ASOKE KUMAR BHATTACHARYYA Vs. MANJU BHATTACHARYYA

JUDGEMENT

(1.) The plaintiff has filed this application under Article 227 of the Constitution of India challenging order No. 34 dated 9th November, 2011 passed in T.S. No. 125/2007 so far as it relates to rejecting the plaintiffs application dated 13th January, 2011 and the application for recording effecting service upon the defendant No. 3 and to proceed with the suit ex parte against her. Mr. Mazumder appearing for the petitioner plaintiff submits that the plaintiff filed a suit being T.S. No. 125/2007 praying for eviction of the defendants being licensees under him. He submits that in said suit defendant Nos. 1 and 2 filed joint written statement supported by an affidavit of defendant No. 1 mother stating that she after getting necessary instructions from her son defendant No. 2 made said affidavit on behalf of both self and defendant No. 2. He submits that in spite of filing of said joint written statement and contesting the trial jointly learned trial Court permitted defendant No. 2 to again cross examine PW 1 after she was thoroughly cross examined by the learned Counsel appearing for both defendant Nos. 1 and 2. He submits that learned trial Court substantially erred in law; by permitting defendant No. 2 to again cross examine P.W. 1 though another lawyer. In this connection he further submits that the defendant No. 2 engaged a new lawyer only on 11th August, 2010 and the cross examination of PW 1 was concluded on 5th August, 2010. He submits that learned trial Court wrongly held that fresh vakalatnama on behalf of the defendant No. 2 was filed on 10th November, 2008. He submits that learned trial Court also substantially erred in law while rejecting the prayer of the plaintiff for noting that the service upon the defendant No. 3 was sufficient and that the suit should go ex parte against her. In this connection he submits that the notice sent through Court returned with the endorsement of the process server that the defendant No. 3 refused to accept the notice. He further submits that the notice sent to the defendant No. 3 under registered post with and returned with the postal endorsement "not claimed". He has cited a case law Ganesh Chandra Nandi v. J.N. Chatterjee & Ors., 1966 70 CalWN 676

(2.) Mr. Rakshit appearing for the O.P. Nos. 1 and 2 is fair enough to admit that as new vakalatnama was filed by the defendant No. 2 only on 11th August, 2010 after closing of cross examination of P.W. 1 on 5th August, 2010 by the learned Counsel of both defendant Nos. 1 and 2 he has nothing to say in support of the order impugned so far as it relates to rejection of plaintiffs petition on this score.

(3.) He submits that learned trial Court was of the opinion that the report of service so far as defendant No. 3 is concerned was not sufficient and accordingly directed the plaintiff to take further steps for causing service upon the defendant No. 3 and that this Court should not interfere with the same.