S. Ramanathan v. Saraswati

IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ...

CO/12/2022 S. Ramanathan ... Petitioner Vs.

Saraswati ... Respondent Mr. Gopala Binnu Kumar ... for the petitioner Mrs. Anjili Nag ... for the respondent November 16, 2022 [SR] Item No.3 Party/parties is/are represented in the order of their name/names as printed above in the cause title. Under challenge in this application under Article 227 of the Constitution of India is the Order of the learned Additional District Judge, North and Middle Andaman, Mayabunder, being the First Appellate Court.

By the said impugned Order, the learned First Appellate Court was pleased to dismiss the Misc.Appeal No.3 of 2018 filed by the present petitioner and accordingly upheld the Order of abatement of the principal O.S.No.2 of 1995 as passed by the learned Civil Court (Senior Division), South Andaman in Misc.Judl.Case No.21 of 2016. Mr.Gopala Binnu Kumar, Learned Counsel appearing for the present petitioner, submits that the petitioner is the plaintiff in O.S.No.2 of 1995 filed before the learned Civil Court (Senior Division), South Andaman for specific performance of contract.

It is submitted that in view of dismissal of Misc.Appeal No.3 of 2018 challenging the Order of abatement of O.S.No.2 of 1995, the petitioner stands to be permanently non-suited.

It is also submitted that the petitioner holds a document to show that the property in issue is covered by a Sale Agreement and, stands the prospect of foregoing his valuable right to claim the property by way of adjudication of O.S.No.2 of 1995. Accordingly, Mr. Kumar points out that the Order under appeal be set aside and O.S.No.2 of 1995 be restored to board.

Per contra, Ms. Anjili Nag, Learned Counsel appearing for the respondent to this application, draws the attention of this Court to the Order dated 4th February, 2002 of the learned Trial Court in O.S.No.2 of 1995. It is submitted that O.S.No.2 of 1995 was decreed ex parte and the legal heirs of the deceased defendant applied for restoration of the suit. The restoration application was allowed by the learned Trial Court.

It is pointed out that from the Order dated 7th November, 2012 passed by the learned Trial Court in O.S.No.2 of 1995, it would transpire that the petitioner received all original documents.

It is submitted that the legal heirs of the deceased defendant in O.S.No.2 of 1995 filed a suit for declaration of title, recovery of possession, recovery of arrear rents with interest pendente-lite against the petitioner in Title Suit No.23 of 1997 in respect of the self-same property in issue. The said suit has been decreed in favour of the respondent by the learned Civil Court (Senior Division), Mayabunder. The decree has been affirmed right upto the Second Appellate stage.

Therefore, Ms. Nag submits that the petitioners are fully aware of the fact that the legal heirs of the deceased defendant in O.S.No.2 of 1995 have been contesting the proceedings in O.S.No. 2 of 1995 as well as being the plaintiffs in Title suit No.23 of 1997 (supra). Knowledge of such fact was available to the present petitioner as would be evident from the Order dated 4th February, 2002 and 7th

November, 2012. The petitioner cannot be allowed to pray for setting aside the abatement after a delay of more than ten years.

Having heard the parties and closely considering the materials placed, this Court is of the view that the Order impugned of the learned First Appellate Court does not suffer from any infirmity and takes sound judicial notice of the facts enumerated above. Accordingly, no interference is called for by this Court.

CO/12/2022 stands thus dismissed.

All parties to act on a server copy of this order downloaded from the website of the Hon'ble High Court. Urgent Xerox certified copy of this order be supplied to the Learned Counsel appearing for the respective parties upon compliance of usual formalities.

( Subrata Talukdar, J. )