SANTOSH KUMAR JAIN Vs. VIJAY KUMAR JAIN

JUDGEMENT

(1.) Heard the learned advocates appearing on behalf of the parties.

(2.) This is an application under Article 227 of the Constitution of India primarily directed against an order, being Order No. 19 dated 7th, January, 2008 passed by the learned Judge, 10th Bench of City Civil Court at Calcutta in Title Suit No. 1843 of 2006.

(3.) By the order impugned, the learned Court below while hearing a petition dated 2nd August, 2007 filed by the added defendants under section 151 of the Code of Civil Procedure, proceeded to take up another petition which was filed by the plaintiffs on 9th October, 2007 and on the basis of the said petition of the plaintiffs, passed an order dismissing the suit for non-prosecution. For convenience the order impugned in its entirety is set out hereinbelow: "Both parties file haziras. Today is fixed for hearing the petition dated 2.8.07 under section 151 of the CPC filed by the petitioner/defendants Santosh Kumar Jain and Smt. Radha Rani Jain. Heard both sides learned lawyers in full. During pendency of hearing of the instant petition the plaintiff filed one petition on 9.10.07 stating that the plaintiff is not interested to proceed with the instant suit. But today the same is not fixed for hearing. It is the case of the petitioner/Santosh Kumar Jain and Smt.Radha Rani Jain that the plaintiff had mis-represented the Court and got an interim order. If the plaintiff is not interested to proceed with the instant suit it would be an excise in futility at the cost of the public money and time to pass any order on the petition dated 2nd August, 2007. If the plaintiff committed any error then the petitioner can move against the plaintiff as per law. There is no bar to that effect. The petition dated 19.10.07 which is pending before this Court that can be taken into consideration. Though the plaintiff has not yet turn up, but the learned lawyer for the plaintiff has submitted before the Court that his client is not willing to proceed with the case. Court fees paid are found correct. Hence, it is, Ordered that the instant suit be and the same dismissed for non-prosecution. The petition filed by the petitioner Santosh Kumar Jain and Smt. Radha Rani Jain under section 151 of CPC dated 2.8.07 also disposed of with a note that any further order on the said petition would be infructuous as the suit is dismissed non-prosecution this day. I make no order as to cost."