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 FA No. 119 of 2025 +

CAN 1 of 2025 Santa Gurung and others -vs-

Sadhan Mukhopadhyay (alias Sukumar) and others For the appellants : Mr. Rabindra Kumar Mitra, Mr. Sourjya Das, Ms. Poulami Bhowmick.

For the respondents : None Heard on : April 21, 2025. Judgment on : April 21, 2025. Sabyasachi Bhattacharyya, J.:

1. The affidavit-of-service filed in Court today be kept on record.

2. In our order dated March 25, 2025, we had categorically observed that in view of the short ambit of the appeal, the service of notice along with copy of the application and the Memorandum of Appeal would be deemed to be sufficient service of notice of hearing of the appeal as well.

3. Despite such service having been successfully effected, as borne out by the affidavit-of service, none appears on behalf of the contesting respondent when the matter is called on for hearing today. As such, we take up the appeal for hearing ex parte.

4. The present appeal arises out of a deemed decree rejecting the plaint of the appellants’ suit for specific performance primarily on the ground that no cause of action has been made out in the plaint.

5. The brief history of the case is that the suit was filed by the plaintiffs/appellants for a decree of specific performance of an agreement for sale.

6. Initially, an application, captioned peculiarly to be one under Section 5 of the Limitation Act, was filed by the defendant no. 1/respondent no. 1, raising an objection as to the suit being barred by limitation. The learned trial Judge turned down such objection.

7. Subsequently, an application for rejection of plaint was filed by the defendant no. 1/respondent no. 1 under Order VII Rule 11 of the Code of Civil Procedure (in short “the Code”), this time on the ground that the suit was undervalued.

8. While advancing arguments, however, the defendant no.

1/respondent no. 1 took the self-same objection of the suit being barred by limitation, which had already been decided at the first instance by the learned trial Judge.

9. As such, the application under Order VII Rule 11 of the Code was turned down by the learned trial Judge.

10. Being aggrieved collectively by the order of rejection of the prior Section 5 application as well as the subsequent Order VII Rule 11 application, the defendant no. 1/respondent no. 1 preferred a revisional application before this Court, which was disposed of by a learned Single Judge of this Court vide order dated April 28, 2023 passed in C.O. No. 355 of 2023. The learned Single Judge affirmed the finding of the learned Trial Judge that the issue of limitation was a mixed question of law and fact and as such, can be raised only at the time of trial and affirmed the dismissal of the application for rejection of plaint on such ground. However, the matter was remanded to the learned trial Judge for a rehearing of the application under Order VII Rule 11 of the Code for the purpose of ascertaining the other issue as to whether the suit was undervalued and/or short court-fees had been put in.

11. This time, instead of having a rehearing on the self-same application under Order VII Rule 11 of the Code, as intended by the learned Single Judge, the defendant no. 1/respondent no. 1 filed a fresh application under Order VII Rule 11 of the Code, reiterating the arguments made on the earlier occasion as to the suit being undervalued.

12. In respect of under-valuation, however, the learned Trial Judge, by the impugned order (deemed decree), held that the plaintiffs categorically took a stand that the value of the suit was mistakenly shown as Rs.99/- which was not intentional and accordingly had prayed for necessary correction of the same.

13. In fact, it is also submitted before this Court on behalf of the appellants that the appellants are agreeable to effect the necessary amendment to the plaint an