BIPLAB KAR vs MALATI DEB

st
31 August,
2026
(AK)

15
F.M.A.T 138 of 2026
IA No: CAN 1 of 2026
CAN 2 of 2026

Biplab Kar
Vs.
Malati Deb


Mr. Somnath Gangopadhyay
….for the appellant.

Mr. Malay Bhattacharyya
...for the respondent.




1. Affidavit-of-service filed in court today be kept on
record.
2. On the prayer of learned counsel for the appellant,
leave is granted to the learned Advocate-on-record
for the appellant to rectify the caption of the
condonation application by inserting the FMAT
number instead of SAT Number.
3. The reason for the delay, as explained in the
condonation application, is that initially only the
First Appellate court’s papers were handed over to
learned counsel. Upon being so asked, the
appellant handed over thereafter the trial court
papers to the learned Advocate, which caused the
delay in filing the appeal.
4. Upon hearing learned counsel for the parties, we
are satisfied of the sufficiency of the explanation for
the delay.

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5. Accordingly, CAN 1 of 2026 is allowed, thereby
condoning the delay in preferring FMAT 138 of
2026.
6. The appeal is now taken up for hearing under
Order XLI Rule 11 of the Code of Civil Procedure.
7. The present challenge has been preferred against a
judgment of remand.

8. The trial court decreed a suit for eviction of licensee
in favour of the respondent, the sister of the
appellant.
9. By a gift deed, the father of the parties, the
admitted original owner of the suit property, had
donated the suit property in favour of the
respondent.
10. Learned counsel for the appellant argues that a
certified copy of the said deed was furnished as
evidence and also erroneously admitted as an
exhibit in the suit, in the teeth of the denial of the
plaintiff’s witness no.2, an employee of the
Registration Office, as to the validity of the same.
11. Learned counsel for the appellant argues that in
such circumstances, the Appellate Court ought to
have set aside the trial court’s decree outright,
being based on a disputed document.
12. However, we find from the records that before the
First Appellate Court, the plaintiff/respondent
produced the original of the gift deed in favour of

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the plaintiff/respondent by way of additional
evidence, with an accompanying application under
Order XLI Rule 27 of the Code of Civil Procedure,
on which premise the learned Trial Judge disposed
of the said application and permitted the parties to
adduce additional evidence and granted liberty to
the parties to amend their pleadings, primarily on
the basis of such original.

13. It is apparent that by application of Order XLI Rule
27(1)(b) of the Code of Civil Procedure, the original
of the disputed document is germane and the most
relevant document for deciding the suit and
accordingly was deemed to be required by the
Appellate Court for a proper and complete
adjudication of the lis .
14. In such view of the matter, this court does not find
any illegality in the judgment of remand by the
First Appellate Court, thereby permitting both
parties to lead additional evidence.

15. In any event, it will be open to the appellant to
dispute the admissibility and/or evidentiary value
of the original gift deed, if furnished in evidence in
the trial court after remand by the respondent, and
as such, no valuable right of the appellant is
affected in that sense.

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16. Thus, we do not find any ground of interference
with the impugned judgment and/or any reason for
admission of the appeal.
17. Accordingly, FMAT 138 of 2026 is dismissed under
Order XLI Rule 11 of the Code of Civil Procedure.
18. CAN 2 of 2026 stands disposed of accordingly.
19. There will be no order as to costs.

20. Urgent Photostat certified copies of this order, if
applied for, be given to the parties upon compliance
of all requisite formalities.

(Sabyasachi Bhattacharyya, J.)


(Sandip Kumar De, J.)