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Kishen Dayal Chaukidar Vs. Darjeeling Municipality - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal574,103Ind.Cas.63
AppellantKishen Dayal Chaukidar
RespondentDarjeeling Municipality
Cases ReferredAbdul Matlab v. Nandalal A.I.R.
Excerpt:
- .....the order of the deputy magistrate and ha rejected the application on the 31st march 1926. the present rule was obtained from this court on the 11th august 1926 calling upon the deputy commissioner and the opposite party to show cause why the order complained of should not be set aside. on the face of it this application is too stale. but it is argued by the learned counsel appearing for the petitioner that inasmuch as one division bench of this court has issued the rule we are not entitled to question the propriety of the order on the ground that the application was made too late. we have considered the matter carefully inasmuch as the point of law raised in the case is one of some importance and we have coma to the conclusion that we should not in the present case depart from the.....
Judgment:

Suhrawardy, J.

1. The order complained against in this case was passed by the Deputy Magistrate of Darjeeling on the 21st December 1925. The order was passed under Section 244(S) of the Darjeeling Municipal Act (1 of 1900, B.C.) directing the demolition of an unauthorised structure in the petitioner's house. The Sessions Judge of Darjeeling was moved against the order of the Deputy Magistrate and ha rejected the application on the 31st March 1926. The present Rule was obtained from this Court on the 11th August 1926 calling upon the Deputy Commissioner and the opposite party to show cause why the order complained of should not be set aside. On the face of it this application is too stale. But it is argued by the learned Counsel appearing for the petitioner that inasmuch as one Division Bench of this Court has issued the Rule we are not entitled to question the propriety of the order on the ground that the application was made too late. We have considered the matter carefully inasmuch as the point of law raised in the case is one of some importance and we have coma to the conclusion that we should not in the present case depart from the practice of this Court. That an application to this Court against an order of the Court below should be made within 60 days from the date of the order is now well established by authorities. It is a question of practice no doubt; but the practice is uniform and only in special circumstances it can be departed from. See the cases of In the matter of Khetra Mohun Giri [1916] 43 Cal. 1029 and Raj Chandra Bhuiya v. Emperor [1916] 25 C.L.J. 564.

2. Our attention has been drawn to the case of Abdul Matlab v. Nandalal A.I.R. 1923 Cal. 641 and on the authority of that case it is argued that since the High Court has chosen to issue a Rule it should be heard on the merits. There an application was made to this Court and a Rule granted against an order passed by a Magistrate of the 1st class on appeal from a Subordinate Magistrate. It was pointed out that the proper procedure was to move the Sessions Judge for a reference to this Court. This the petitioner had not done, and it was argued that the Rule should be discharged upon that ground. The learned Judges held that in the circumstances of the case the High Court having issued the Rule it should be heard on the merits. The consideration that prevailed with their Lordships to come to that conclusion are very different from those arising in the present case. There the matter was to be finally decided by the High Court whether it was by way of a reference by the Sessions Judge or on an application by a party to the High Court. It was a mere matter of procedure, and the learned Judges rightly thought that it should not stand in the way of the petitioner obtaining relief in that case.

3. In the present case an application was made and a Rule obtained ex parte. The opposite party has been called upon to show cause, and one of the causes shown is that the application is made out of time. We fail to see why we should not take the objection of the opposite party into consideration and decide the point in his presence. We are not, moreover, sure that the attention of the learned Judges, who granted this Rule, was drawn to the various dates on which the orders of the Courts below were passed. In the body of the petition it is stated that the application should have been made within 60 days from the Magistrate's decision, but it was not made within that time due to an ever-sight on the part of the petitioner's legal advisers. An affidavit was filed sworn by a Barrister practicing in Darjeeling in which he said that he was all along under the impression that 60 days from the Sessions Judge's order was the period for moving the High Court. It is possible that this affidavit caught the eye of the learned Judges and they thought that the present application must have been made within 60 days from the order of the Sessions Judge. As a matter of fact the application was made about five months after the order of the Sessions Judge and about eight months after the order of the Magistrate. We also fail to find any special circumstance in this case which will entitle us to extend the time in favour of the petitioner. As we have said, the petitioner simply says that the application could not be made in time owing to the oversight on the part of the petitioner's legal advisers. That is hardly a ground for departing from the settled practice of this Court. This Rule must therefore be discharged.

Cammiade, J.

4. I agreed.


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