Calcutta High Court (Appellete Side)
Sri Jagadamba Singh vs Smt. Kalawati Devi Tiwari & Anr on 16 March, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
1
IN THE HIGH COURT AT CALCUTTA
16-03-2017Civil Revisional Jurisdiction Subrata . C.O.No.4292 of 2016 Sri Jagadamba Singh
-vs-
Smt. Kalawati Devi Tiwari & Anr.
Mr. Probal Mukherjee Mr. Malay Dhar Mr. Biswajit Sarkar ...for the petitioner Mr. Aniruddha Chatterjee Mr. Kushal Chatterjee...for the opposite party no.2 The revisional application under Article 227 of the Constitution is directed against an order dated August 12, 2016 passed by the learned Civil Judge (Senior Division), 1st Court at Howrah in Title Suit No.584 of 2015 (Kalawati Devi & Anr. v. Jagdamba Singh) by which an application dated May 25, 2016 filed by the petitioner-sole defendant proposing to hold that the suit may be held as hit by section 11 read with Order 2 Rule 2 CPC or to pass necessary order.
Heard Mr Mukherjee, learned senior advocate, assisted by Mr Dhar and Mr Sarkar appearing for the petitioner, and Mr Chatterjee, learned advocate representing the second opposite party-plaintiff. Perused the order impugned from which it appears that learned trial Judge has taken unnecessary, strain in passing one lengthy order in rejecting the prayer under section 11 CPC. There cannot be any doubt that the question relevant to the impugned application, if raised, is to be adjudicated which 2 is a mixed question of law and fact. Therefore, by simply making addition of issue - 'whether the suit filed by the plaintiff of Title Suit No.584 of 2015 pending before the learned Civil Judge (Senior Division), 1st Court at Howrah is barred by the principle of res judicata' - would have been suffice to dispose of the application where it was also urged to pass necessary order as learned court would deem fit and proper.
Therefore, I do not find any reason to go further to adjudge propriety of the impugned order but to set aside the same with direction to learned trial Judge to record the issue of res judicata as indicated above and adjudicate the same along with other issues as have been framed, or, are supposed to be framed relevant to the pleadings, or, as would be decided by learned court below to be so framed and not separtely. Thus, setting aside the order impugned dated August 12, 2016 this revisional application stands disposed of.
Stay order, if any, stands vacated with a direction to the learned court below to proceed with the suit from the stage where it was stopped.
The department is directed to communicate this order to the learned trial court for information and necessary action forthwith.
Certified photostat copy of this order, if applied for, shall be given to the parties.
(Mir Dara Sheko, J) 3