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District:- 24 Paraganas (South)
IN THE COURT OF THE LEARNED DISTRICT JUDGE AT ALIPORE
MISC. APPEAL NO – OF 2024
Sankar Seal @ Sil
Son of Late Rakhal Chandra Seal
Residing at 1/38, Arabinda Nagar,
Post Office – Jadavpur University,
Police Station – Jadavpur,
Kolkata – 700 032
District – 24 Paraganas (South)
-------Appellant / Petitioner/ Plaintiff
– Versus –
1. Smt. Indrani Ghosh
Wife of Subrato Ghosh
Daughter of Late Rakhal Chandra Seal
Residing at E 52/1, Ramgarh,
Post Office – Naktala,
Police Station – Patuli,
Kolkata – 700 047,
2. Smt. Anima Seal
Wife of Late Ratan Seal
3. Soma Saha
4. Sampa Das
Both 3 & 4 Daughters of
Late Ratan Seal
All 2 to 4 Residing at
1/38, Arabinda Nagar,
Post Office – Jadavpur University,
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Police Station – Jadavpur,
Kolkata – 700 032
District – 24 Paraganas (South)
5. Gour Seal
Son of Late Rakhal Chandra Seal
Residing at 1/38, Arabinda Nagar,
Post Office – Jadavpur University,
Police Station – Jadavpur,
Kolkata – 700 032
District – 24 Paraganas (South)
6. M/S Ishan Infra Projects Pvt. Ltd,
Represented by its Director
Nemai Dhar, Having its Office at
14/2, Old Chine Bazar Street,
Room No – 418, 4th Floor,
Post Office – Kolkata G.P.O.
Kolkata – 700 001.
-------Respondent/ Opp. Party/ Defendants
MISC. APPEAL VALUED RS. /-
The Appellant above named states as follows:-
1) That the Appellant Petitioner being the Plaintiff filed Title Suit No –
135 of 2014 before the Court of Learned 4th Civil Judge (Jn. Division)
at Alipore with following Prayers:-
a. A Decree declaring that the Plaintiff is the sole Tenant in the Suit
Property as per West Bengal Premises Tenancy Act, 1997 and is
entitled to run the Business of Beauty Saloon solely by himself as
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Tenant without any hindrances / obstruction / interference from
any of the Defendants.
b. A Decree declaring that the Plaintiff being the legal heir of Late
Rakhal Chandra Seal is entitled to get the share in the Property
including right arising out of the Agreement dated 15.02.2012.
c. A Decree for Permanent Injunction restraining the Defendant No
5 (Respondent No – 6 herein) from entering into and or from
executing any Deed of Conveyance solely in the name of
Defendant No – 1 by excluding the name of the Plaintiff.
d. Temporary & Ad-Interim Order of Injunction with other reliefs
2) That in the said Suit Plaintiff made Smt. Indrani Ghosh, Ratan Sil (now
deceased) Gour Sil and Bijoy Sil since deceased all daughter and sons
of late Rakhal Chandra Sil. It is pertinent to mention here that Plaintiff
is also the Son of late Rakhal Chandra Sil.
3) That during the Pendency of the said Suit the Original Defendant No –
2 Ratan Seal died intestate leaving behind his Wife and two Daughters.
Accordingly the Plaintiff took necessary steps to substitute the
deceased Defendant No – 2 by filing required Application for
Substitution which has been duly allowed by the Learned Court and
thereby the Legal heirs of deceased Defendant Ratan Seal were
incorporated in the Cause title of the Plaint as Party Defendant in place
of deceased Defendant No – 2 Ratan Seal.
4) That during Pendency of the said Suit the Original Defendant No – 3
Bijay Seal died on 29.12.2015 but this information was made before the
Learned Court only on 11.01.2017 by filing a Death Report without
serving a Copy thereof to the Advocate of the Plaintiff. Accordingly the
Plaintiff could not take proper steps for substitution of the Deceased
Defendant within the prescribed period of Limitation as a result the
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Title Suit No – 135 of 2014 has been abated upon the Defendant No –
4 namely Bijoy Seal.
5) Accordingly the Plaintiff filed an Application under Order 22 Rule 9 of
[Link] with a prayer for setting aside the Order of abatement by
condonation of unintentional delay on the part of the Plaintiff and also
prayed for allowing the Plaintiff for substitution of the names of the
Legal heirs of the deceased Defendants No – 4.
6) The said Application under 22 Rul3 9 C.P. Code was registered as Misc.
Case no – 13 of 2017 and after a contested hearing the Learned 4th Civil
Judge (Jn. Division) at Alipore vide Order dated 23.02.2024 was
pleased to dismiss the said Misc. Case. No – 13 of 2017.
Being aggrieved by and dissatisfied with the said
Order dated 23. 02. 2024 Passed by the Learned
4th Court of Civil Judge (Junior Division) at
Alipore in Misc. Case No – 13 of 2017 the
Appellant above named beg to prefer the instant
Appeal on the following amongst other,
GROUNDS
1) For that the Order passed by the Ld. Trial Court is bad in law and
contrary to the facts of the case and as such the same is liable to be set
aside.
2) For that the Learned Trial Court failed to apply her mind to the facts
of the Application under Order 22 Rule 9 [Link] on the perspective
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of the settled Principle of law and has come to an erroneous
Conclusion.
3) For that the Learned Trial Court very much relied upon a few
sentences / averments made by the Petitioner in his Cross-
Examination but did not consider the entire evidence and thereby
came to an erroneous conclusion by dismissing the Misc. Case arising
out of Order 22 Rule 9 [Link].
4) From the very reading of impugned Order passed by the Learned
Court below it appears that the Learned Court below considered the
entire dispute from pedantic approach not from judicial approach there
by failed to give substantive justice to the Plaintiff thereby cause
serious unjust to the Plaintiff to non-suit the Appellant /Plaintiff on
the ground of technicalities.
5) For that the Learned Trial Court failed to accept the fact that at the
material point of time the Plaintiff was suffering from acute Jaundice
thereby was not in a position to take appropriate steps in time
accordingly the Order of abatement was passed and considering the
said aspect the Learned Court below ought to have allow the Misc.
Case instead of dismissing the same.
6) For that the Learned Trial Court failed to consider the basic rule under
Provision of Order 22 that those Provisions under Order 22 are not
penal in nature there by the rule of procedure and substantial right of
the Appellant / Party has been defeated by Pedantic Approach by
observing strict adherence to the procedural aspect of law.
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7) For that the Learned Trial Court failed to consider the settled principle
of law that it would be unjust to Non-Suit the Plaintiff on the grounds
of Technicalities rather considering this principle of Law the Learned
Court below ought to have allow the Misc. Case instead of dismissing
the same.
8) For that the Ld. Trial Court should and ought to have held that the
Appellant / Plaintiff be able to prove sufficient cause for condonation
of delay and ought to have allow the Misc. Case instead of dismissing
the same.
9) For that the Learned Court failed to appreciate the documents annexed
with the Application under Order 22 Rule 9 in its proper perspective
and ought to have held that Appellant / Plaintiff be able to prove
sufficient cause for condonation of delay and ought to have allow the
Misc. Case instead of dismissing the same.
10) For that the Ld. Trial Court failed to consider the citation referred by
the Plaintiff / Petitioner in its proper perspective and thereby came to
an erroneous conclusion
11) For that the Ld. Trial Court should and ought to have consider the fact
that by the impugned order the Plaintiff has become non-suited.
12) For that the impugned Order is otherwise bad in law and is liable to
be set aside.
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CERTIFICATE
I, certify that the above are the good
Grounds of Appeal and I undertake to
support the same at the time of
hearing.
ADVOCATE
LIST OF PAPERS
1. Memo of Appeal
2. Vakalatnama
3. Certified Copy Of The Order Dated 23. 02. 2024
Passed In Misc. Case No – 13 of 2017 by the Learned 4th Court of
Civil Judge (Junior Division) At Alipore
4. Copy of Memo of Appeal.
Prepared in my office
Advocate
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