Calcutta High Court (Appellete Side)
Iftekhar Alam vs M/S. K.N. Paul on 24 July, 2025
Author: Hiranmay Bhattacharyya
Bench: Hiranmay Bhattacharyya
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Hiranmay Bhattacharyya
C.O. 2469 of 2025
Iftekhar Alam
Vs.
M/s. K.N. Paul
For the Petitioner : Mr. Tanmoy Mukherjee
Mr. Animesh Paul
For the Opposite party : Mr. Debjit Mukherjee
Mr. Kaustav Bhattacharya
Ms. Priyanka Jana
Heard on : 24/07/2025
Judgment on : 24/07/2025
Hiranmay Bhattacharyya , J. :
1. The defendant, who is the appellant in Title Appeal No.94 of 2023
has approached this Court by filing an application under Article 227
of the Constitution of India challenging the orders dated December
5, 2024, December 23, 2024, January 22, 2025 and May 22, 2025,
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all passed by the learned Additional District Judge, Fast Track, 1st
Court at Howrah in Title Appeal No.94 of 2023.
2. Mr. Tanmoy Mukherjee, learned advocate appearing for the
petitioner submits that the petitioner filed an application for
amendment of the written statement but the learned judge of the
First Appellate Court passed an order on December 5, 2024 thereby
directing the appellant to file the amended memo of appeal on the
next date. Mr. Mukherjee submits that an application under Order
41 Rule 27 along with the application under Order 6 Rule 17 of the
Code of Civil Procedure for amendment of written statement were
filed and the learned judge of the First Appellate Court did not fix
any date for hearing of the application under Order 41 Rule 27 of
the Code of Civil Procedure. Mr. Mukherjee further submits that on
May 22, 2025 the petitioner filed an application under Section 151
of the Code of Civil Procedure, but the learned judge of the First
Appellate Court instead of fixing a date for hearing of such
application fixed a date for delivery of judgment. Mr. Mukherjee
submits that though the petitioner who is the appellant in the
aforesaid title appeal had filed the written notes of argument but the
petitioner was not allowed to advance any oral argument in support
of the appeal as well as the application under Order 41 Rule 27 of
the Code of Civil Procedure.
3. Mr. Debjit Mukherjee, learned advocate appearing for the opposite
party submits that the petitioner complied with the order allowing
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the application for amendment of the written statement by filing an
amended written statement. He further submits that the appellant,
who is the defendant in a suit for eviction is trying to delay the
hearing of the appeal on frivolous grounds. He submits that the
petitioner herein after advancing oral argument in part thereafter
filed an application for amendment of the written statement and the
application under Order 41 Rule 27 of the Code of Civil Procedure in
order to delay the hearing of the appeal. He further submits that
the opposite party was, therefore, was compelled to file an
application under Article 227 of the Constitution being CO 2561 of
2024 praying for a direction upon the learned judge of the Appellate
Court to dispose of the appeal expeditiously and a co-ordinate
Bench, by an order dated September 19, 2024, passed a direction
upon the learned judge of the Appellate Court to dispose of the
appeal expeditiously without granting any unnecessary
adjournments to either of the parties.
4. Heard the learned advocates for the respective parties and perused
the materials placed.
5. Record reveals that November 22, 2023 was fixed for hearing of the
appeal. On that date the petitioner herein prayed for time on the
ground of the learned senior advocate and the learned judge of the
Appellate Court allowed such prayer and fixed January 6, 2024 for
hearing of this appeal. On January 6, 2024 the learned judge of the
First Appellate Court heard the argument of the appellant/petitioner
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herein in part and on the prayer of the learned advocate for the
petitioner fixed April 2, 2024 for hearing of the appeal and it was
recorded in the said order dated April 2, 2024 that no further
adjournment shall be granted. On June 20, 2024 the learned judge
of the Appellate Court adjourned the hearing of the appeal for the
ends of justice and fixed July 3, 2024 for hearing of the appeal and
observed that no further adjournment shall be granted.
6. At this stage it would be relevant to point out that the co-ordinate
Bench passed an order in CO 2561 of 2024 on September 19, 2024
requesting the learned judge of the Appellate Court to make all
endeavour to dispose the appeal as expeditiously as possible and in
accordance with law and in doing so shall not grant any
unnecessary adjournment to either of the parties.
7. Record reveals that thereafter the opposite party filed a petition for
preponing the date along with the copy of the order passed in CO
2561 of 2024. On November 13, 2024 the petitioner filed two
applications one under Order 6 Rule 17 of the Code of Civil
Procedure for amendment of written statement and the other under
Order 41 Rule 27 of the Code of Civil Procedure praying for leave to
adduce additional evidence. The learned judge of the Appellate
Court fixed November 22, 2024 for hearing of the appeal along with
the applications under Order 41 Rule 27 of the Code of Civil
Procedure and under Order 6 Rule 17 of the Code of Civil Procedure.
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8. At this stage this Court is faced with two orders on which strong
reliance has been placed by Mr. Tanmoy Mukherjee in course of
argument. Mr. Tanmoy Mukherjee submits that the petitioner could
not comprehend as to which one of the aforesaid two order is the
correct order. It appears from a bunch of certified copy containing
two orders, one dated November 20, 2024 and the other one the
date of which was typed as December 9, 2024 and, thereafter,
struck off and the date was corrected as December 5, 2024 by hand.
It appears from the said order that the petitioner was directed to file
the amended memo of appeal by the next date positively.
9. However, in the bunch of certified copy containing several orders
starting from orders dated July 18, 2023 and ending with the order
dated May 22, 2025, this Court finds that there is another order
being No.16 dated December 5, 2024. It appears from the said
order that the learned judge of the Appellate Court after being
satisfied that the schedule of the application for amendment reveals
that the proposed amendment of the written statement is formal in
nature and not likely to cause any prejudice to the respondent or
change the nature of the case allowed the prayer for amendment of
written statement on contest with cost of Rs.200/-. The petitioner
was directed to file the amended written statement by the next date
fixed.
10. Mr. Tanmoy Mukherjee would contend that the amended written
statement was filed by the petitioner herein on December 23, 2024.
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Thus, it is evident that the petitioner was conscious of the fact that
his application for amendment of the written statement has been
allowed and pursuant to such an order the petitioner has also filed
the amended written statement.
11. Mr. Tanmoy Mukherjee would vehemently contend that when the
petitioner filed the applications under Sections 151, 152 and 153 of
the Code of Civil Procedure praying for correction of the order dated
December 5, 2024 which is appearing in the bunch of the certified
copy containing two orders, the learned judge of the First Appellate
Court ought to have decided such application prior to proceeding
with the hearing of the title appeal.
12. However, instead of entering into that controversy, this Court
finds that in the second bunch of the certified copy containing
several orders, the order dated December 5, 2024 records that the
application for amendment of the written statement has been
allowed and it also not in dispute that pursuant to the said order
the petitioner has filed the written statement, no useful purpose
would be served in directing the learned judge of the First Appellate
Court to decide the applications under Sections 151, 152 and 153 of
the Code of Civil Procedure at this stage as it is not the case for
either of the parties that amendment of the Memo of appeal was
sought for.
13. Now this Court has to consider the effect of the application under
Section 151 of the Code of Civil Procedure which was filed by the
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petitioner on May 22, 2025. As rightly pointed out by Mr. Debjit
Mukherjee, learned advocate for the opposite party that by such
application the petitioner herein prayed for an order for giving
direction to the learned trial judge for framing an issue on the point
of res judicata and to dispose of the same on merit in view of the
plea as taken in the written statement by way of amendment before
the learned judge of the First Appellate Court.
14. The learned judge of the First Appellate Court, by the order dated
May 22, 2025, observed that the same will be taken for
consideration at the time of delivery of judgment, if required.
15. Mr. Tanmoy Mukherjee, learned advocate appearing for the
petitioner would contend that when an interlocutory application is
filed the same ought to have been taken up for consideration prior to
fixing the date for delivery of judgment.
16. From the tenor of the application filed under the provisions of
Section 151 of the Code of Civil Procedure, this Court finds that the
petitioner prayed for a direction upon the learned trial judge to
request the learned trial judge to frame an issue and, thereafter to
dispose of the same on merit.
17. When an appeal is pending before the learned judge of the First
Appellate Court the question as to whether the matter should be
remanded to the learned trial judge or would frame issues and refer
them for trial to the trial judge would arise when the learned judge
of the Appellate Court would finally decide the appeal. Whether the
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learned trial judge has omitted to frame or try any issue or
additional evidence is required to be taken cannot be decided in
isolation with the hearing of the appeal.
18. Thus in the considered view of this Court, the learned judge of
the Appellate Court was perfectly justified in keeping the application
filed by the petitioner under Section 151 of the Code for
consideration at the time of delivery of judgment.
19. However, it is not in dispute that the petitioner advanced his oral
argument in part. Though the petitioner has filed the written
argument, to the mind of this Court, the petitioner has to be given
an opportunity to make oral argument in support of the appeal as
well as the application under Order 41 Rule 27 of the Code of Civil
Procedure which was directed to be heard along with the appeal by
an order being No.14 dated November 13, 2024.
20. Considering the fact that the August 25, 2025 has been fixed for
delivery of judgment, this Court feels that a liberty should be
granted to the petitioner to file an application for fixing a date for
oral argument of the appellant/petitioner. If such an application is
filed on or before July 30, 2025, the learned Additional District
Judge, Fast Track, 1st Court at Howrah shall consider the same and
fix a date of hearing prior to August 25, 2025 as per the convenience
of the learned judge of the First Appellate Court.
21. Mr. Debjit Mukherjee, learned advocate for the opposite party
assures this Court that the opposite party shall cooperate with the
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learned judge of the First Appellate Court and shall not oppose the
prayer for fixing a date for early hearing of the title appeal.
22. With the above observations and directions CO 2469 of 2025
stands disposed of.
23. There will be no order as to costs.
24. Urgent photostat certified copy of this order, if applied for, be
supplied to the parties upon compliance with all requisite
formalities.
(Hiranmay Bhattacharyya, J.)
Aritra Ghosh
A.R. (Court)