Tosiba@Tashiba Mondal v. Khagen Mondal And ORS
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] *** CO/1/2023 Tosiba @ Tashiba Mondal Vs.
Khagen Mondal and others Mr. Debnath Ganguly, Mr.Supriyo Dutta [though virtual mode] Mr. Aranya Saha Mr. Pardeshia Munda ... for the petitioner Mr. A.K.Mandal ... for the respondent nos.1 to 4 Mrs. Aishwarya Pratihar Ganguly .. for the opposite parties (through virtual mode) nos.5 to 13 January 19, 2023 [SR] Item No.5 Mr. Debnath Ganguly, learned advocate appearing in virtual mode for the petitioner, submits that the counter claim already filed by the defendants/petitioner, could not be adjudicated by the court below, while dismissing the suit for default.
Mr. Ganguly submits that the counter claim is something independent one, and that has to be adjudicated independently by the court below, even after dismissal of the suit. Since the court below has not gone into the counter claim, that counter claim needs to be adjudicated irrespective of the dismissal of the suit for default, Mr. Ganguly argues. Mr. A.K.Mandal, learned advocate representing the respondent nos.1 to 4, submits that, after the suit has suffered dismissal for default, there has already been
application filed praying for restoration of the suit, which has been registered as Misc.Judl. Case No.13 of 2022, and now pending before the learned Joint Civil Judge Senior Division, South Andaman, Port Blair.
It is thus submitted by Mr. A.K. Mandal that step has already been taken for restoration, though appropriate order has not yet been passed. But, in his honest approach, he has not raised his voice against the proposition of law, as already referred by Mr.
Debnath Ganguly, for independent adjudication of his counter claim, filed in written statement. Having considered the submissions of both sides, it appears that dismissal of the suit for default has led to the non-consideration of the counter claim, filed by the defendants.
No more further elaboration is necessary, as the law is quite settled that counter claim has to be independently adjudicated by the court below, irrespective of the dismissal of the suit.
When restoration application has already been filed, the same may be disposed of with an utmost expedition, in accordance with law, providing an opportunity of hearing to both parties, without granting unnecessary adjournment. It is however clarified that counter claim already filed, the written statement needs adjudication independently by court below, irrespective of the dismissal of the suit and/or restoration, if any, followed subsequently, as per order of the court below.
As it is submitted Mr. A.K.Mandal, learned advocate representing the respondent nos.1 to 4, that a copy of the counter claim may once again be handed over to the conducting learned advocate representing the plaintiff, in the court below, the same may be supplied to other sides. Independent adjudication of the counter claim as such may be reached within 15 weeks from the date of communication of this order to the Court below, providing an opportunity of hearing to both the parties, in the event of restoration application, already filed, having failed in accordance with law.
CO/1/2023 stands disposed of.
All parties shall act on the server copy of this order duly downloaded from the official website of this Court, pending application of certified copy upon compliance of formalities.
( Subhasis Dasgupta, J. )