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Smt. Mamata at Mala Bhandari. Vs. Sri Sanjib Bhattacharjee and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata Appellate High Court
Decided On
Case NumberC.O. No. 3942 of 2007
Judge
AppellantSmt. Mamata at Mala Bhandari.
RespondentSri Sanjib Bhattacharjee and ors.
Advocates:Mr. Supriya Chatterjee, Adv
Excerpt:
.....of the industrial court, in a petition which invoked articles 226 and 227 of the constitution, a learned single judge of this court delivered judgment which was questioned in a letters patent appeal. writ jurisdiction under article 226 can be exercised for that purpose. is it a correct proposition of law that jurisdictional errors or errors resulting in miscarriage of justice committed by subordinate courts/tribunals can only be corrected by this court in exercise of powers under article 227 of the constitution of india. certiorari: the power of the high court to issue a writ of certiorari, among other writs, is preserved and recognized by article 226 of the constitution. justice sarkar rejected the argument that high courts were inferior courts as appeals lie from them to the supreme..........the petitioner has also challenged the order dated february 10, 2006 passed by the learned trial judge. the plaintiffs/opposite party nos.1 to 6 instituted a title suit being title suit no.74 of 1994 against the petitioner being the defendant no.2 along with other opposite party nos.7, 8 and 9 being the defendant nos.1, 3 & 4 therein for declaration, recovery of possession and permanent injunction. in that suit, the defendant is contesting by filing a written statement. the suit was at the stage of peremptory hearing. at that time, the plaintiff came up with an application for addition of party. another application was also filed by him for amendment of the plaint. both the petitions were allowed by the learned trial judge by the order dated february 10, 2006. subsequently, on.....
Judgment:
1. This application is at the instance of the defendant/petitioner and is directed against the order dated July 16, 2007 passed by the learned Civil Judge (Senior Division), Alipore, District South 24 Parganas in Title Suit No.74 of 1994. By the said application, the petitioner has also challenged the order dated February 10, 2006 passed by the learned Trial Judge. The plaintiffs/opposite party nos.1 to 6 instituted a title suit being Title Suit No.74 of 1994 against the petitioner being the defendant no.2 along with other opposite party nos.7, 8 and 9 being the defendant nos.1, 3 & 4 therein for declaration, recovery of possession and permanent injunction. In that suit, the defendant is contesting by filing a written statement. The suit was at the stage of peremptory hearing. At that time, the plaintiff came up with an application for addition of party. Another application was also filed by him for amendment of the plaint. Both the petitions were allowed by the learned Trial Judge by the order dated February 10, 2006. Subsequently, on July 16, 2007 the defendant no.2 filed an application for stay. That was rejected by the order impugned. Being aggrieved, this application has been preferred.

2. Now, the point for consideration is whether the learned Trial Judge was justified in passing the impugned orders. Upon hearing the learned Advocate for the petitioner and on perusal of the materials on record, I find that the impugned orders lays down two matters; one for addition of party and another for amendment of the plaint. The said suit has been filed against the Biren Roy Charitable Trust and others for the reliefs already stated. The last two beneficiaries already expired.

3. Thereafter, the defendant no.1 was to be represented by somebody. The learned District Judge, South 24 Parganas appointed the official trustee as administrator pendente lite. Under the circumstances, the application under Order 1 Rule 10(2) of the C.P.C. was filed by the official trustee of West Bengal and it had been supported by an affidavit. Since there was none to represent the defendant no.1 after the death of the last two beneficiaries, I am of the view that under the circumstances the learned Trial Judge has rightly allowed the application under Order 1 Rule 10(2) of the C.P.C. filed by the official trustee.

4. So far as the matter of amendment of the plaint is concerned, I find that amendment is a consequential prayer post appointment of the official trustee as administrator of the properties of the defendant no.1. Therefore, though this application has come at the stage of recording evidence on behalf of the plaintiff, in consideration of the situation, I am of the view that the learned Trial Judge was perfectly justified in allowing the application for amendment of the plaint.

5. The learned Trial Judge has, therefore, rightly exercised the power vested in him. He has not exceeded the jurisdiction in allowing the two applications.

6. Consequently, the order dated July 16, 2007 which is nothing but a formal order does not call for any interference. In fact, it is not at all a revisable order. The defendant no.2 was absent on repeated calls and so his petition for stay was rejected at 3.45 p.m. There is no illegality in dismissing the said petition for stay when the defendant no.2 was found absent on repeated calls.

7. In that view of the matter, I am of the opinion that there is nothing to interfere with the impugned orders. So, this application is meritless. It is, therefore, dismissed.

8. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.


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