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Pasupati Nath Chatterjee and ors. Vs. Executive Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 1528 of 1981
Judge
Reported inAIR1981Cal391,85CWN1044
ActsConstitution of India - Article 227; ;Code of Civil Procedure (CPC) , 1908 - Order 43, Rule 1
AppellantPasupati Nath Chatterjee and ors.
RespondentExecutive Officer and ors.
Appellant AdvocateA.K. Dhar and ;Jyotirmoyee Guha, Advs.
Respondent AdvocateTapash Ch. Roy and ;Aloke Chakraborty, Advs.
Cases ReferredNarayan v. Sunil
Excerpt:
- .....code reiected. against that order, the present revi-sional application was filed according to the provisions of article 227 of the constitution of india. 2. the learned advocate appearing on behalf of the petitioners has contended that the record shows that everything was done in a mala fide manner. the matter was very urgent relating to election. so, a prayer for temporary injunction was made. though the application for ad interim injunction was filed by giving notice to the other side as far back as 21st april. 1981. the learned munsif illegally refused to pass ad interim injunction on the 23rd april, 1981. then the court fixed 13th may, 1981, for hearing the application for temporary injunction, and directed the defendant to file objection by the date fixed. although the matter was.....
Judgment:
ORDER

B.N. Maitra, J.

1. The petitioners are the plaintiffs. They filed a suit against the Garden Reach Municipality and others according to the provisions of Order 1, Rule 8 of the Civil P. C. Eventually, an application for a temporary injunction was prayed for. On the 26th May, 1981. that prayer was refused and the plaintiffs' application under Order 39, Rules 1 and 2 of the Code reiected.

Against that order, the present revi-sional application was filed according to the provisions of Article 227 of the Constitution of India.

2. The learned Advocate appearing on behalf of the petitioners has contended that the record shows that everything was done in a mala fide manner. The matter was very urgent relating to election. So, a prayer for temporary injunction was made. Though the application for ad interim injunction was filed by giving notice to the other side as far back as 21st April. 1981. the learned Munsif illegally refused to pass ad interim injunction on the 23rd April, 1981. Then the Court fixed 13th May, 1981, for hearing the application for temporary injunction, and directed the defendant to file objection by the date fixed. Although the matter was extremely urgent and it had already been notified that the election would be held on the 31st May, 1981. no objection was filed on the 13th May, 1981. The hearing was illegally adjourned to the 26th May, 1981. The Municipality was asked to file a written objection on that date. The learned Munsif completely overlooked the important aspect that the municipal election was to be held on the 3lst May last. Then on the 26th May, 1981, that matter was heard. But no order was passed on that date. On the 27th May last, the learned Munsif passed a back dated order showing that the application had been dismissed on the 26th May, 1981. At once the plaintiffs prayed for obtaining an urgent certified copy of the order in question. But no such copy was supplied till the 2nd June, 1981. In such circumstances, the petitioners were compelled to move this Court under Article 227 of the Constitution of India along with a typed copy of the order in question.

3. The learned Advocate appearing on behalf of the petitioners has further contended that the power of Superintendents envisaged by the provisions of Article 227 of the Constitution is very wide and such power is not curtailed or restricted by the provisions of any other law. Reference has been made to the case of Walaiti Ram v. Siri Kri-shan in : AIR1976Delhi50 to show that where the plaint in a suit for accounts fails to give the valuation for the purposes of jurisdiction, the Court can direct the plaintiff to value it at a specified amount. Even if the plaintiff omitted to file a revision or review against that order, the High Court can interfere under Article 227 of the Constitution. It has also been stated in that case that it is a settled law that the ambit of the power under that article is so wide as to permit interference in cases where the ends of justice do require such a course, even in cases where an appeal lay. but was not filed. or an appeal had become time-barred. It has, thus, been contended that the present revisional application under Article 227 of the Constitution is tenable in law.

4. The prayer has been opposed by the learned Advocate appearing on behalf of the opposite party.

5. It is true that the learned Munsif did not show proper vigilance in the matter. But if the plaintiffs-petitioners had any genuine grievance in this respect, they could easily bring this matter to the notice of the learned District Judge. 24 Parganas, and state that the application for certified copy of the order in question was not being granted in time. The same prayer, which has been made in the High Court, could be made in that Court by putting in a typed copy of the order in question. If this view of the Delhi High Court is to be accepted, then the provisions contained in Order 43, Rule 1 (r) of the Civil P. C. will be rendered nugatory. It seems that with a view to circumventing that Rule, the present revisional application has been filed bv the plaintiffs-petitioners under Article 227 of the Constitution of India.

6. It has been stated on behalf of the petitioners that even in such case, the High Court can interfere under that article suo motu. Now. it is not a criminal revision. So. one fails to understand how in a civil case the High Court can do so by ignoring the provisions of Order 43. Rule 1 (r) of the Code.

7. In the case of Narayan v. Sunil reported in (1977) 4 Cal H C (N) 882 an order passed under Section 17 (3) of the West Bengal Premises Tenancy Act was sought to be challenged under Article 227 of the Constitution of India. It has been stated that the petitioners' remedy is to move under Section 115 of the Code and not under Article 227 of the Constitution of India. In this case, the plaintiff's proper remedy was to move the learned District Judge first and file an appeal in that Court with a plain copy of that order. If that application had been rejected or not entertained by that Court, then a different position would have ensued. But since the plain implication of filing this application is to circumvent the provisions of Order 43. Rule 1 (r) of the Code, it must be held that this revi-sional application is not maintainable in law.

8. The contention put forward on behalf of the petitioners is not accepted. Hence, no discussion on the merits of the revisional application is called for.

9. The Rule is, therefore, discharged without any order as to costs.


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