Shyam Sundar Paul vs Sri. Goutam Poddar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Cal) 942

SOUMEN SEN, BISWAJIT BASU
Shyam Sundar Paul – Appellant
Versus
Sri. Goutam Poddar – Respondent

Advocates appeared:
Mr. Kallol Basu, Mr. Nilanjan Pal, Mr. Deborshi Dhar, for the Appellant.

JUDGMENT

Biswajit Basu, J. - This is an application for restoration of the appeal being F.M.A. No. 1 of 2021 upon recalling of the order dated December 15, 2021 whereby the appeal was dismissed as misconceived.

2. Learned advocate for the appellant/petitioner submits that the instant appeal was initially filed in the Principal Bench of the High Court but transfer of it to this Circuit Bench completely skipped the notice of the learned advocate on record for the appellant, as a consequence thereof, the appellant could not be represented on December 15, 2021 resulting dismissal of the present appeal.

3. He further submits that the explanation appended to Order XLI Rule 17 of the Code of Civil Procedure puts a bar to the power of the appeal Court to dismiss an appeal on merit in the absence of the appellant/petitioner, since, dismissal of the appeal as misconceived amounts to dismissal of it on merits, in the absence of the appellant the appeal should not have been dismissed as such.

4. On the point of maintainability of the appeal, learned advocate for the appellant/petitioner submits that the learned Trial Judge disposed of the suit on a preliminary point of maintainability. The Appeal