ARUN SEN Vs. PUSPA RANI MUKHERJEE

JUDGEMENT

(1.) THIS application is at the instance of the plaintiff/respondent no.1 and is directed against the order dated March 30, 2009 passed by the learned Additional District and Sessions Judge, Fast Track Third Court, Sealdah in Title Appeal No.52 of 2004 thereby rejecting the show cause to accept the written statement to be filed by the plaintiff in the counterclaim.

(2.) THE short fact is that the petitioner instituted a suit being Title Suit No.685 of 1998 for declaration and injunction in respect of a flat mentioned in schedule A to the plaint claiming that he has every right to enjoy all amenities including installation of electric meter in the common electric meter box under the staircase of the building, as described in schedule B to the plaint and for other reliefs. In that suit, the defendant no.3 contested by filing a written statement with the counterclaim and copy of the counter claim was served upon the plaintiff on May 28, 1999. But the plaintiff did not file any counter-claim through inadvertence. Ultimately, the counter-claim was dismissed by an order dated June 5, 2004. THEn the appeal was filed. THE plaintiff/respondent no.1 filed a written statement along with a show cause in the said title appeal, but, by the impugned order, the learned appellate court rejected the prayer for accepting the written statement. Being aggrieved, the plaintiff/respondent no.1 has preferred this application. Now, the question is whether the impugned order should be sustained.

(3.) ON scrutiny of the impugned order, I find that the learned lower appellate court has observed that the learned Advocate for the appellant raised objection against the acceptance of the counter-claim on the ground that the counter-claim having been dismissed, the question of acceptance of the written statement does not arise unless and until the order of the dismissal of the counter-claim dated June 5, 2004 is set aside. Beside that the learned appellate court has held that the causes shown by the plaintiff/respondent no.1 as to delay in filing the written statement have not been sufficiently explained. As regards delay, the petitioner has stated in the show cause that the suit was filed initially to obtain electric meter from the C.S.E.C. authority and subsequently the respondent no.1 got the electricity as per order of the Honble High Court and the electric meter was installed. Such step was taken through a mediator and at that time, the defendants assured that the plaintiff need not move the learned Trial Court further and the suit will be dismissed accordingly. For that reason, the plaintiff did not take any step in the suit further. The plaintiff has also stated that the recorded lawyer appearing on behalf of the plaintiff overlooked the counter-claim raised by the defendant no.3.