- (1.) HEARD the parties. Sri Asit Kumar Sanyal, learned counsel for the petitioner, challenges the order no. 46 dated 17th of September, 2008 passed by the learned Second Civil Court (Senior Division) at Barasat in Title Suit No. 33 of 2005. By the said impugned order the learned Second Civil Court (Senior Division), Barasat, was pleased to consider the hearing of a petition filed by the plaintiff/petitioner under Order 8 Rule 10 of the Code of Civil Procedure.
(2.) THE learned Trial Court came to the conclusion that on a careful perusal of the record it is found that both the contesting defendants have already filed their written statement. In such view of the matter, the learned Trial Court further found that the provisions of Order 8 Rule 10 of the Code of Civil Procedure are not applicable to the facts of the present case. In such view of the matter, the learned Trial Court was pleased to reject the application filed by the petitioner/plaintiff under Order 8 Rule 10 CPC praying for rejecting the written statement filed on behalf of the defendant nos. 1 and 3. Prior to considering the arguments advanced by the learned counsel for both parties, it is relevant to note that by order no. 38 dated 3rd of December, 2007 the learned Trial Court was pleased to direct completion of service return. The matter, being Title Suit No. 33 of 2005, was taken up for hearing vide order nos. 39, 40 and 41 dated 7th of January, 2008, 31st of January, 2008 and 18th of February, 2008 respectively.
(3.) THE learned Trial Court on the said dates was pleased to pass necessary direction for taking steps regarding service of summons upon the defendant no. 2. By order no. 41 dated 18th of February, 2008, the learned Trial Court was pleased to record that the defendant no. 2 has not appeared in spite of service of summons. Therefore, the suit would be heard ex parte against the defendant no. 2. The learned Trial Court was pleased to fix 30th of April, 2008 for framing of issues. Thereafter, by order no. 42 dated 26th of February, 2008 written statement was filed on behalf of the defendant no. 1 and directed to be kept on record by the learned Trial Court. The learned Trial Court was also pleased to note that copy of the said written statement was not served on the petitioner/plaintiff.;