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Nanda Dulal Mahato Vs. Hazari Lal Mondal - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberC.R. No. 4626 of 1973
Judge
Reported inAIR1975Cal127,78CWN916
ActsCode of Civil Procedure (CPC) , 1908 - Section 115
AppellantNanda Dulal Mahato
RespondentHazari Lal Mondal
Appellant AdvocateHarasit Chakraborty, Adv.
Respondent AdvocateBimal Kumar Dutta, Adv.
Cases Referred and Abbasbhai v. Golam Nabi
Excerpt:
- .....was made absolute on the 11th of december, 1973. the petitioner preferred an appeal before the learned district judge at alipore being miscellaneous appeal no. 898 of 1973 against the said order of the munsiff dated 11-2-1973. the learned appellate court, however, did not issue an interim order of stay before the final hearing of that miscellaneous appeal. the impugned order of the learned district judge which is challenged in this rule is as follows:'order no. 2 of 19-12-73. the appellant files a petition supported by affidavit with annexures praying for stay of operation of the order appealed against for the reasons stated therein. heard the learned lawyer for the appellant. perused the petition and also the affidavit. considered. issue notice upon the respondent calling upon him.....
Judgment:
ORDER

Sudhamay Basu, J.

1. This rule relates to an order of the District Judge at Alipore dated the 19th of December, 1973, refusing to grant an ad interim stay pending the hearing of the appeal.

2. The petitioner's case is that he was permanent Headmaster of Mondal Para High School. His service was ap-proved by the West Bengal Board of Secondary Education in 1968. Thereafter he was forced to resign on 21-1-1969. The respondent Sree H. L. Mondal, a special cadre teacher, was appointed Headmaster by the Managing Committee with effect from 16-8-1971 but the same was disapproved by the District Inspector of School by letters dated 12-6-1972 and 27-7-1972. The respondent, according to the petitioner, did not have the requisite qualification to be a Headmaster on 15-8-1971. After representation made by the petitioner the District Inspector of School wanted a report from the Secretary of the Managing Committee about the petitioner's resignation. After due enquiries the Director of Board of Instruction directed the District Inspector to allow the petitioner to function as the Headmaster. The District Inspector sent letters to that effect and the Managing Committee by resolution dated the 19-4-1973 allowed the petitioner to resume his duties. Apprehending that the petitioner might join as Headmaster the respondent filed a suit for a permanent, injunction restraining the petitioner from interfering with his function as Headmaster. The learned Munsiff passed an ad interim order of injunction restraining the petitioner on 30-9-1972. He also injuncted the petitioner from entering the School premises. The ex parte order was made absolute on the 11th of December, 1973. The petitioner preferred an appeal before the learned District Judge at Alipore being Miscellaneous Appeal No. 898 of 1973 against the said order of the Munsiff dated 11-2-1973. The learned Appellate Court, however, did not issue an interim order of stay before the final hearing of that miscellaneous appeal. The impugned order of the learned District Judge which is challenged in this rule is as follows:

'Order No. 2 of 19-12-73. The appellant files a petition supported by affidavit with annexures praying for stay of operation of the order appealed against for the reasons stated therein. Heard the learned lawyer for the appellant. Perused the petition and also the affidavit. Considered. Issue notice upon the respondent calling upon him to show cause within seven days from the date of service thereof as to why the prayer as made above should not be granted Requisites to be put in forthwith.

3. It appears that the appellant was already injuncted by the order dated the 30-9-1972. In the circumstances no order of interim stay is granted.'

4. Mr. Dutt, the learned Advocate appearing to oppose the rule, contended that the present case did not merit interference under Section 115 of the Code of Civil Procedure. He cited a number of well known decisions of the Supreme Court and the Court readily agrees with him that an erroneous decision even with regard to law would not necessarily furnish a ground for interference unless it concerned the jurisdiction of the Court. Mr. Dutt also contended that the impugned order must also involve a decision as to some right or obligation. The cases of Ratilal v. Ranchhodbhai, reported in : AIR1966SC439 . Hindusthan Aeronautics v. Ajit Prosad, reported in : (1972)ILLJ170SC , Manindra Land Buildings v. Bhutnath Banerjee, reported in : [1964]3SCR495 and Abbasbhai v. Golam Nabi, reported in : [1964]5SCR157 may be referred to in this connection.

5. It may be made clear at once that ordinarily this Court would refuse to interfere with an interlocutory order which is essentially discretionary in nature and does not concern any question of jurisdiction. Initially the Court was inclined to accept Mr. Dutt's contention about the propriety of interference in such a case but further considerations of the facts and circumstances made the Court change its mind. From the statement of facts and submissions made in the petition and the affidavits and the claims and counter-claims therein which do not unfortunately confine themselves to the essentials -- ultimately a set of facts emerge, presented from the point of view of the petitioner, which seem to be rather extraordinary in some respects. Neither the school committee nor the D. P. I. and other authorities essential for adjudication of the rights of the plaintiff to act as the Headmaster vis-a-vis the petitioner are made parties in the concerned suit. In fact the maintainability of the suit in that respect seems to be in doubt, as Mr. Chakraborty the learned lawyer in support of the rule, points put. On the other hand the petitioner is now by virtue of the approval of the D. P. I. and the invitation of the school committee, prima facie, in a position to join as Headmaster of the school, proper working of which is also a matter of great concern. An injunction against the petitioner on the basis of such a suit, prima facie, incompetent to grant proper relief is thus likely to cause great hardship and jeopardise the interest of the petitioner and the school. On the other hand it is of no help to the respondent plaintiff in establishing or securing his right to be the Headmaster. That is the case with which the petitioner has come before this Court. 'Facts, said Pirandello, the Novel Laureate, 'are like sacks' which cannot stand on their own'. It is the perspective or the point of view from which the facts are seen which give them significance. In the context of the factsas viewed above the grant of injunction by the lower Court assumes a magnitude which in imposing hardship far exceeds the limited scope of the suit. It is true that the learned Lower Court had, prima facie, competence to pass an interlocutory order in a suit but what it failed to visualise is that failure to protect the petitioner by such a stay against the injunction may occasion a prejudice disproportionate to the scope of the suit. No authority has been cited before this Court nor am I aware of any which would cover the facts of this case but it appears to me that on principle -- if such a principle may be evolved -- an interlocutory order cannot be allowed to overreach the bounds of a suit inherently limited in scope. That seems to be precisely the matter in this case. It may, therefore, be viewed as an order tending to overstep the jurisdiction of the suit itself and liable to be interfered with in revision.

6. Prima facie it might seem that a show cause notice is of short interval but experience shows, as in this case, that months elapse sometimes before such a matter is heard.

7. Another aspect of the order which seems curious is that at the end of order the learned District Judge mentions that 'the appellant was already injuncted by an order dated the 30th of September, 1972'. If the learned District Judge thought that there was an injunction in favour of the petitioner who was a Defendant at the lower Court he was completely in error. If, however, he thought that the injunction was against the present petitioner then its mention was anomalous. It appears that the interim order of injunction dated the 30th of September, 1972 passed initially by the learned Munsiff against the present petitioner was later on confirmed on 19-12-1973 against which the petitioner came up in appeal before the learned District Judge. The reference to this alleged injunction dated the 30th of September, 1972, makes the order incongruous. The Court regrets to find substance in the contention that the said reference is either irrelevant or erroneous or misleading and indicates non-application of the mind.

8. The refusal to grant a stay in the circumstances of the case, as explained above, is of some extraordinary import. In the ultimate analysis the order seems to involve paralysing or adversely affecting a person's legitimate rights on the basis of a suit limited in its nature and scope inasmuch as the same did not confer jurisdiction on the Court to adjudicate the question of title of the rival parties in a proper way.

9. In view of what is stated aforesaid the Court makes the rule absoluteand sets aside the impugned order and grants an ad interim stay till the Misc. Appeal is heard by the learned District Judge.

10. The Court, however, makes it clear that its observation on the facts are made only, prima facie, and need not influence the trial Court to come to a finding of its own on the basis of fuller and more adequate materials to be placed before it. There will be no order as to costs.


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