Calcutta High Court (Appellete Side)
Gopal Das Bagri vs Brij Mohan Benani & Anr on 28 February, 2014
Author: Arindam Sinha
Bench: Arindam Sinha
1
28.02.2014
Srimanta
27
C. O. No. 2310 of 2011
With
CAN 1634 of 2014
Gopal Das Bagri
-versus-
Brij Mohan Benani & Anr.
Mr. Aniruddha Chatterjee,
Mr. Sib Sankar Das,
Mr. Hemanta Kumar Das.
...For the Petitioner.
Mr. Probhat Kumar Singh.
...For the Opposite
Parties.
Pursuant to the order of this Court dated 14th
February, 2014 the petitioner in this revisional application
has taken out CAN 1634 of 2014 praying that in the matter
of revision of Order No. 45 dated 17th June, 2011 passed by
the City Civil Court at Calcutta in Misc. Case No. 3961 of
2007 impugned in this application under Article 227 of the
Constitution of India, it be recorded that the entire
proceedings in the said Misc. Case and all pending
applications stand abated. This application was taken out
by the petitioner on the basis of the record of Order No. 20
dated 5th January, 2009 where the learned Court below had
on the prayer of the petitioner in the Misc. Case, recorded
that the said case stood abated against the deceased
respondent no. 3 therein.
Mr. Probhat Kumar Singh, learned Advocate appearing on behalf of the opposite parties submits that in the circumstances the learned Trial Court ought not to have used the word 'abated' and should have only recorded the death of the deceased respondent no. 3.
Mr. Aniruddha Chatterjee, learned Advocate appearing on behalf of the petitioner submits that there cannot be partial abatement since the prayers, in particular, the main prayer in the Misc. Case cannot be separated and as such the whole case stands abated as against the partial abatement recorded in the said Order No. 20 dated 5th January, 2009.
2Mr. Singh submits that this is a completely new point that has been taken by Mr. Chatterjee's client at this stage. He submits that the case of his client against the deceased respondent no. 3 cannot be answered by the legal representatives of the said deceased or that there were in the circumstances, no legal representatives. Mr. Chatterjee, however, disputes such submission saying legal representatives of the deceased respondent no. 3 in the said Misc. Case were available.
The fact is that this contention arises from the record in Order No. 20 dated 5th January, 2009 made by the learned Court below. In the fitness of things the controversy regarding whether or not the entire Misc. Case abated as a whole and its consequence on the grant of the order of injunction needs to be decided by the learned Court below. In the circumstances, the question raised in the CAN application is directed to be raised before the learned Trial Court while the challenge to the order of injunction granted is kept pended till decision on the question of abatement.
The learned Trial Court is requested to deal with and dispose of the said question at its earliest convenience keeping in mind that the challenge to the order of injunction is kept pended in revision before this Court to be adjudicated upon the result of the question to be decided by the said Court. This revisional application is adjourned for a period of eight weeks.
Let this revisional application appear in the list on 25th April, 2014.
It is made clear that this Court has not gone into the question raised nor the challenge made to the order impugned in the matter of making this order.
(ARINDAM SINHA, J.)