Calcutta High Court (Appellete Side)
Md. Abbas & Ors vs Sri Nripendra Nath Roy & Ors on 11 May, 2018
1
Sl. May 11,
12. 2018 High Court at Calcutta
Revisional Jurisdiction
C.O. 974 of 2018
Md. Abbas & ors.
Versus
Sri Nripendra Nath Roy & ors.
Mr. Satyajit Talukdar,
...for the petitioners.
Mr. Partha Pratim Roy,
Mr. Debasish Mukhopadhyay,
Mr. Anirban Banerjee,
Ms. Jeenia Rudra,
...for the opposite parties/caveators.
The present revisional application has been preferred by the
plaintiffs in a suit for declaration and injunction in respect of an immovable
property.
On the prayer of the plaintiffs, an order of injunction was
granted by the trial court restraining the defendants/opposite parties from
entering the suit property and from disturbing the peaceful possession of the
plaintiffs in and over the suit land till disposal of the suit.
The opposite parties initially preferred a revisional application
against such order of injunction. Subsequently, such revisional application was
dismissed by a co-ordinate bench of this court as withdrawn by the present
opposite parties. Thereafter the present opposite parties preferred Misc. Appeal
No. 71 of 2017 against the order of injunction passed by the trial court.
The respondents in such appeal, being the present petitioners,
raised a point of maintainability of such appeal on the ground of limitation.
The opposite parties, who were the appellants therein, relied on the provisions of Sections 12 and 14 of the Limitation Act to argue that the appeal was not time barred and, as such, there was no requirement to file any application for condonation of delay.
On a date fixed for hearing of such maintainability point along with the appeal itself, the District Judge at Jalpaiguri allowed the Misc. Appeal itself on contest.
Being thus aggrieved, the present revision has been preferred.
2It is submitted on behalf of the petitioners that although the appellate court below dealt with the question of limitation only throughout the judgment and only such question was canvassed, all on a sudden in one paragraph at the end of the judgment, the appellate court came to the abrupt finding that the defendants were not given even a single day's opportunity for filing written objection and documents to counter the case of the plaintiffs in the injunction matter. Consequently, the appellate court allowed the Misc. Appeal and set aside the order of injunction passed by the trial court. It is submitted that such point ought not to have been decided without hearing the petitioners at length thereon. It is further submitted that, in view of no liberty to file an appeal having been sought for by the opposite parties while withdrawing the previous revisional application, the subsequent miscellaneous appeal filed by them ought to have been held to be not maintainable.
It was also submitted on behalf of the petitioners that opportunity had, in fact, been given to the present petitioners to file their written objection to the injunction application before the trial court, which will be evident from the recording in the order of the trial court as to the written objection having actually been filed on the date of hearing.
The aforesaid contentions are squarely denied on behalf of the opposite parties. It is submitted on behalf of the opposite parties that, although the opposite parties had to file written objection to the injunction application under compulsion, no opportunity worth the name was afforded to them to file the written objection. It is further submitted that the suit and the injunction application were filed only about a week prior to the date on which the injunction application was disposed of. On the date fixed for appearance of the present opposite parties, the trial court compelled the present opposite parties to file their written objection. Accordingly, such objection had to be filed within a span of only two hours in extreme haste of the opposite parties. As such, most of the relevant points which would otherwise have been agitated by the present opposite parties could not be agitated in the court below at all.
On the question of limitation, it is submitted on behalf of the opposite parties that the present case was squarely covered by the provisions of 3 Sections 12 and 14 of the Limitation Act, since a vacation of the Court below had intervened between withdrawal of the previous revisional application and filing of the Misc. Appeal and in view of revisional court having no jurisdiction to adjudicate the appeal.
Upon hearing the learned advocates appearing for the parties and perusal of the materials on record, there appears to be substance in the contention of the opposite parties as to Sections 12 and 14 of the Limitation Act being applicable to Misc. Appeal No. 71 of 2017.
As such, there cannot be any reason to interfere with the finding of the appellant court that the miscellaneous appeal was not barred by limitation. However, the other part of the appellate court's judgment, by which the entire appeal was allowed on the cryptic observation that not even a single day was given to the defendants to file their objection and documents in respect of the injunction matter, cannot be supported. There does not appear to be any argument by the parties on such point. Moreover, the appellate court did not advert to the actual dates when the matter was fixed by the trial court and what actually transpired in the trial court before coming to the abrupt finding that no opportunity was given to the defendants to file their written objection.
Since it is trite that justice should not only be done but should also be seen to be done, whatever might have transpired actually in the mind of the appellate court ought to have been reflected in the appellate court's judgment before allowing the appeal in its entirety.
As such, this court does not have any option but to interfere with the impugned order.
Accordingly, the revisional application is disposed of by setting aside the judgment and order dated March 16, 2018 passed by the District Judge at Jalpaiguri in Misc. Appeal No. 71 of 2017 and by sending the matter back to the said court for hearing the parties afresh on the merits of the appeal, including on the question as to whether sufficient opportunity was given to the defendants to file their written objection to the injunction application. Upon giving appropriate hearing to both sides, the appellate court shall decide the appeal, being Misc. Appeal No. 71 of 2017, afresh. This exercise, however, should be completed latest by June 8, 2018.
It is made clear that the findings in the impugned order, as to the miscellaneous appeal being maintainable and not time barred, will remain undisturbed and be deemed to have attained finality and the appellate court 4 will not reopen such question and only advert to the merits of the appeal otherwise, including the question of whether sufficient opportunity was given to the defendants to file their written objection to the injunction application.
There will be no order as to costs.
( Sabyasachi Bhattacharyya, J. ) Dns