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Judgment
This first appeal was filed beyond the prescribed period of limitation. There was 139 days delay in filing this appeal.
In spite of service, none appears on behalf of the respondent nos. 1, 12 and 17. As a matter of fact, suit was also being proceeded with against the respondent no.17 ex parte. The other respondents are represented by Mr. Debjit Mukherjee, learned advocate. He does not seriously oppose the appellants'' prayer for condonation of delay.
Considering the averments made in the application for condonation of delay, we are of the view that the reason for the delay has been sufficiently explained by the appellants/applicants in this application. Accordingly, delay in filing this appeal is condoned. Let the appeal now be registered.
Let the affidavit-of-service filed in Court today be kept with the record.
The application for condonation of delay being CAN 1468 of 2016 is, thus, disposed of.
Let it be recorded that Mr. A. Z. Mondal, learned advocate filed Vakalatnama on behalf of the respondent nos. 2 to 11 and 13 to 16 vide filing No. A-15128 dated 26.08.2016. Re: FAT 61 of 2016
Immediately after the delay in filing the appeal was condoned and the appeal was regularized, we were requested by the learned counsel appearing for the parties to dispose of the appeal itself on merit on the basis of the papers available before us.
Considering the nature of the impugned order, we are of the view that this appeal can be decided on merit by dispensing with the requirement of filing paper book in this appeal. As such, we have decided to dispose of the appeal itself on merit on the basis of the papers available before us.
Plaintiffs/appellants filed the suit for partition against their co-sharers. The said suit matured for peremptory hearing and in fact, 28th April, 2015 was the date fixed for peremptory hearing of the suit. on that date, the plaintiffs filed examination-in-chief on affidavit. The next date for hearing of the said suit was fixed on 14th May, 2015. The plaintiffs did not respond on repeated calls on that date. Since none appeared on behalf of the plaintiffs on that date, the learned Trial Judge directed the plaintiffs to show cause as to why the suit will not be dismissed. The suit was adjourned till 2nd June, 2015 when the plaintiffs submitted their petition showing cause explaining the reason of their nonappearance on 14th May, 2015.
Learned Trial Judge was not satisfied with the explanation given by the plaintiffs/appellants in the said petition primarily on the ground that verification made by the plaintiffs/appellants appeared to the court as untrue. Thus, the learned Trial Judge did not accept the cause shown by the plaintiffs/appellants as justifiable reason for their non-appearance. Thus, the suit was dismissed.
Challenging the said order, the instant first appeal has been filed. The impugned order was passed in a suit for partition. Suit for partition has a recurring cause of action. Such suit can be filed by any of the co-sharer on the basis of the cause of action which may arise for partition on any subsequent date. As such, we feel that justice will be subserved if the order of dismissal of the suit is set aside and the suit is restored to its original file and number. This conclusion we have drawn after considering the submission of Mr. Mukherjee, learned advocate who also invited this Court to restore the suit and for issuance of necessary direction upon the court below for expeditious disposal thereof.
We, thus, set aside the impugned order. The suit is, thus, restored to its original file and number. Considering the stage of the suit, we request the learned Trial Judge to make all endeavour to dispose of the said suit as early as possible without granting any unnecessary adjournment to any of the parties. Parties are also directed to co-operate with the learned Trial Judge for expeditious disposal of the suit.
The appeal is, thus, disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.