MANISH BHATTACHARYYA Vs. SUBRABHAT BHATTACHARYYA

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution of India at the instance of the defendants/petitioners challenging the order No. 9 dated 17th June, 2014 passed by the learned Civil Judge (Junior Division), 2nd Court at Serampore in Title Suit No. 28 of 2014. After entering appearance in the said suit, the defendants/petitioners took out an application raising a plea of maintainability of the suit, firstly on the ground that the said suit is hit by principles of res judicata and secondly that there is no disclosure of cause of action in the plaint.

(2.) It appears from the impugned order that the date of hearing of the said application was fixed on 17th June, 2014. The trial Court, instead of proceeding with the said application, took note of some extraneous facts and fixed the matter for ex parte hearing. The trial Court is of the view that since the written statement has not been filed within the statutory period, the suit is to be posted for ex parte hearing. The trial Court overlooked and/of ignored the fundamental issue that once an application for maintainability of the suit is filed, the Court must hear out the said application, as such application is not dependent upon the filing of written statement. The said application is essentially an application under Order VII Rule 11 of the Code of Civil Procedure, which can be filed at any stage of the suit. The trial Court, therefore, appears to have misconstrued the provisions of Order VII Rule 11 of the Code in passing the impugned order.

(3.) Since the trial Court has fixed the matter for ex parte keeping the application filed by the petitioner raising the question as to the maintainability of the suit pending, this Court feels that the trial Court should hear out the said application first before taking any steps to post the suit for ex parte hearing.