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Dr. Sunetra Pal & Ors vs Sri Swarnendu Banerjee on 2 March, 2020

1

M/L 113
02.03.2020
Ct. No. 19

GB
C.O. 517 of 2020

Dr. Sunetra pal Ors.

Vs.

Sri Swarnendu Banerjee

Mr. Kajal Mukherjee,
Mr. Surajit Basu,
Mr. Bikash Chakraborty.

… for Petitioners.

Liberty is granted to correct the cause title.

This matter is taken up out of turn on the ground of urgency as mentioned by the

learned advocate.

This revisional application has been filed by the defendants in Title Suit No.93 of

2017, in which the learned Civil Judge (Senior Division), Additional Court, Chinsurah,

Hooghly passed an order dated December 10, 2019 rejecting the application of the

defendants/petitioners under Order XIV, Rule 2(b) read with Section 151 of the Code of

Civil Procedure.

It is the contention of the petitioners that the order impugned suffers from error

apparent on the fact of record, inasmuch as, the jurisdiction of the court was wrongly

invoked in view of the provision of Section 9 of the Guardian and Wards Act, 1890. It is

further urged that although the question of lack of jurisdiction of the learned court below

was not raised in the application under Order XIV, Rule 2(b) of the Code of Civil

Procedure yet, this court sitting in superintendence over all sub-ordinate courts and

tribunals, could also consider such questions which may not have been raised before the

learned court below.

Having gone through the order impugned, I find that the learned court below has

held that the suit was simpliciter a suit for declaration that the opposite party was the

father of the minor child of the petitioner nos.1 and 2, who is the petitioner no.3.

According to the learned court below, the maintainability of the suit could not be decided

without going into the evidence, and as such the application under Order XIV, Rule 2(b)

of the Code of Civil Procedure could not be allowed. According to the learned judge,

without recording of evidence the maintainability of the suit could not be decided as a
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preliminary issue. When an issue involved mixed questions of law and fact, such an issue

could not be decided as a preliminary issue.

I do not find any irregularity with the order impugned for the following reasons:

a) In the application under Order XIV, Rule 2(b) of the Code of Civil Procedure the

petitioner prayed that the learned court below, should decide on the

maintainability of the suit. No allegation with regard to the lack of jurisdiction

or want of cause of action was pleaded therein.

b) Whether the suit was barred by law or the suit ought to fail for non-disclosure of

cause of action, could not be decided by the learned judge as a preliminary issue

without recording evidence.

c) It is a settled principle of law that an application under Order XIV, Rule 2 (b) of

the Code of Civil Procedure cannot be allowed when the issues to be tried,

involved mixed questions of law and fact. Normally issues, which could be

disposed of, or decided without recording evidence, were issues which could be

dealt with as a preliminary issue.

Under such circumstances, the revisional application is disposed of. The

observations made in this revisional application are only for deciding the issue involved

herein and will not influence the learned court below.

The revisional application is disposed of.

There will be, however, no order as to costs.

Urgent Photostat certified copy of this order, if applied for, be given to the parties

on priority basis.

(Shampa Sarkar, J.)

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