Calcutta High Court (Appellete Side)
Prabhakar Dutta vs Sankar Dutta And Others on 13 November, 2017
1 S/L. 17.
November 13, 2017.
MNS.
C. O. No. 2718 of 2017 Prabhakar Dutta Vs. Sankar Dutta and others Mr. Sanjib Kumar Mukhopadhyay ...for the petitioner.
Mr. Biswaranjan Bhakat ...for the opposite party nos. 1 to 3.
This revisional application is at the instance of a transposed defendant in a suit for partition. Originally it is the present petitioner who filed a suit for partition, in which a preliminary decree was passed. An appeal was carried against the said preliminary decree, upon which the same was affirmed by the appellate court. A second appeal was preferred thereafter, which culminated in dismissal, thereby sustaining the preliminary decree.
Thereafter, staking claim on the basis of a gift deed executed by the present petitioner in favour of the present opposite party nos. 1 to 3, the said opposite parties took out an application for being added to the said suit as plaintiffs. Such application was allowed. Subsequently, the opposite party nos. 1 to 3 made an application for transposition of the present petitioner from the category of plaintiff to defendants.
Although the application for transposition was allowed on February 13, 2015, on which date the right of the transposed defendant (present petitioner) to file a written statement may be deemed to have accrued, the said defendant waited long thereafter to file such written statement. Only upon the suit being fixed for ex parte hearing did the defendant/petitioner file 2 a cryptic application on September 15, 2016 giving an one-line explanation of illness for the huge delay of more than 300 days in filing the written statement and also prayed for taking off the suit from the ex parte board.
By virtue of the order impugned herein dated April 7, 2017, such application for acceptance of written statement and taking off from ex parte board has been rejected.
Upon hearing the parties and going through the records it is evident that this is a peculiar circumstance where the petitioner, despite being a defendant in the suit, is not entitled to take a stand contrary to the plaint since the present petitioner himself was the architect of the said plaint. The plaint, as it stands today, does not contain any amendment from the original pleading of the present petitioner while he stood in the category of the plaintiff.
Even if the present petitioner could be said to have a right to file a written statement, the delay of more than 300 days in filing his written statement has not been explained at all by the petitioner in the application which was rejected by the impugned order.
This apart, the ratio of the learned trial Judge in rejecting the said application, in so far as the same dealt with the propriety of the transposed defendant to make out a new case at the stage of the final decree, could not said to be flawed.
As such, this Court does not find any reason to interfere with the order impugned herein. Accordingly, CO 2718 of 2017 is dismissed on contest without any order as to costs.
(Sabyasachi Bhattacharyya, J.) 3