Calcutta High Court (Appellete Side)
Smt. Sarmistha Roy Chowdhury And ... vs Baidya Nath Saha on 7 May, 2025
D/L.15.
May 7, 2025.
MNS.
COT 68 of 2025
+
CAN 1 of 2025
+
CAN 2 of 2025
in
SA No. 26 of 2025
+
CAN 1 of 2024
Smt. Sarmistha Roy Chowdhury and another
Vs.
Baidya Nath Saha
Mr. Srijib Chakraborty,
Mr. Subhasish Chakraborty,
Mr. Aditya Mondal,
Mr. Amit Chowdhury,
Ms. Sushmit Kumari Singh
... for the cross-objectors.
Mr. Golam Mastafa,
Mr. T. S. Samanta
...for the appellant.
Re: CAN 1 of 2025 (condonation application)
1. CAN 1 of 2025 is an application for condonation of
delay in preferring the cross-objection.
2. We find from the records that the connected Second
Appeal has already been admitted upon
formulating substantial questions of law.
3. Order XLI Rule 22 of the Code of Civil Procedure
provides that a cross-objection has to be filed
within thirty days from the notice of appeal. In the
present case, no notice of hearing of the appeal
has yet been served on the respondents/cross-
objectors and as such, we find that the application 2 for condonation of delay is superfluous and redundant, since there is no delay in preferring the cross-objection.
4. Accordingly, CAN 1 of 2025 is disposed of as not maintainable, without any order as to costs.
Re: COT 68 of 2025
5. We take up the cross-objection for admission under Order XLI Rule 11 of the Code.
6. The cross-objection shall be heard on the following substantial question of law:
Whether the learned First Appellate Judge substantially erred in law in reversing the finding of the learned Trial Judge that the appellant-tenant was a defaulter in payment of rent, only on the ground that by a previous interlocutory order, the learned Trial Judge had condoned the delay in filing the applications under Sections 7(1) and 7(2) of the West Bengal Premises Tenancy Act, 1997, despite the said applications being not maintainable in the eye of law and in spite of the interlocutory order passed by the learned Trial Judge not being binding and conclusive at the stage of final hearing of the suit.
7. The cross-objection shall be heard along with the main appeal.
3
Re: CAN 2 of 2025 (appropriate order)
8. CAN 2 of 2025 is an application substantially for injunction restraining the defendant/appellant from creating any third party interest in respect of the suit property.
9. Upon hearing learned counsel for the parties, we find that a prima facie case for grant such injunction has been made out.
10. Accordingly, CAN 2 of 2025 is allowed, thereby restraining both the parties from changing the nature and character of the suit property and/or from alienating and/or creating any third party interest in respect of the suit property till disposal of the appeal.
11. At this juncture, it is pointed out by learned counsel for the respondent that by our order dated December 16, 2024, we had, inter alia, granted an interim order of stay of all further proceedings in Ejectment Execution Case No. 593 of 2023 pending before the Third Bench, Presidency Small Causes Court, Calcutta, till disposal of the application.
12. However, it is submitted that although a caveat had been lodged by the respondents on July 10, 2024, no copy of the application or notice of the application was served by the appellant on the caveators/respondents prior to moving the same. 4
13. Upon a perusal of the back sheet of the said application, we find that there is a clear endorsement by the Office dated September 10, 2024 that a Caveat, bearing No. 2828 of 2024, was lodged on July 10, 2024 on behalf of the respondents.
14. As such, it is evident that the order of stay was granted without issuance of notice to the Caveators.
15. It was never pointed out at the relevant juncture by the appellant that there was a subsisting Caveat.
16. Thus, the order of stay is a nullity, having been passed in the teeth of the caveat but without service of prior notice on the caveators.
17. In such view of the matter, we vacate the interim order of stay granted vide order dated December 16, 2024, passed in CAN 1 of 2024 in connection with SAT 186 of 2024.
18. The pending application(s) shall next be listed before the learned Single Judge having determination, subject to being mentioned by the parties.
(Uday Kumar, J.) (Sabyasachi Bhattacharyya, J.)