On the Death of Bijon Kumar Ghosh His Legal Heirs and 5 Ors v. Balaram Goswami and 7 Ors

ORDER

25.01.2023 Heard Mr. S. K. Ghosh, learned counsel for the petitioners. Also heard Mr. A. Das, learned counsel for the respondents.

¶2The present petitioners as plaintiffs filed a suit being Title Suit No. 71/2015 before the learned Civil Judge No. 2, Cachar, Silchar, for declaration of right, title, interest and confirmation of possession over the suit property. The said suit was dismissed by Judgment and Decree dated 20.12.2018 on the ground that the plaintiffs had failed to adduce evidence. Being aggrieved, the plaintiffs/petitioners preferred an appeal before the learned Additional District Judge, FTC, Cachar, Silcahr, which was registered as Title Appeal No. 01/2019.

¶3The learned appellate court below after considering the appeal, hearing the learned counsel for the parties by its order dated 21.03.2022, set aside the Judgment and Decree dated 20.12.2018 and allowed the plaintiffs/petitioners to adduce evidence subject to payment of a cost of Rs. 8,000/- before the learned trial Court on or before 21.04.2022.

¶4Accordingly, the parties appeared before the learned trial court below and dismissed the suit for default on the ground that the plaintiffs had failed to Page No.# 5/5 deposit the cost as awarded by the learned appellate Court below within the stipulated period. However, Mr. Ghosh, learned counsel for the petitioners relying on Annexure-VII (page 32) submits that the plaintiffs had already deposited the said amount before the learned court below on 13.06.2022.

¶5Be that as it may, Mr. A. Das, learned counsel for the respondents submits that as the case has been remanded back by the learned appellate Court allowing the plaintiffs to adduce evidence and such order has not been challenged by the respondents, he will not object if the plaintiffs are allowed to lead evidence on deposit of aforesaid cost.

¶6In view of the aforesaid submissions, this Court is of the considered opinion that the learned trial Court below shall verify whether the plaintiffs/petitioners had already deposited the cost amount in terms of the application dated 13.06.2022 (Annexure-VII), if the cost has already been deposited, same may be given to the defendants/respondents in terms of the appellate Court's order and if such no amount has been deposited, the plaintiffs/petitioners shall deposit the said amount on 15.02.2023, before the learned trial Court below and in the event of such payment, learned trial court shall restore the suit and proceed with the same in terms of the appellate judgment.

¶7In the aforesaid terms, this petition is disposed of. JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010210052022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCRP/107/2022o ONoTHEoDEATHoOFoBIJONoKUMARoGHOSHoHISoLEGALoHEIRSoANDo5oORS.o REPRESENTING 1.1:oSMTIoUSHAoRANIoGHOSH oW/OoLATEoBIJONoKUMARoGHOSH oR/OoSALGANGA oP.O.-SALGANGA oPIN-781003 1.2:oBISWAJIToGHOSH oS/OoLATEoBIJONoKUMARoGHOSH oR/OoSALGANGA oP.O.-SALGANGA oPIN-781003 1.3:oBIPRENDRAoGHOSH oS/OoLATEoBIJONoKUMARoGHOSH oR/OoSALGANGA oP.O.-SALGANGA oPIN-781003 1.4:oBIRESWARoGHOSH oS/OoLATEoBIJONoKUMARoGHOSH oR/OoSALGANGA oP.O.-SALGANGA PageoNo.#o2/5 oPIN-781003 2:oSATYABRATAoGHOSH oS/OoLATEoGOPENDRAoKUMARoGHOSH oR/OoSALGANGA oP.O.-SALGANGA oPIN-781003 3:oPRATYUSHoKUMARoGHOSE oS/OoLATEoGOPENDRAoKUMARoGHOSH oR/OoSALGANGA oP.O.-SALGANGA oPIN-781003 4:oPRASANTAoKUMARoGHOSH oS/OoLATEoGOPENDRAoKUMARoGHOSH oR/OoSALGANGA oP.O.-SALGANGA oPIN-781003 5:oPIJUSHoKUMARoGHOSH oS/OoLATEoGOPENDRAoKUMARoGHOSH oR/OoSALGANGA oP.O.-SALGANGA oPIN-781003 6:oPURNENDUoKUMARoGHOSH oS/OoLATEoGOPENDRAoKUMARoGHOSH oR/OoSALGANGA oP.O.-SALGANGA PageoNo.#o3/5 oPIN-78100o VERSUSo BALARAMoGOSWAMIoANDo7oORS.o R/OoSALGANGAPAR,oP.S.-UDHARBOND,oDIST-CACHAR,oASSAM,oPIN-788031 2:BIRBHADRAoGOSWAMI oR/OoSALGANGAPAR oPIN-788031 3:BOERNYAoGOSWAMI oR/OoSALGANGAPAR oPIN-788031 4:SIMAoBHUMIJ oR/OoSALGANGAPAR oPIN-788031 5:UTTAMoBHUMIJ oR/OoSALGANGAPAR oPIN-788031 6:SUMIJoBHUMIJ oR/OoSALGANGAPAR oPIN-788031 7:MONAoBHUMIJ oR/OoSALGANGAPAR oDIST-CACHARoASSAMoPIN-788031 8:SAPTAMIoBHUMIJ Page No.# 4/5 R/O SALGANGAPAR P.S.-UDHARBOND DIST-CACHAR ASSAM PIN-78803 Advocate for the Petitioner : MR. S K GHOSH Advocate for the Respondent : MR. A DAS BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY