IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Ravi Krishan Kapur And The Hon’ble Justice Chaitali Chatterjee (Das) F.A. 79 of 2014 Manju Roy & Ors. VS. Sanjoy Roy & Anr. For the appellants : Mr. Tarak Nath Halder For the respondents : Mr. Dhananjay Nayak Hearing concluded on : 15 July, 2026 Judgement on : 15 July, 2026 Ravi Krishan Kapur, J.:- 1. This appeal is directed against an order dated 9 April, 2013 dismissing the suit on the ground of maintainability. 2. This is the third round of litigation between the parties. The first suit being T.S. No. 35 of 1970 had been filed by the father of the respondent no. 1 Sunil Ranjan Roy for partition of the larger family estate. The second suit being T.S. No. 112 of 2003 was filed by the appellant herein for partition of premises no. 19A/1A and 19A/1B, Kankurgachi Second Lane, P.S. Phoolbagan, Kolkata – 700 054. By a judgment and decree 2 dated 13th November, 2009, the second suit had been dismissed on the ground that the suit property had already been partitioned. It is an admitted fact that there has been no appeal against the decree dated 13th November, 2009 and the same has become final and binding. 3. The appellant herein has filed this third suit being T.S. No. 235 of 2011 wherein the impugned judgment and decree came to be passed. Upon filing of the third suit, the respondent had filed an application raising a point of maintainability as to whether the third suit was in respect of the self-same suit premises which was the subject matter of the second suit T.S. No. 112 of 2003. 4. Significantly, in the application filed by the respondent only a hearing on the point of maintainability was sought for when the final order of dismissal of the suit came to be passed. The appellant had also filed a written objection. 5. By the impugned judgment and decree, the Learned Judge has only narrated the fact that a prior suit i.e. Suit No. 112 of 2003 had been dismissed on the ground that the suit property had already been partitioned and allotted to the respondent by and under the decree dated 13 November 2009. There are no reasons recorded in the impugned order. 6. It is submitted on behalf of the appellant that the procedure adopted by the Trial Court in dismissing the suit is unknown to law. There was no preliminary issue framed by Court nor any application filed under Order 3 7 Rule 11 of the Code of Civil Procedure 1908 and the Learned Court had suo motu decided the issue without affording any reasons whatsoever. 7. On behalf of the respondent, it is submitted that the impugned judgment and decree has been passed after taking into account the fact that the second suit being T.S. No. 112 of 2003 was in respect of the self same premises which was the subject matter of the earlier suit. In such circumstances, they are no grounds to interfere with the impugned judgment. 8. The most glaring infirmity in the impugned judgment is the procedure which has been adopted by the Trial Court in dismissing the suit. There was no application filed under Order VII Rule 11 of the Code of Civil Procedure 1908. There was also no preliminary issue raised by the Court before dismissing the suit. The primary contention of the appellant that the third suit in which the impugned judgment and decree has been passed was in respect of a totally different premises i.e. premises no. 19A/1B, which was not the subject matter of the previous suit has not even been adjudicated upon in the impugned judgment. In any event, this was a mixed question of fact and law and could not have been decided in a summary manner. This was not a pure question of law and also required consideration of the pleadings filed by the parties. (Civil Appeal No. 1537-1538 of 2019 arising out of SLP (c) No. 15585- 4 15586 of 2017, Deepak Tandon and Another vs. Rajesh Kumar Gupta unreported decision dated 7 February 2019). 9. There are also no reasons in the impugned order and this goes to the root of the matter. After recording the submissions made on behalf of the parties and the fact of the prior suit as well as the decree passed therein, the impugned judgment and decree merely records that “on consideration of the facts and circumstances” the suit is dismissed. 10. It is well settled that reasons constitute the soul of a judicial decision. Reasons are the safeguard against the ipse dixit of the decision making process. They discuss how the judicial mind has been applied to the matter in issue and convey the nexus between the matters that have been considered and the conclusion based thereon. The justification and the reasonableness of a conclusion depend on the reasons given in support thereof. (Union Public Service Commission vs. Bibhu Prasad Sarangi and others (2021) 4 SCC 516 and Uniworth Resorts Ltd. and another vs. Ashok Mittal and others 2007 SCC OnLine Cal 535). 11. The casual and cursory manner which in the Trial Court has dismissed the suit is unsustainable and contrary to the procedure enshrined under the Code of Civil Procedure 1908. The impugned judgment and decree is set aside. Keeping in view the long pendency of this appeal, the Trial Court is directed to expeditiously dispose of any preliminary issue raised in accordance with law whether in an application under 5 Order 7 Rule 11 of the Code of Civil Procedure or as a preliminary issue under Order XIV of the Code of Civil Procedure 1908. 12. It is made clear that the impugned judgment and decree has been set aside on the ground of violation of principles of natural justice and following a procedure unknown to law. It is clarified that there has been no adjudication on the merits of the case. The Trial Court is at liberty to decide any proposed application or point of maintainability raised on behalf of the respondent strictly in accordance with law. All points on the merits of the issue of maintainability are left open. 13. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. (Ravi Krishan Kapur, J.) I agree. (Chaitali Chatterjee (Das), J.) KAUSHIK CHATTERJEE