RAM SAHU Vs. KANAK BARIK

JUDGEMENT

(1.) In this appeal an ex-parte order and decree of eviction of the defendant as passed on 10/10/2023 by the Learned Judge, Bench-II, City Civil Court at Calcutta, in Title Suit No. 1908 of 2023 has been assailed. By the impugned order learned trial court decreed the aforementioned suit for recovery of Khas possession, permanent injunction, mesne profit and other consequential reliefs against the defendant directing the defendant to quit and vacate and deliver up the Khas and vacant possession of the suit property in favour of the plaintiffs within a period of two months from the date of passing of the said order.

(2.) In course of his submission Mr. Chatterjee, learned advocate for the defendant/appellant at the very outset draws attention of this Court to the impugned order as well as the previous orders as passed by the learned trial court in the said suit. It is contended by Mr. Chatterjee, learned advocate for the defendant/ appellant that on conjoint perusal of the aforesaid previous orders vis  -vis the impugned order it would reveal that the learned trial court was pre-determined in not allowing the defendant to contest the said suit basically on the ground of his alleged delay in filing written statement. It is further argued that from the chronology of events as are reflecting from the said orders it would reveal further that the learned trial court was in haste for which the present appellant's valuable right to challenge the finding of the learned trial court in not recalling its order dtd. 14/7/2023 have been violated. It is further argued by Mr. Chatterjee, learned advocate for the defendant-appellant that learned trial court has also failed to visualize the predicament of the defendant in not filing his written statement since on behalf of the defendant a specific plea was taken that the suit as pending before the learned trial court is barred and accordingly the plaint is liable to be rejected. Mr. Chatterjee further argued that learned trial court ought to have given the defendant/appellant an opportunity to contest the said suit by filing his written statement. Mr. Chatterjee thus submits that it is a fit case for allowing the instant appeal by setting aside the impugned order.

(3.) Per contra, Mr. Chakraborty, learned advocate appearing for the respondents/plaintiffs submits before this Court that since the order impugned has been challenged in an appeal and not under Order 9 Rule 13 of the Code of Civil Procedure, the appellant/defendant is duty bound to assail such order on its merit. It is further argued by Mr. Chakraborty that in absence of any specific ground with regard to the merit of the instant appeal vis  -vis alleged incorrect finding of the learned trial court, the instant appeal may be dismissed in limine. Drawing further attention of ours to Order No. 1 to Order No.8 as passed in the said suit it is argued by Mr. Chakraborty, learned advocate for the respondents/plaintiffs that even after lapse of the statutory period of filing written statement the defendant had not come forward with his written statement along with a petition for acceptance of written statement beyond the statutory period and thus learned trial court is very much justified in proceeding with the said suit ex-parte. Mr. Chakraborty thus submits before this Court that it is a fit case for dismissal of the instant appeal.