In the Court of the
Learned Civil Judge ( Senior Division ) 1st Court, Baruipur, South
24 Parganas
Title
Suit no. 52 of 2009
In
the matter of ;
Kanai
Krishna Das (Mondal),
__________Plaintiff
-
Versus –
Ashim
Krishna Das (Mondal) and Others,
__________Defendants
Written Objection by
the defendants no. 1to5, against the petition U/O 1 Rule 10 C.P.C. by the
plaintiff, dated 17th day of February’ 2022;
The
humble petition of the above named defendants, most respectfully;
Sheweth as under;
1.
That the petition under objection
containing two numbers of pages, wherein at the first page the content and
purports has been given by the plaintiff and at the second page affidavit has
been given by the plaintiff. The said petition does not contain any annexures
and or the lists of the documents relied on by the plaintiff in establishing
his contents and purports, so far. Therefore the said petition is not
maintainable in the eye of law.
2.
That the petition under objection is
not maintainable as the same has not been placed in any prescribed form under
the Law. The said petition did not ask to invoke even any inherent jurisdiction
of the Learned Court. The plaintiff did not describe as to how he made a dead
person alive by making him a party in the present suit proceeding. The
plaintiff failed to enumerate any fact as how, and when, he came into knowledge
of such death of the said person, to whom he made party in the present civil
suit. Therefore the petition under objection is liable to be rejected at once
with exemplary cost, thereof.
3.
That allegedly the defendant no. 28,
died on 22-09-2018, and after expiry of substantial considerable period of 3
year, 4 months 26 days being on 17th Feb’ 2022, the petition under
objection has been placed by the plaintiff, which is apparently improper and
not maintainable and thus liable to be dismissed with exemplary cost thereof in
the interest of administration of Justice.
4.
That the defendant no. 28, died
leaving behind her 4 (four) daughters; But the plaintiff stated about 3 (three)
daughters only, which are incorrect version and statement. Such untrue
statement should be turn down.
5.
That it is not claimed that the
petitioner is a person who ought to have been joined as a necessary party to
the suit, and the only question is whether he could be impleaded as a party
whose presence before the court may be necessary in order to enable the court
to effectually and completely adjudicate upon and settle the questions involved
in the suit. Thus the petition under objection is not maintainable and liable
to be rejected at once with exemplary cost thereof in the interest of
administration of Justice.
6.
That the test for determining in
adding the alleged persons as party to the suit has not been placed by the
plaintiff. No appropriate application has ever been placed by the plaintiff in
substituting the alleged persons within the time frame under CPC. The plaintiff
failed to adhered with the observation held in Benares Bank Limited Versus
Bhagwandas, reported in AIR 1947 All 18, and described as true tests by Supreme
Court in Deputy Commr. Hardoi Versus Rama Krishna, reported in AIR 1953 SC 521.
Therefore the petitioner under objection is not maintainable and liable to be
dismissed with exemplary cost, thereof, in the interest of administration of
Justice.
7.
That this written objection is made
bonafide and in the interest of administration of Justice.
It is therefore prayed that your Honour would
graciously be pleased to accept this written objection of the defendants and to
reject the petition under objection placed by the plaintiff, in the interest of
administration of Justice, and/ or to pass such other necessary order or orders
as your Honour may deem, fit and proper for the end of Justice.
And for this act of
kindness, the Petitioner as in duty bound shall ever pray.
Verification
I, Shri Ashim Krishna
Das Mondal, being the defendant no. 1, in the above referred Suit, conversant
and acquainted with the material facts of the Suit. I made this written
objection against the petition placed by the plaintiff, for myself and on
behalf of the defendant nos. 2, 3, 4, and 5, in the Suit. I Sign, and verify
this written objection on 10th day of November’ 2022, at Baruipur
Court premises.
AFFIDAVIT
I, Ashim Krishna Das Mondal, Son of
Late Sudhamoy Das Mondal, aged about 61 years, by faith Hindu, by Occupation
Business, residing at Village Sonarpur Gorkhara Hatuipara, Ward no. 10, Post
Office & Police Station – Sonarpur, Kolkata – 700150, District – South 24
Parganas, do hereby solemnly affirm and says as follows;
1.
That I am the defendant no. 1, herein
in the present Civil Suit. I am conversant and acquainted with the material
facts in the Suit. I am authorized by the defendant no. 2, 3, 4, and 5, herein.
I am competent to swear this affidavit on their behalf as well as on my behalf.
2.
That the contents of paragraph number
1, 2, 3, & 4, are true to the best of my knowledge and belief and the rests
are my humble submissions before the Learned Court.
That
the above statements are true to my knowledge and belief.
DEPONENT
Identified
by me,
Advocate
Prepared
in my Chamber,
Advocate
Date
: 10th day of November’ 2022
Place
: Baruipur, South 24 Parganas
N
O T A R Y
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