Calcutta High Court (Appellete Side)
Smt. Sushila Mondal & Ors vs Smt. Mayarani Pal & Ors on 5 January, 2012
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE R.V.W. No. 142 of 2011 in C.O. No. 1271 of 2008 Present :
The Hon'ble Mr. Justice Prasenjit Mandal Smt. Sushila Mondal & ors.
Versus Smt. Mayarani Pal & ors.
For the petitioners: Mr. Anit Rakshit.
For the opposite parties: Ms. Nilima Das.
Heard On: 25.11.2011.
Judgement On: January 5, 2012.
Prasenjit Mandal, J.: This application for review is directed against the judgment and order dated June 24, 2011 passed by this Bench in C.O. No.1271 of 2008.
The applicants are the heirs of the original plaintiffs. The plaintiffs filed a suit being Title Suit No.161 of 1990 for declaration of title, permanent injunction and other reliefs against the opposite parties before the learned Civil Judge (Junior Division), Hooghly. The defendants / opposite parties herein are contesting the said suit by filing a written statement 2 denying the material allegations contained in the plaint and they have contended that their predecessor-in-interest got the property by way of permissive possession and the R.S. record had been made in his name as permissive possession. They have their homestead on the plot in suit.
The original plaintiffs filed an application for local investigation and the opposite parties raised an objection against that application. The said application for local investigation was rejected. Subsequently, the petitioners filed an application for review under Order 47 Rule 1 of the C.P.C. and that application was allowed. The opposite parties challenged that order, but their application was rejected and accordingly, a misc. appeal being Misc. Appeal No.71 of 2006 was filed before the learned District Judge and the said misc. appeal was transferred to the Court of the learned Civil Judge (Senior Division), Additional Court, Hooghly. By the impugned order, the learned Judge has allowed the said misc. appeal. Being aggrieved, an application under Article 227 of the Constitution was filed and that application was dismissed by the judgment and order under review.
Upon hearing the learned advocate for the petitioner and on going through the materials on record, I find that there is an apparent mistake in coming to the conclusion for the disposal of the said application under Article 227 to the effect that 3 although, no report was submitted by the learned Commissioner, this Bench proceeded with the matter as if a report was submitted by the learned Commissioner appointed by the learned Trial Judge.
So, there is an apparent error in the order under review and as such, it will not be proper to sustain the said order. The application for review succeeds and it should be allowed thereby setting aside the order dated June 24, 2011.
Accordingly, the application for review succeeds. It is allowed. The judgment and order dated June 24, 2011 passed by this Bench in C.O. No.1271 of 2008 is hereby set aside. The said C.O. No.1271 of 2008 shall be heard in presence of both the sides afresh.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)