The High Court, after considering the arguments, made the following observations:
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present : The Hon’ble Mr. Justice Sabyasachi Bhattacharyya
&
The Hon’ble Mr. Justice Uday Kumar
FMA No. 838 of 2025
+
CAN 1 of 2025
Smt. Sarala Agarwal and others
Vs.
Sri Tanmoy Banerjee and others
For the appellants : Mr. Piush Chaturvedi, Sr. Advocate,
Mr. Suman Basu,
Mr. Abdul Murshid,
Mr. Debapriya Ghosh.
For the respondents : Mr. Saptansu Basu, Sr. Advocate,
Mr. Supratim Dhar, Sr. Advocate,
Mr. Dhananjoy Nayak.
Heard on : June 25, 2025.
Judgment on : June 25, 2025.
Sabyasachi Bhattacharyya, J.:
1. The present appeal has been filed by the defendant nos. 20 to
22 in a suit for partition instituted by the plaintiffs/respondents,
against an order whereby the appellants’ application under
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Order XXXIX Rule 4 of the Code of Civil Procedure, for
vacating an ex parte ad interim order obtained by the
plaintiffs/respondents, was rejected.
2. Learned senior counsel appearing for the appellants contends
that the learned trial Judge erred in law in proceeding on
wrong premises to reject the said application.
3. It is submitted that by a sale deed executed on April 3, 2000,
one Shyamali @ Fulmani Ghosal, the alleged predecessor-ininterest/donor of the plaintiff/respondent no. 1, had sold her
share in the suit property in favour of the appellants.
4. However, by gross suppression of the said fact, the present
suit was filed for partition, without challenging the said sale
deed, on the strength of a purported deed of gift executed by
said Shyamali @ Fulmani Ghosal on January 5, 2010, that is
ten years subsequent to the transfer in favour of the
appellants.
5. It is submitted by learned senior counsel appearing for the
appellants that apart from the suppression of the existence of
the sale deed and no relief against the said sale deed having
been sought in the suit, the plaintiffs also suppressed the fact
that the present appellants have initiated a suit challenging the
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purported gift deed executed in favour of the
plaintiffs/respondents.
6. In the said suit, although service of summons was sought to be
effected at the defendant’s (present respondent no. 1) address
as given in the cause title thereof, which exactly tallies with the
address of the plaintiffs as given in the plaint of the current
partition suit, the summons could not be served.
7. The postal articles, despite repeated efforts on the part of the
appellants, returned with the endorsement “insufficient
address”.
8. It is argued that the plaintiffs/respondent no. 1 also suppressed
the fact that on the basis of a complaint lodged on the ground
of forgery of the purported gift deed against both the plaintiff/
alleged donee and Shyamali @ Fulmoni, the alleged donor, a
First Information Report was registered, which led to a criminal
investigation, culminating in a charge sheet being filed inter
alia against the plaintiff/respondent no. 1.
9. In the said criminal proceeding, it has been recorded by the
concerned court that the plaintiff/respondent no. 1 is
absconding, which also indicates that the plaintiff/respondent
no. 1 herein is deliberately avoiding service of summons in the
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suit filed by the present appellants as well as in the criminal
proceedings.
10. It is argued that the expression “absconding” makes it
implicit that the plaintiff/respondent no. 1 is deliberately
avoiding appearing in the said proceedings.
11. Learned senior counsel argues that the learned trial Judge
proceeded on the premise that the parameters of the first
proviso to Order XXXIX Rule 4 is not applicable, since no
knowledge of the previous sale deed or the appellants’ suit or
criminal proceedings could be attributed to the
plaintiff/respondent no. 1. It is submitted that in view of the
circumstances as indicated above, such finding is erroneous.
12. Also, the learned trial Judge relied on the allegation of the
plaintiff/respondent no. 1 in his application under Order VI Rule
17 of the Code of Civil Procedure, for amendment of the plaint
of the present suit, to the effect that the vendor of the
appellants/donor of the plaintiff/respondent no. 1 was a minor
at the relevant juncture when the sale deed was executed,
which was also an erroneous basis.
13. It is argued that since the application under Order VI Rule
17 of the Code of Civil Procedure has not yet been allowed,
the alleged minority of the vendor of the appellants at the
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relevant juncture is not yet a part of the pleadings and was not
so even on the date when the ex parte ad interim order was
passed and as such, could not be taken into consideration by
the learned trial Judge while passing the impugned order.
Thus, the premise of minority was also erroneous.
14. However, the admission of the plaintiff/respondent no. 1 to
the effect there was a sale deed in favour of the present
appellants, which was sought to be avoided on the ground that
the vendor Shyamali @ Fulmoni was a minor, can be
construed from the amendment application for the purpose of
an application under Order XXXIX Rule 4 of the Code of Civil
Procedure.
15. It is, thus, submitted that the impugned order ought to be
set aside on both counts.
16. Learned senior counsel appearing for the
plaintiff/respondent no. 1 vehemently opposes the arguments
of the appellants and submits that in the plaint of the present
suit itself, it has been categorically averred in paragraph no. 5
that the plaintiff, Tanmoy Banerjee, due to his education and
thereafter job, went to Lucknow, Uttar Pradesh and started
residing therein.
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17. It has also been explained in the plaint that therefore, a
Power of Attorney was executed in favour of Shri Amit
Ganguly, the plaintiff’s Constituted Attorney, who has been
conducting the proceedings in the trial court as well as this
court on behalf of the plaintiff.
18. Thus, it is argued that the service of summons in respect of
the suit filed by the present appellants regarding the gift deed
executed in favour of the plaintiff/respondent no. 1, at the
Kolkata address, could not be completed. As such, it cannot
be said that the plaintiff/respondent no. 1 had any knowledge
regarding the purported challenge to the gift deed and/or the
pendency of any criminal case against the plaintiff/respondent
no. 1.
19. Insofar as the existence of the sale deed in favour of the
appellants is concerned, it is argued that the knowledge of the
same was derived for the first time by the plaintiff / respondent
no. 1 from the averments made in the application under Order
XXXIX Rule 4 of the Code of Civil Procedure filed by the
present appellants.
20. Learned senior counsel hands over a printout of the server
copy of Order No. 6 dated June 19, 2025 passed in Title Suit
No. 503 of 2025, which is the suit filed by the appellants
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challenging the gift deed of the plaintiffs herein, to show the
court that the summons of the said suit have not yet been
served on the plaintiff/respondent no. 1, thus, negating the
contention that the plaintiff/respondent no. 1 could have any
knowledge about the previous sale deed and/or the initiation of
a criminal case against him.
21. Learned senior counsel appearing for the
plaintiff/respondent no. 1 heavily relies on the language of
Order XXXIX Rule 4 of the Code of Civil Procedure and argues
that the suppression of any material fact, even if any, has to be
“knowingly” done in terms of the said provision. It is argued
that in the absence of anything to attribute knowledge to the
plaintiff / respondent no. 1, the yardsticks stipulated in Order
XXXIX Rule 4 of the Code of Civil Procedure could not be
applied and as such, the impugned order was justified.
22. In reply, learned senior counsel for the appellants submits
that for abundant caution, a copy of the present application
was sought to be sent directly to the plaintiff/respondent no. 1,
which was also returned with the endorsement “insufficient
address”.
23. It is submitted that in view of the deliberate avoidance of
service by the respondent no. 1, it can very well be construed
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that the plaintiff / respondent no. 1 is well aware of the
pendency of the suit as well as the criminal proceedings
against him.
24. Upon a careful consideration of the rival contentions of the
parties, we find that the first premise of the impugned order,
being the alleged minority of the vendor of the appellants and
donor of the plaintiff/respondent no. 1, was erroneous.
25. As rightly argued by the appellants, since the amendment
application filed by the plaintiff / respondent no. 1 is yet to be
disposed of, the allegation regarding the alleged minority of the
vendor of the appellants, at the time when the sale deed was
executed in favour of the appellants, has not yet seen the light
of the day insofar as the pleadings in the present partition suit
are concerned. Hence, the maximum worth which could be
lend to the averments made in the Order VI Rule 17
application would be by way of admission of the execution of
the sale deed, which was sought to be challenged by citing the
alleged minority of the vendor. The minority of the vendor
itself, not being a part of the pleadings as yet, could not be
looked into while deciding the application under Order XXXIX
Rule 4 of the Code of Civil Procedure.
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26. There is some doubt as to whether knowledge can be
attributed to the plaintiffs with regard to the material facts
which were suppressed in the present case or not.
27. However, we are of the opinion that sufficient materials
have been placed before us to reasonably give rise to the
question as to whether the plaintiff/respondent no. 1, despite
having full knowledge of the criminal proceedings and the suit
filed against him by the appellants, is avoiding the process of
law by deliberately absconding from his residence as disclosed
in the cause title of the plaint of his own partition suit.
28. The moment the criminal court observed that the
plaintiff/respondent no. 1 is “absconding”, a presumption arises
that there is an element of willfulness in such abstention. That
apart, an evasive game is apparently being played by the
plaintiff / respondent no. 1 by disclosing his residential address
as 174, Garia Station Road, P.O – Garia, P.S – Nadia, Kolkata
– 700084, District – South 24 Parganas in the cause title of the
partition suit but in the body of the plaint, in an elusive manner,
it has merely been mentioned that due to education and job he
has gone to Lucknow, Uttar Pradesh, without caring to
disclose the particulars of such address.
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29. Order VII Rule 1(b) of the Code of Civil Procedure imposes
the duty on the plaintiff/respondent no. 1 to include the name,
description and place of residence of the plaintiff. In the
absence of disclosure as to his Lucknow residence by the
plaintiff / respondent no. 1, it is evident that Order VII Rule 1
has not been complied with.
30. In the event the address disclosed in the cause title of the
plaint is the plaintiff’s correct address, there could not be any
reason why the summons as well as the service intended in
the present appeal would return with the endorsement
“insufficient address”.
31. More importantly, we find that the address of the plaintiff /
respondent no. 1, as disclosed in the purported gift deed, on
the strength of which the plaintiff claims title, is again different
from that disclosed in the cause title of the plaint. The criminal
case was initiated on the basis of a complaint where the
residential address of the plaintiff / respondent no. 1 which has
been given in the gift deed was stated.
32. Despite the same, the plaintiff/respondent no. 1 could not
be apprehended or traced in connection with the criminal case,
showing that the said address is also an erroneous address.
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33. The learned Trial Judge ought to have looked into the
matter as to whether the plaintiff/respondent no. 1 genuinely
did not have knowledge of the sale deed executed in favour of
the appellants as well as the suit filed by the appellants, i.e.
Title Suit No. 503 of 2023 and/or the criminal case initiated
against the plaintiff / respondent no. 1 at the behest of the
appellants or whether the plaintiff / respondent no. 1 is playing
an evasive game with the process of law by disclosing different
addresses in different places and in an illusory manner states
in the body of the plaint that he resides at Lucknow in Uttar
Pradesh without disclosing the particulars of the said address.
34. For such purpose, it is necessary that the learned trial
Judge gives further opportunity to the parties to establish their
respective cases in connection with the application under
Order XXXIX Rule 4 of the Code of Civil Procedure.
35. Hence, we also opine that the observation in the impugned
order, to the effect that the plaintiff / respondent no. 1 did not
have knowledge of the above germane facts, has to be taken
with a pinch of salt.
36. In the light of the above observations, FMA No. 838 of 2025
is allowed on contest against the plaintiff / respondent no. 1,
thereby setting aside the impugned order, being Order No. 18
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dated April 28, 2025 passed by the learned Civil Judge (Senior
Division)-cum- Assistant Sessions Judge, Second Court at
Baruipur, District South 24 Parganas in Title Suit No. 138 of
2024, and remanding the application under Order XXXIX Rule
4 of the Code of Civil Procedure to the trial Court for a fresh
adjudication on merits upon giving opportunity to both sides to
produce further materials, if they so deem fit, and to decide the
same afresh in the light of the observations made above.
37. Since a written objection has already been filed in
connection with the main temporary injunction application
pending before the learned trial Judge, it is expected that the
learned trial Judge shall decide the application under Order
XXXIX Rule 4 of the Code of Civil Procedure afresh along with
the application under Order XXXIX Rules 1 and 2 of the Code
of Civil Procedure as expeditiously as possible, positively
within a month from the date of communication of this order to
the court below.
38. CAN 1 of 2025 is disposed of accordingly as well.
39. There will be no order as to costs.
I agree. (Sabyasachi Bhattacharyya, J.)
(Uday Kumar, J.)
