Calcutta High Court (Appellete Side)
Provakar Hatui vs Sankar Kumar Ghosh on 10 December, 2018
Author: Shampa Sarkar
Bench: Shampa Sarkar
1
10.12.2018 S.A.T. 403 of 2018
srm & dc with
CAN 7680 of 2018
Provakar Hatui
versus
Sankar Kumar Ghosh
Mr. Ashish Bagchi,
Ms. Malyashree Maiti ... For the Appellant/Applicant.
Mr. Sudarshan Ghosh,
Mr. Amar Kumar Bhaumik ... For the Respondent.
Being aggrieved by and dissatisfied with the judgement and decree April 28, 2017 passed by the learned Judge, 10th Bench, City Civil Court at Calcutta in Title Appeal No. 65 of 2014 affirming the judgement and decree dated April 23, 2014 passed by the learned 3rd Judge of Presidency Small Causes Court at Calcutta in Ejectment Suit No. 312 of 2008, this appeal has been filed.
This appeal will be heard on the following substantial questions of law :
(i) Whether the learned courts below erred in law in holding that the suit was maintainable when the eviction notice dated July 11, 2007 was issued by the joint receivers, namely, Prabir Kumar Ghosh and Shankar Kumar Ghosh, but the suit was filed by the plaintiff, namely, Shankar Kumar Ghosh alone.2
(ii) Whether the eviction suit filed by the plaintiff in his personal capacity was maintainable in view of the fact that he was appointed as one of the joint receivers in a partition suit relating to part of the selfsame property.
As Mr. Sudarshan Ghosh, learned Advocate has already entered appearance on behalf of the caveator/respondent and copies of the application as also memorandum of appeal have also been supplied by the appellant, the formality regarding service of notice of the same upon the respondent is dispensed with.
The appellant is directed to prepare and file requisite number of informal paper books incorporating all the documents out of court within a period three weeks after reopening of this Court after Christmas Vacation with advance copies of the same upon the learned Advocate for the respondent.
Re : CAN 7680 of 2018 (Stay) This is an application filed by the appellant praying for injunction restraining the respondent from proceeding with the Ejectment Execution Case No.3 of 2015 as also Misc. Case No. 140 of 2015.
Learned Advocate for the respondent submits that the next date has been fixed for delivery of possession with police 3 help on January 4, 2019. It is further submitted by him that despite several opportunities, the defendants did not comply with the directions of the courts below to quit and vacate the premises in question.
In view of the admission of the appeal on the substantial question of law involved and also in view of the fact that unless an order of injunction is passed restraining the plaintiff/decree-holder from continuing with the execution case, the appeal will become infructuous and the appellant will suffer irreparable loss and injury, let there be an order of injunction restraining the plaintiff/decree-holder from proceeding with Ejectment Execution Case No. 3 of 2015 and Misc. Case No. 140 of 2015 till the disposal of the appeal.
The application bearing CAN 7680 of 2018 stands disposed of.
It is, however, made clear that in the event the appellant fails to prepare and file requisite number of informal paper books within the time as specified above, the interim order, as granted above, shall automatically stand cancelled.
Liberty to mention the appeal for hearing after the same becomes ready.
( Debasish Kar Gupta, Chief Justice ) ( Shampa Sarkar, J. )