M/S Sea Shell And ANR v. Shri.Pradeep Halder And ORS.

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** CO/44/2024 M/S Sea Shell and Another Vs.

Shri Pradeep Halder and Others Mr. Gopala Binnu Kumar ... for the petitioners Mr. Rakesh Kumar ... for the respondent nos. 1, 4, 5 & 7.

Ms. Babita Devi ... for the respondent nos. 11 to 14, 16 & 17 March 11, 2025 [SR] Item No.5 1.

Learned counsel for the petitioners, in assailing the order passed by the First Appellate Court, has submitted that by a dint of a deed of sale appearing at page 82 of the petition, the petitioners have become the absolute owner of the property and that property cannot form part of the partition suit. 2.

It is submitted that the mother of the plaintiffs sold the property in favour of the present petitioners after obtaining necessary permission from the plaintiffs. However, this fact has been disputed by the learned counsel appearing for parties. 3.

It has been fairly admitted that, before the appellate court, no application was filed for additional evidence under Order 41 Rule 27 of Code of Civil Procedure although the sale deed appearing at page 82 was filed by a firisti before the Appellate Court.

4.

This type of practice of document being filed by a firisti before the appellate court without complying with the legal provision under Order 41 Rule 27 of the CPC cannot be appreciated. In absence of the said document being produced

before the Trial Court, it would be unfair to set aside the order of the trial court as the trial court never had the opportunity to consider such document.

5.

In the revisional jurisdiction, I am not going to entertain the argument that the said document is relevant, hence the order of the trial court is required to be set aside. There is a provision in the Code Civil Procedure under Order 39 Rule 4 which permits the parties at any stage of proceedings to apply for vacating the interim order on the ground stated therein. Moreover, written statements have been filed and the said document is a contentious issue. On such consideration I am not inclined to allow this application. However, this order shall not prevent the petitioner to take appropriate steps in accordance with law based on the said document. The relevancy of the said document has not been gone into and it is for the trial Court to decide the relevancy of the said documents in the event any application is filed for recalling or modification of the order.

6.

The pendency of the suit shall not prevent the parties to approach the mediation center of the Circuit Bench of Calcutta High Court at Port Blair for amicable settlement of their disputes.

7.

With the above observations, the application is disposed of.

( Soumen Sen, J. )