SRI ASIM KUMAR CHOWDHURY Vs. SRI MONOJIT DAS

JUDGEMENT

(1.) This is one of some other unfortunate events came to the notice of this court where the first appeal being Misc. Appeal (Pre-emption) No.24 of 2016 preferred by the appellant-petitioner against an order of pre-emption allowed by learned Civil Judge (Junior Division), 1st Court, Malda in Misc. Pre-emption Case No.46 of 2014 is said to have been decided by dismissing the appeal by passing necessary order and a judgment (9 Sheets) of which was kept separately, although both the appellant and the respondent or their learned advocates were found absent before learned appellate court without step.

(2.) Ms Sarkar, learned advocate appearing for the petitioners, relying upon a decision of the Supreme Court in the case of Ajit Kumar Singh and Ors. v. Chiranjibi Lal and Ors. reported in AIR 2002 SC 1447(2) and an unreported decision passed by this court on April 6, 2017 in CO No. 775 of 2017 (Md. Monsur Rahaman v. Naitul Sk) submitted that in the given sequence as appearing from the impugned order, at best, the appeal ought to have been directed to be dismissed for default.

(3.) On the other hand, Dr Mondal assisted by Mr Banerjee representing the opposite party, in his usual fairness, admitted about the legal position and submitted that in that given situation where both the sides remained un-represented before learned appellate court, either the misc. appeal for the interest of justice would have been adjourned to some other date, or, taking worst view of the same, the appeal could have been dismissed for default with or without costs.