rule 4 read

with section 151 of CPC. Vide the petition the plaintiff has prayed for

substitution of the heirs of respondent no. 1 Kashinath Bhagat who died on

28.03.2013 leaving behind the heirs as is mention in the petition. As the

petition for substitution is made within the period of limitation I have no

objection in allowing the same.

Hence, it is

O R D E R E D


allowed.

Let the name of respondent no. 1 Kashinath Bhagat be expunged from

the memo of appeal and the names of his heirs as is stated in the petition be

substituted in his place as respondent no. 1(a) to 1(e).

D.A to do the needful.

Fix ….............................. for steps upon substituted defendant nos. 1(a)

to 1(e) and S.R upon defendant nos. 2 and 10.



T.A. - 11/11

Order No. 14, dated – 31.07.2013.


Advocates.

Perused the petition. Vide the petition the appellant has prayed for

expunging the name of respondent no. 2 from memo-of-appeal on the ground

that the said respondent has died and adding the name of his son Aritra Ghosh

in his place on the ground as stated in the petition.

Ld. Advocate for the respondents though did not file any objection

against the said petition but during submission stated that the respondent no. 2

had died on 29.10.2011 and as the petition for expunging the name of the

respondent no. 2 is made as such a belated stage the appeal has abated

against the respondent no. 2. Hence, the petition cannot be allowed.


On consideration of the submission as made by both sides and on

perusal of the record I find that the respondent no. 2 since deceased is the

plaintiff no. 2 of Title Suit 80/07 out of which this appeal arose. As appeal is

continuation of the suit and as I find that decree has been passed in favour of

all the plaintiffs in the said suit I am of the opinion that this petition should be

allowed.

Hence, is it

O R D E R E D


allowed on contest without cost. Let the name of respondent no. 2 be

expunged from the memo-of-appeal and the name of his heirs as stated in the

petition be substituted in his place as respondent no. 2(a).


Fix …................................ for steps upon defendant no. 2(A) and D.C.F

of Rs. 10.



T.A. - 28/08

Order No. 27, dated – 06.08.2013.


Advocates.

Today is fixed for hearing of the substitution petition. No written

objection has been filed by the respondent against the said petition.

Vide the petition the appellant has prayed for substitution of the heirs of

plaintiff no. 2 who had died on 26.01.2013 leaving behind the appellant no. 1

and the persons whose name has been mentioned in the petition as his heirs.

Considering the fact that no objection has been filed against the said

petition and the respondent though filed hazira but does not move the petition

on call, the petition in my opinion should be allowed.

Hence, it is

O R D E R E D


allowed, without cost. Let the name of appellant no. 2 be expunged from the

memo-of-appeal and the names of his heirs as has been mentioned in the

petition be substituted in his place as appellant nos. 2(a) to 2(g) respectively.


Fix …................................ for hearing of the appeal.



T.A. - 08/12

Order No. 10, dated – 17.08.2013.

The record is put up by petition, along with the petition praying for

staying all the proceedings of T.S Execution Case No. 15/12 on the ground

stated in the petition. Copy served upon the respondent.

Heard Ld. Advocate for the appellant over the stay petition.

Heard. The put up petition is allowed.

Considering the fact that this appeal has been filed against the

judgement and decree passed by the court of Ld. Civil Judge, (Jr. Divn.), 2nd

Court, Ranaghat, in Title Suit72/05, I am of the opinion that the proceedings of

Title Execution Case No. 15/12 should be stayed till the disposal of this appeal.

Hence, it is

O R D E R E D

that all proceedings of Title Execution Case No. 15/12 which has been

filed for execution of the decree passed in Title Suit 72/05 is stayed till the

disposal of this appeal.

Let a copy of this order be sent to the court bellow.

To date.



T.A. - 15/12

Order No. 10, dated – 20.08.2013.


Advocates.

Today is fixed for hearing of the petition under order 22 rule 3 of Cpc.

Heard Ld. Advocates of both sides over the petition. Vide the petition

the appellant has prayed for substituting the heirs of the appellant Vhaktaram

Biswas who died on 19.06.2013.

Considering the fact that the petition for substitution is filed within the

period of limitation, the same is allowed by the court.

Let the name of appellant be expunged from the memo-of-appeal and

the name of his heirs be substituted in his place as appellant nos. 1(a) to 1(f).


L.C.R has been received.

Fix …................................ for hearing of the appeal.



T.A. - 06/12

Order No. 10, dated – 13.09.2013.


Advocates.


section 151 of CPC.

Heard Ld. Advocates of both sides over the petition.

Vide the petition under order 41 rule 27 of CPC the appellant has

prayed for allowing the additional evidence that has been produced by the

appellant and also give the appellant an opportunity to prove the same by

calling evidence on the ground as stated in the petition.

Ld. Advocate for the respondent submitted that the petition as filed by

the plaintiff should not be allowed as the appellant had purposely not produced

those documents in the Lower Court even though she had ample opportunity

to produce the same before the Court. He further submitted that vide petition

under order 41 rule 27 an appellant cannot be allowed to produce any

documents to fill up lacuna when the appellant on proposal not produce those

documents in the trial Court.

Ld. Advocte for the appellant referred to AIR 1979 Supreme Court 533

and AIR 1986 Orissa 130 and AIR 1997 Supreme Court 3243 in support of his

submission.


Considering the fact and circumstances of the case and also for the

proper adjudication of the appeal, I m of the opinion that the petition as filed by

the plaintiff should be allowed.

Hence, it is

O R D E R E D



Fix ........................................... for evidence by appellant.



T.A. - 48/11

Order No. 11, dated – 16.09.2013.

Appellant files a petition praying for taking of case of the P. Board.

Respondent files hazira through their respective Advocates.

Appellant also files a petition under order 26 rule 9 praying for local

inspection.

Heard. The record is taken off the P. Board.

Heard Ld. Advocates of both sides over the local inspection petition.

Perused the case record, I find that the ground on which the appellant

has prayed for local inspection vide this petition on similar grounds a local

inspection petition was filed in the Lower Court. The Lower Court allowed the

petition and Advocate Commissioner had already given report basing on the

said points.

Considering the same, I am of the opinion that this local inspection

petition should not be allowed because vide this petition the appellant is trying

to fill up lacunas and also trying to produce evidence which cannot be allowed.

Hence, it is

O R D E R E D

that the petition for local inspection dated – 16.09.2013 is rejected,

without cost.

Fix .......................................... for hearing of the appeal.



T.A. - 37/11

Order No. 12, dated – 27.09.2013.

Appellants files hazira through Ld. Advocate and D.C.F of Rs. 40/-.

No steps is taken by the respondent. None moves for the respondent on

calls.

Today is fixed for hearing of the injunction petition. Accordingly the

record is taken up.

Heard Ld. Advocate for the plaintiff over the injunction petition.

Vide the petition the appellant had prayed for temporary injunction

against the respondent on the ground that the respondent are trying to grab

valuable portion of the suit plot and taken benefit before demarcation and also

trying to change the nature and character of the suit plot and have planted

seeds of 'Kalai Dal' in the fertilized area of the suit plot.

Considered submission of Ld. Advocate for the appellants.

Considering the fact that this appeal has been filed against Title Suit

60/07 which was a partition suit, I am of the opinion that till the disposal of this

appeal there should be an order in the nature of status-quo.

Hence, it is

O R D E R E D

that both the appellants and the respondent are directed to maintain

status-quo as regards the existing nature, character and possession of the suit

property till the disposal of this appeal.

Accordingly the injunction petition is disposed off.

To date for hearing of the appeal.



T.A. - 14/11

Order No. 16, dated – 19.11.2013.

Both parties files hazira through their respective Advocates.

Today is fixed for hearing of the petition under order 39 rule 1 and 2 of

CPC and also of the Appeal.

Today the petition under order 39 rule 1 and 2 of CPC is taken up for

hearing. The hearing of the appeal is adjourned today.

Vide the petition under order 39 rule 1 and 2 the appellant herein has

prayed for injunction restraining the respondent from dispossessing the

appellant from the suit property till the disposal of the appeal on the ground

that the respondent is trying to disposes the appellant from the suit property

since before the date of filing of the Title Suit out of which this appeal arose.

The respondent filed W/O against the petition.

Considered submission of Ld. Advocates of both sides. On

consideration of the petition for injunction I find that the appellant has said that

the respondent is trying to disposes the appellant from the suit property before

the date of filing of the Title Suit. I find that the Title Suit was filed in the year

2007 and the suit was decreed on 28th January 2011. The cause of action for

asking the injunction I find arose sometimes in 2007. It is 2013 now, further the

Title Suit has also been decreed. In all this years the appellant never filed any

petition for injunction restraining the respondent from dispossessing him from

the suit property. I am of the opinion that filing this petition the appellant is

unnecessarily trying to drag the hearing of the appeal as the Title Suit out of

which this appeal arose has been decreed in favour of the respondent.

Under the said circumstances I am not inclined to allow the petition

praying for injunction.

Hence, it is

O R D E R E D

that the petition under order 39 rule 1 and 2 of CPC is rejected on

contest without cost.

Fix .................................... for hearing of the appeal. No adjournments

will be entertained.



T.A. - 29/12

Order No. 10, dated – 22.11.2013.

Appellant files process fee along with summons upon respondent no. 3.

Let the same be issued.

Today is fixed for hearing of the petition dated – 23.04.2013 under order

22 rule 4 read with section 151 of CPC praying for substitution of the heirs

deceased respondent no. 1 who died on 05.02.2013 leaving behind the heirs

as mentioned in the petition.

Heard. As the petition for substitution is made within time, it is

O R D E R E D


allowed on ex-parte, without cost.

Let the name of deceased respondent no. 1 be expunged from the

cause title of the plaint and the names of his heirs be substituted in his place

as respondent nos. 1(a) to 1(d).



T.A. - 17/11

Order No. 19, dated – 03.12.2013.

The record is put up by petition, along with petition praying for correction

of the judgement and the decree in the manner as stated in the petition.

Heard. The put up prayer is allowed.

Heard Ld. Advocate for the respondent over the petition under section

151 and 152 of CPC.

Perused. On perusal I find that due to mistake, instead of mentioning

the Title Suit no. as 69/2005 it had been mentioned in certain portion of the

judgement and the decree as 25/2008. As the mistake was on the part of the

court, I am of the opinion that the petition should be allowed.

Hence, it is

O R D E R E D

that the petition under section 151 ad 152 of CPC is allowed, without

cost.

D.A is directed to do the needful.



T.A. - 04/08

Order No. 70, dated – 08.01.2014.


Respondent files hazira through their Ld. Advocate.

Today is fixed for hearing of the petition filed by the appellant, praying

for exemption from issuing notice upon respondent no. 4 on the ground that

the respondent no. 4 did not contest the suit out of which the appeal arose.


Perused the petition and the case record, I find that Title Suit 511/70 out

of which this appeal arose was dismissed on contest against the defendants.

As the said suit has been dismissed on contest it shows that all the defendants

had contested the suit. Therefore, I find no ground to allow the appellant's

prayer for exemption from issuing summons on respondent no. 4 on the

ground stated in the petition.

Hence, it is

O R D E R E D

that the petition filed by the appellant is rejected, without cost on contest.

The appellant is directed to issue summons upon respondent no. 4.

Fix ......................................... for necessary steps upon deceased

respondent no. 4 Afsar Ali Tarafdar, i.d the appeal shall stand abetted.



T.A. - 28/02

Order No. 48, dated – 08.01.2014.

Both appellant and defendants files hazira through their respective

Advocates.

Today is fixed for hearing of the petition praying for exemption from

service of summons upon respondent no. 4 on the ground that respondent no.

4 did not contest the Title Suit 510/70.

Heard Ld. Advocates of both sides.

Perused the case record. On perusal, I find that Title Suit 510/70 out of

which this appeal arose was dismissed on contest. This goes to show that the

suit was contested by all the defendants.

Accordingly the petition as has been filed by the appellant stands

rejected.

Fix ........................................... for steps, i.d the appeal shall stands

abetted.



T.A. - 28/07

Order No. 36, dated – 21.03.2014.


Advocates.

Today is fixed for hearing of argument regarding the petition under order

41 rule 3(a) read with section 151 of CPC.

The petition under order 41 rule 3(a) read with section 151 of CPC has

been filed by the appellant of this case praying for condoning the delay 7 days

in filing this appeal.

It is the case of the appellant that she is an old and ailing lady and on

her behalf, her son Deependra Narayan Saha used to look after Title Suit

256/1995, out of which this appeal arose. After Title Suit 256/95 was decreed,

the appellant / plaintiff's son instructed the Advocate to obtain certified copy of

the judgement and decree and file appeal. That on 01.09.2007 certified copy

of the judgement and decree was received by the clerk of her Advocate but the

misplaced the same and failed to handover the file and the certified copy to the

Advocate of the appellant for preparing memorandum of appeal and file the

same. On 05.10.2007 when the appellant's son came to her Advocate to

handover the monthly rent which is deposited in the rent control and asked for

the next date of the appeal as he was under the impression that the appeal

was filed, that the clerk, of his Advocate namely Dinesh Biswas having

understood that he had forgotten to handover the certified copy of the

judgement and decree to his Advocate searched out the same and handed

over the same along with the brief to the appellant's Advocate. The appellant's

could draft the memorandum of the appeal on 06.10.2007 and filed the same

on 08.10.2007. That as the delay in filing the appeal was due to the mistake

and forgetfulness of the clerk of his Advocate and there was no lapse or on

negligence on the part of the appellant or her son, the appellant prayed that

the delay of the 7 days be condoned and the appeal allowed.

The respondent filed written objection against the petition under order

49 rule 3(a) read with section 151 of CPC denying the facts of the petition

under order 49 rule 3(a) read with section 151 of CPC it is the case of the

Contd........

T.A. - 28/07

(2)

respondent that the appellant was a troublesome tenant and the delay was

caused by the appellant's negligence, therefore, the delayed should not be

condoned.

The son of the appellant i.e. Deependra Narayan Saha deposed as PW-

1 and the respondent no. 2 Kalpana Pal deposed as DW-1.

On going through the cross-examination of PW-1, I find that PW-1 says

that the judgement of the suit out of which this appeal arose was passed on

01.09.2007 that he got the certified copy of the order on 01.09.2007 and after

receiving the copy of the judgement he asked his Advocate to file the appeal. I

also find from the cross-examination of PW-1 that PW-1 says that he came to

his Advocate on 01.09.2007 and on 01.09.2007 he came to know about the

judgement and before 01.09.2007 he had come to his Advocate's place in the

month of August. However, on going through the application under order 41

rule 3(a) read with section 151 of CPC, I find that in the said application it is

mentioned that on 01.09.2007 the certified copy of the judgement was

received by the clerk of the appellant's Advocate and the appellant's son came

to the appellant's Advocate on 05.10.2007. As PW-1 has specifically stated

that he has come to his Advocate on 01.09.2007 then what is stated in the

petition under order 49 rule 3(a) that the appellant's son had come to his

Advocate on 05.10.2007 and also in his affidavit-in-chief is not true and it also

comes out from the same that PW-1 who happens to be the 'Tatbirkarak of this

appeal and also of the suit actually does not have any knowledge as to what is

written in the petition under order 49 rule 3(a) read with section 151 of CPC

and whatever has been written in the petition and the affidavit-in-chief has

been totally written by the Advocate of the appellant only to cover up the delay

in filing of this appeal.

Further, it has come from the evidence of PW-1 that he did not know the

date of judgement of Title Suit 256/95 out of which this appeal arose and that

as he had come to his Advocate on 01.09.2007 he had come to know about

the judgement of Title Suit 256/95, this also goes to show that PW-1 actually

did not have any specific knowledge about Title Suit 256/95 and had

intentionally filed this appeal at a delay stage so that the execution of the

decree of Title Suit 256/95 gets delayed.

Contd........

T.A. - 28/07

(3)

Delay of each day has also to be explained. In the petition under

order 41 rule 3(a) read with section 151 of CPC it is stated that it was due to

the negligence of the Advocate's clerk who misplaced the certified copy of the

judgement and decree got by him on 01.09.2007 there was delay in filing the

appeal but it has come out from the evidence of PW-1 that on 01.09.2007,

itself, he came to know about the judgement and asked the appellant's

Advocate to file the appeal. In that case what is stated in the petition that only

on 05.10.2007 when the appellant's son came to the Advocates chamber it

was realized that the Law Clerk of appellant Advocate had misplaced the

certified copy of the judgement and decree and had on that day the same was

traced out and thereafter, the memo-of-appeal was drafted, cannot be

believed. Further, negligence on the part of the Advocate's clerk cannot be a

ground for condoning delay in filing the appeal and specially when in this case

the delay of each day has not been explained and when there is discrepancy

between the evidence of PW-1 and what is stated in the petition.

In view of the above discussion, I am to say that actually there was no

negligence on the part of the Advocate's clerk as has been stated in the

petition under order 41 rule 3(a) read with section 151 of CPC but it was due to

the negligence of the appellant that the appeal was filed at a delay stage. So,

in my opinion the delay should not be condoned.

Hence, it is

O R D E R E D

that the petition under order 41 rule 3(a) read with section 151 of CPC is

rejected on contest, without cost. As a result the appeal is not admitted.

Let a copy of this order be sent to the court below.

Dictated & Corrected

Civil Judge, (Sr. Divn.), Civil Judge, (Sr. Divn.), Ranaghat, Nadia. Ranaghat, Nadia.

T.A. - 16/12

Order No. 11, dated – 24.03.2014.


The petition under order 22 rule 4 read with section 151 of CPC is taken

up for hearing.

Heard Ld. Advocate for the appellant.

Vide the petition the plaintiff has prayed for substitution of the legal heirs

of the deceased respondent no. 1.

Considering the fact that the petition is made within time, it is,

O R D E R E D

that the petition under order 22 rule 4 read with section 151 of CPC is allowed,

without cost.

Let the name of deceased respondent no. 1 be expunged from the

cause title of the plaint and the names of his heirs be substituted in his place

as appellant no. 1(a) to 1(d).


The hearing of this appeal is thus adjourn today.

Fix ....................................... for steps upon substituted respondent nos.

1(a) to 1(d).



T.A. - 01/10

Order No. 27, dated – 01.04.2014.

Respondents are present by filing hazira.

Appellant files a petition praying for taking of the case of the P. Board

and also a petition under order 6 rule 17 read with section 151 of CPC, praying

for amendment of the written statement.

Heard. The record is taken of the P. Board.

Heard Ld. Advocates of both sides over the petition under order 6 rule

17 read with section 151 of CPC.

Ld. Advocate for the respondent / plaintiff submitted that the amendment

may be allowed as the fact which the appellant is trying to insert by the

amendment has already been stated during the evidence of the appellant /

defendant in the suit.

Considering the submission of Ld. Advocates of both sides and as the

respondent does not object the amendment sought for by the appellant the

petition under order 6 rule 17 read with section 151 of CPC is allowed on

contest, without cost.

Fix ...................................... for filing of amended copy of written

statement and for hearing of the appeal. No adjournment will be allowed under

any condition.



T.A. - 17/12

Order No. 11, dated – 07.04.2014.


Advocates.

Today is fixed for hearing of the appeal along with Title Appeal 18/12.

Appellant filed a petition praying for taking of the records of the P. Board

and petitions under order 6 rule 17 read with section 151 of CPC in both Title

Appeal 17/12 and Title Appeal 18/12.

Vide the petition the appellant has prayed for amendment of the written

statement in the manner as stated in the petition.

Heard Ld. Advocates of both sides over the petitions.

Ld. Advocate for the resp9ndent raised objection against the petition

under order 6 rule 17 read with section 151 of CPC.

Considered submission of Ld. Advocates of both sides. Perused the

petition and the case record.

I am of the opinion that vide the said amendment the appellant is trying

to fill up the lacuna as nowhere from the said petition, I finds that the

amendment as sought for by the appellant is a subsequent event.

Considering the same the petition under order 6 rule 17 read with

section 151 of CPC in my opinion should not be allowed.

Hence, it is

O R D E R E D

that the petition under order 6 rule 17 read with section 151 of CPC is rejected


Fix ….......................... for hearing of the appeal in default dismissed.



T.A. - 18/12

Order No. 11, dated – 07.04.2014.


Advocates.

Today is fixed for hearing of the appeal along with Title Appeal 17/12.

Appellant filed a petition praying for taking of the records of the P. Board

and petitions under order 6 rule 17 read with section 151 of CPC in both Title

Appeal 17/12 and Title Appeal 18/12.

Vide the petition the appellant has prayed for amendment of the written

statement in the manner as stated in the petition.

Heard Ld. Advocates of both sides over the petitions.

Ld. Advocate for the resp9ndent raised objection against the petition

under order 6 rule 17 read with section 151 of CPC.

Considered submission of Ld. Advocates of both sides. Perused the

petition and the case record.

I am of the opinion that vide the said amendment the appellant is trying

to fill up the lacuna as nowhere from the said petition, I finds that the

amendment as sought for by the appellant is a subsequent event.

Considering the same the petition under order 6 rule 17 read with

section 151 of CPC in my opinion should not be allowed.

Hence, it is

O R D E R E D

that the petition under order 6 rule 17 read with section 151 of CPC is rejected


Fix ….......................... for hearing of the appeal in default dismissed.



T.A. - 06/08

Order No. 42, dated – 09.04.2014.

Both appellant and defendants files hazira through their respective

Advocates.

Today is fixed for hearing of the petition regarding marking of

documents as exhibits.

Heard Ld. Advocates of both sides over the petition.

Le. Advocate for the respondent as such raised no objection except for

saying that the municipal tax payment receipts cannot be marked as exhibits

as those are not public documents.

Considered submission of Ld. Advocates of both sides. The prayer for

marking of the documents as exhibits is considered and allowed.

Perused the documents. The the municipal tax receipts, 51 sheets, be

marked 'X' for identification. Certified copy of municipal assessment registered

be marked Ý' for identification. Certified copy of order sheet of return case no.

13/72 be marked exhibit – 8. Certified copy of decree in Title Suit 172/1918 be

marked exhibit – 9. Certified copy of proceedings in return case no. 13/1972 is

marked exhibit -

Plaintiff also files a petition praying for time for taking steps.

Heard. Considered. The prayer is allowed.

Fix …........................... for taking necessary steps by plaintiff.



T.A. - 21/11

Order No. 17, dated – 07.07.2014.

Both plaintiff and defendant files hazira through their respective

Advocates.

Today is fixed for hearing of the petition under order 6 rule 17 and order

41 rule 27 of CPC which was filed by the appellant on 29.04.2014, the

appellant prayed for adjournment in respect of hearing of the petition under

order 41 rule 27 of CPC. However hearing upon the petition under order 6 rule

17 of CPC was made by the Ld. Advocate for the appellant.

Respondent filed written objection against the petition under order 6 rule

17 of CPC and also against the petition under order 41 rule 27 of CPC.

Heard Ld. Advocates of both sides over the petition under order 6 rule

17 of CPC.

Perused the petition under order 6 rule 17 of CPC and also the written

objection as filed by the respondent.

On perusal of the petition under order 6 rule 17 of CPC, I find that not

only the appellant had prayed for amendment in certain paragraphs of the

plaint of Title Suit 17/05 out of which this appeal arose but also in the schedule

of the plaint. On going through the said petition and also through the plaint of

Title Suit 17/05, I find that the amendment as sought for by the plaintiff brings

in new facts. Further as already decree has been passed upon the schedule

as has been originally mentioned in the plaint of Title Suit 17/05, I am of the

opinion that the amendment as sought for by the appellant should not be

allowed.

Hence, it is

O R D E R E D


Fix ….......................... for hearing on the petition under order 41 rule 27

of CPC.

This case will be tried analogus with Title Appeal 20/11.



T.A. - 20/11

Order No. 25, dated – 07.07.2014.


Advocates.

Though date has been fixed for hearing of two petitions but I do not find

any petition as stated has been filed in this appeal. Though the two petitions as

referred to has been filed in Title Appeal 21/11 with which this appeal is being

heard analogus.

To date i.e. …............................

This appeal will be heard analogus with Title Appeal 21/11.



T.A. - 23/11

Order No. 19, dated – 17.07.2014.

Both parties files hazira through their respective Advocates.


Heard Ld. Advocates of both sides over the petition. Perused the

petition.

On perusal of the petition I find that appellant had filed the petition under

order 41 rule 27 read with section 151 of CPC for marking the documents

which were marked as 'X' for identification and 'Y' for identification by the Ld.

Trial Court as exhibits, saying that the said documents were not marked as

exhibits due to over sight of the Ld. Trial Court.

Ld. Advocates appearing on the behalf of the respondents submitted

that the submission as made by the appellant that the documents which the

appellant wants to get marked as exhibits due to over sight was not marked as

exhibits, but marked as 'X' & 'Y' for identification respectively.

Ld. Advocates for the respondents further submitted that when the said

documents were marked 'X' & 'Y' for identification during trial it was within the

knowledge of the appellant that the said documents were not marked as

exhibits. That the appellant had to press before the Ld. Trial court for getting

those documents marked as exhibits. That it was not due to over sight of the

Ld. Trial Court that the said documents were not marked as exhibits but after

due consideration the Ld. Trial Court marked this documents as 'X' & 'Y' for

identification.

Ld. Advocates for the respondents also submitted that it was only to

delay the disposal of the appeal the petition under order 41 rule 27 had been

filed. They also submitted that the tenancy is admitted as the appellants did

not make any attempt to get the documents which were marked 'X' & 'Y' for

identification as exhibits during trial the same cannot be marked as exhibits

during appeal state, because during appeal no lacuna can be allowed to be

filled.

Contd.......

T.A. - 23/11

Considered submission of Ld. Advocates of both sides and also gone

through the documents which were marked 'X' & 'Y' for identification. I find

that the Ld. Trial Court had marked four xerox copy of rent receipts as 'X'

series for identification. I find that the documents which were marked 'X' for

identification by the Ld. Trial Court are xerox copies of same rent receipts.

Since the rent receipts are not public documents. I find that the Ld. Trial court

had rightly refused to mark the said documents as exhibits and marked the

same as 'X' for identification. I find that the documents which the Ld. Trial

Court had marked 'Y' for identification is cross-examination of the defendant of

Title Suit 125/06. I find that Le. Trial Court had rightly marked the said

document as 'Y' for identification because to consider the same the plaintiff

had to file also the copy of the affidavit-in-chief of DW-1 in Title Suit 125/06 and

also the copies of plaint and written statement of Title Suit 125/06. Further I

feel that when the appellant had not pressed the same before the trial court for

getting those documents marked as exhibits well within his knowledge that the

said documents were not marked as exhibits and he had argued the Title Suit

73/08 out of which this appeal arose without pressing for getting the

documents marked 'X' & 'Y' for identification as exhibits, I feel that the petition

under order 41 rule 27 of CPC should not be allowed.

Hence, it is

O R D E R E D


Fix …......................... for hearing of the appeal.

D.C.F of Rs. 10/- by respondent nos. 3(a)i, 3(b)ii & 3(d).



T.A. - 30/10

Order No. 22, dated – 17.07.2014.

Both sides files hazira through their respective Advocates.



I find that the appellant had filed the petition under order 26 rule 9 read

with section 107 and section 151 of CPC saying that the plaintiff / respondent

had filed Title Suit 30/05 out of which this appeal arose for declaration of title

over a 3 feet wide passage on the eastern side of his property and had

claimed title over the passage by virtue of two deeds, to which hand sketch

map with specific measurement is annexed. That the plaintiff had also

presented a sketch map in his plaint and sought 3 feet wide passage that on

the southern boundary of the plaintiff's property in the deeds by which plaintiff

claimed title are 25 feet and 10 feet 6 inches. That for proper adjudication and

elucidating the matter in dispute it was necessary to appoint a survey passed

commissioner for local investigation, on the points mentioned in the petition.

I find that the respondent had filed written statement stating that the

petition as filed by the appellant was misconceived and was liable to be

rejected. That the appellants should have filed the petition for local

investigation in the lower court but had knowingly not taking any steps for local

investigation. Instead of applied for holding local investigation. That the hand

sketch map annexed with the plaint and written statement was not drawn to

scale, so the same was not admissible in evidence and cannot be compared

and relied on for holding local investigation as has been prayed by the

appellant.

Ld. Advocate for the appellant argued that as the dispute between the

parties is over a 3 feet passage and as without local investigation it cannot be

found out property as to on whose property the 3 feet passage actually feel, so

it was necessary for local investigation otherwise the dispute between the

parties cannot be adjudicated property.

Referring to AIR 1975 Alahabad submitted that if the lower court finds

that clear demarcation of land was necessary for giving the finding the court

who allow the local investigation petition and issuance the commission for local

investigation will not necessiate a recourse to the provisions of taking

additional evidence.

Contd......

T.A. - 30/10

Further referring to AIR 2004 N.O.C 491 (Andhrapradesh) Ld. Advocate

submitted that if facts reflected from the records proof need to appoint

Advocate Commissioner then there is no bar on the appellate court to appoint

an Advocate Commissioner.

Ld. Advocate for the respondent argued that the appellant had

knowingly not prayed for local investigation in the lower court instead they had

prayed for local investigation which was allowed by the Ld. Trial Court. He

further submitted that when the matter of local investigation was not raised

during trial of the suit in appeal stage, no agitation can be made for local

investigation.

Ld. Advocate further submitted that since the sketch maps upon which

the appellant is asking to relay on for holding local investigation were not

drawn to scale as the same were not drawn to scale so the sketch maps upon

which the appellant asking to rely on cannot be allowed.

He further submitted that the appellant had asked to rely upon this

sketch maps as has been mentioned in the deeds to the plaintiff and also upon

plaint. If it is found that the disputed 3 feet passage did not fall in the

respondents property it cannot be said that whether disputed passage did not

fall within the plaintiff's property it call upon the defendant's property because

the appellant had never prayed for relying upon the maps stated in their deeds

or as shown in their written statement.

Since the defendants have never asked for relying upon their sketch

maps shown in the written statement and his deeds no local investigation can

be allowed upon relying upon the sketch map as mentioned in the deed of the

plaintiff and in the plaint. He further submitted that when the appellant had

stated in his written statement that the disputed passage is a common

passage of the plaintiffs and the defendants he should have agitated the point

of local investigation at the trial stage. The appellant never made any petition

for holding local investigation during trial stage but had prayed for local

inspection which was allowed by the court. When the appellant never made

any petition for holding local investigation during trial state he cannot agitate

for holding local investigation during appeal stage.

Ld. Advocate further submitted when an issue is not pressed in trial

court the same cannot be agitated in appeal. In support of his submission the

Contd......

T.A. - 30/10

respondent referred to 2012 (I) I.C.C (Calcutta) page 649 and AIR 1968

Calcutta 550.

Considered submission of Ld. Advocates of both sides. Again through

the petition under order 26 rule 9 of CPC as filed by the appellant and also the

written objection filed by the respondent against said petition also gone

through the case record, I find that the Title Suit over which this appeal has

been filed was for declaration and injunction over a 3 feet passage. The

appellant / defendant, I find had by filing written statement stated that the said

passage was a common passage. No where in the written statement as filed

by the appellant / defendant in title suit 30/05 the defendant / respondent say

that for proper adjudication of the suit local inspection was necessary.

I find that the appellant / respondent had made an application for local

inspection which was allowed by the court and the local inspection was done

by the points upon which the defendant appellant had prayed for local

inspection and also upon the point on which local inspection was asked by the

plaintiff. I find that the local inspection was done in presence of both parties.

The defendant, I find has accepted the report as filed by the Advocate

Commissioner, who hold the local inspection. As the appellant / respondent

had never raised the issue of local investigation during trial stage and also not

made any prayer for holding local investigation before the trial court instead

had made an application for local inspection, I am of the opinion that the

prayer of the appellant for local inspection cannot be allowed at the appellate

stage, because in my opinion said would result in collection of evidence and

also filling up the lacuna.

Hence, it is

O R D E R E D

that the petition under order 26 rule 9 read with section 107 and section 151 of

CPC is rejected on contest, without cost.

Fix …........................ for hearing of the appeal.



T.A. - 06/09

Order No. 36, dated – 18.07.2014.

Hazira is filed on behalf of the plaintiff and the respondent no. 2 through

their respective Advocates.

Today is fixed for hearing of the substitution petition filed by the

appellant on 20th March 2014.

Heard Ld. Advocate over the petition. Perused.

I find that vide the petition the appellant has sought for expunging the

name of respondent no. 2 who had expired on 28.02.2014 and substituting his

heirs in his place. I find that the petition for substitution is made within time.

Accordingly is it

O R D E R E D

that the petition for substitution is allowed.

Let the name of the respondent no. 2 be expunged from the memo-of-

appeal and the name of his heirs be substituted in his place as respondent

nos. 2(a) to 2(d).


Fix …......................... for steps upon substituted respondent nos. 2(a) to

2(d).



T.A. - 14/07

Order No. 42, dated – 19.07.2014.


Advocates.


Respondent files written objection against the petition.

`Heard Ld. Advocates of both sides over the petition under order 22 rule

4 of CPC.

I find that the appellant had filed the petition under order 22 rule 4 of

CPC for substituting the heirs of respondent no. 2 Banamali Nandi who died

leaving the heirs as mentioned in the petition. From the petition I find that out

of the three heirs left by Sri Banamali Nandi, one Champa Nandi is already on

record. So the appellant had prayed for substitution all the other two heirs of

Banamali Nandi by expunging his name.

I find that the respondent had filed written objection saying that

Banamali Nandi had died leaving behind one son Sukumar and four daughters

Champa Nandi, Shipra Nandi (Kundu) Sampa Nandi and Reba Malick. That as

the appellant had filed the substitution petition without impleading all the heirs

of deceased Banamali Nandi, so the respondent substituted that the

substitution petition could not be allowed.

It has also been contended by the respondent that it was informed

appellant on 19.09.2011 as to the persons who Banamali Nandi had left

behind.

On going through the case record I find that the respondent had on

19.09.2011 had in answer to the interrogatories filed by the appellant had

stated that Banamali Nandi had died leaving behind one son and four

daughters. In that case it cannot be said that the appellant does not have any

knowledge as to who are the heirs of the respondent Banamali Nandi who are

to be substituted. As the appellant had filed the petition under order 22 rule 4

Contd......

T.A. - 14/07

without bringing all the heirs of deceased respondent no. 2 Banamali Nandi, I

feel that the petition should not be allowed.

Accordingly the petition filed by the appellant under order 22 rule 4 read

with section 151 of CPC is rejected on contest, without cost.

The respondent is directed to take fresh steps regarding substitution of

the heirs of respondent no. 2 without fail by the next date.

To …............................ for taking fresh steps by the appellant upon

deceased defendant no. 2.



T.A. - 44/12

Order No. 10, dated – 24.07.2014.

Appellant is present by filing hazira.

Today is fixed for appeal hearing.

Ld. Advocate for the appellant submitted that on 09.12.2013 a petition

was filed along with the summons to witness with a prayer to issue the same

on the ground stated in the petition. That as the petition is still pending and so

the appeal hearing cannot be done today.

He further prayed before the court for allowing the petition on the

ground that unless the said petition is allowed it would not be possible to do

the hearing of the appeal.

Considered submission of Ld. Advocate.

The petition as filed by the appellant on 09.12.2013 is allowed.

Let the summons which had been filed along with the petition be issued.

Fix …......................... for hearing of the appeal (evidence).



T.A. - 11/11

Order No. 20, dated – 31.07.2014.


Advocates.

Today is fixed for hearing of the substitution petition.


I find that vide the petition one Atanu Kr. Ghosh has prayed for adding

him as respondent no. 2(B) as he is one of the legal heirs of deceased

respondent no. 2 Samir Kr. Ghosh.

Ld. Advocate for the appellant does not raise any objection.

Considering the fact that the said person is a heir of the deceased

respondent no. 2 and he wants to contest this appeal and as the appellant

does not have any objection against the said petition the petition is allowed.

Let said Atanu Kr. Ghosh be added as respondent no. 2(B). S.R upon

respondent o. 2(a) not yet received. Appellant is directed to take fresh steps

upon respondent no. 2(a).

Fix ….......................... for S.R upon respondent no. 2(a). Fresh steps in

the mean time and DCF of Rs. 10/- by appellant.



T.A. - 14/12

Order No. 17, dated – 29.11.2014.

Respondent files hazira through Ld. Advocate.

A petition is filed by the appellant under order 22 rule 3 read with section

151 of CPC, praying for expunging the name of the appellant Krishna Chandra

Bandhapadhyay on the ground that the said appellant expired on 14.09.2014

leaving behind his son Atanu Bandhapadhyay @ Banerjee as his heir and

substituted the name of Atanu Bandhapadhyay in his place.

Ld. Advocate for the respondent submitted that since the petition was

not filed by the heir of Krishna Chandra Bandhapadhyay that is Atanu

Bandhapadhyay but by the appellant no. 2 the same cannot be allowed by the

court.

I do not agree with the said submission of the Ld. Advocate for the

respondent. Further I find that the petition under order 22 rule 3 read with

section 151 of CPC has been made well within time.

Hence, it is

O R D E R E D

that the petition under order 22 rule 3 read with section 151 of CPC is allowed

on contest with cost.

Let the name of appellant Krishna Chandra Bandhapadhyay be

expunged from the memo-of-appeal and the name of his heir Atanu

Bandhapadhyay @ Banerjee be substituted in his place as appellant no. 1(a).


Fix …............................... for hearing of the appeal.



title appeal 29 of 11

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