Research › Search › Judgment

Calcutta High Court · body

2000 DIGILAW 327 (CAL)

Sudipto Sarkar v. Barun Kumar Chatterjee

2000-07-07

SAMARENDRA NATH BHATTACHARJEE

body2000
JUDGMENT The respondent herein filed an application for removal of the petitioner from the guardianship of his minor daughter before the learned District Judge, Alipore and that petition was registered as Misc. Case No.7 of 1997. In that Misc. Case, the petitioner also filed an application for further modification of the consent order dated 7.4.92 as modified on 6.4.93 to the effect that the respondent should be not permitted to meet the minor child more than once a month. The learned District Judge, Alipore disposed of the said application of the petitioner after hearing both the sides by his order No. 25 dated 30.7.97. The respondent was very much aggrieved by the said order of the learned District Judge but instead of taking recourse to legal remedies sent representations to the Chairman, Human Rights Commission, Hon'ble Chief Justice of India, Hon'ble Acting Chief Justice of Calcutta High Court with a copy to learned District Judge, Alipore. 2. In that representation dated 10.9.97, the respondent leveled various allegations against the learned District Judge to the effect that "the consent was neither given nor can be ascribed to him by any prudent person", that he has a feeling that he "shall not get Justice from the judiciary though his Lawyers were of the view that this could be set right from the Higher Courts or some other Courts or transfer of the case", that the learned District Judge "has created a gap which cannot be compensated by any other means and that this is how the judiciary is doing out injustice to him and that he has grave doubts as to whether Justice would at all be done in this case". On 19.12.97 by his order No. 31, the learned District Judge directed to the learned Lawyer-respondent to clarify the stand taken by his client in the light of the letters on record but by an order No. 33 dated 23.2.98, the case was transferred to the 7th Court of Additional District Judge, Alipore by the successor District Judge. The Misc. Case was registered afresh as Misc. Case No. 9/98 in the transferee Court. The transferee Addl. The Misc. Case was registered afresh as Misc. Case No. 9/98 in the transferee Court. The transferee Addl. District Judge, 7th Court by his order No. 35 dated 4.4.98 directed that the clarification as sought for by the learned District Judge in view of the conduct of the petitioner must be brought on record being supported by an affidavit whereupon this Court shall consider if such clarification of the petitioner would be acceptable or not. The matter ultimately came up for hearing before his successor Sri S. K. Bhadra, Addl. District Judge, Alipore on 21.8.99 when the peremptory hearing of the Misc. Case No. 9/98 was taken up. An application for drawing up contempt proceedings against the respondent herein was filed by the petitioner. It was urged on his behalf that this application should be heard first before the learned Court proceeded with the petition for revocation of guardianship and other applications filed therein. The petitioner herein also filed another application challenging the maintainability of the revocation application. The respondent herein also filed an application for amendment of the revocation application. The learned Addl. District Judge was, therefore, confronted with the question whether the representation along with the clarification by an affidavit filed on behalf of the alleged contemner should be considered in terms of order dated 4.4.98 before proceeding with the main application for revocation. 3. The learned Court answered the question by holding as under :- "So far as the petition for Contempt of Court is concerned, I believe that would be a separate proceeding and may not have any link for discontinuation of the hearing of the original suit and, therefore, I believe that if the case is found maintainable, in that case for the pendency of such petition for referring the matter to the Hon'ble Court, the peremptory hearing of the suit may not be stayed. The only point that has to be decided prior to any other order, is to see as to whether the suit is maintainable or not and, therefore, fix on 11.11.99 for hearing of the said petition and the petition under Order 6 Rule 17 of the C. P. Code." 4. Against this order, the present revisional application has been filed by the guardian maternal uncle as petitioner. 5. Mr. Against this order, the present revisional application has been filed by the guardian maternal uncle as petitioner. 5. Mr. Pal, the learned Counsel appearing on behalf of the petitioner has contended that the learned Judge bas acted beyond jurisdiction by deviating the course of action contemplated to be taken in the order of the Court dated 4.4.98. According to him, the learned Judge has failed to appreciate that the contemner having expressed his lack of confidence in the Judge and the judicial system doling out injustice is not entitled to seek Justice in the self-same matter and the parties to the his cannot get rid of apprehension that the Justice would be meted out to them by the Court without fear and favour when copies of such representations before extra Judicial forum are lying on record without being disposed of. 6. He has further argued that the contimacious representation and the affidavit accusing the Court of abusing the process of Justice and tampering with evidence constitutes Contempt of Court under Contempt of Court's Act and such contempt matter must be disposed of by the Court before the main petition for revocation is taken up for hearing. In this respect, he cited a ruling reported in (1) 1998(8) SCC 640 , wherein the Apex Court held that the contempt applications should be disposed of first and the pending appeal should not be taken up before such disposal. 7. The learned Counsel for the respondent has submitted that the instant revisional application is not at all maintainable as the Court has no jurisdiction to entertain an application under Section 115 C.P.C. unless there is jurisdictional error in deciding the case and in the instant application no case affecting the rights of the parties has been decided. This Court cannot convert itself to a writ Court under Article 227 of the Constitution and the High Court will not interfere with the impugned order unless it is established that there was a substantial failure of Justice and that the petitioner has suffered prejudice even if other conditions viz. (i) case has been decided and (ii) error of jurisdiction are duly established. He has cited the decisions reported in (2) AIR 1973 SC 1096 para 5 ; (3) AIR 1970 SC 406 ; (4) AIR 1964 SC 497 ; (5) AIR 1997 SC 203. 8. (i) case has been decided and (ii) error of jurisdiction are duly established. He has cited the decisions reported in (2) AIR 1973 SC 1096 para 5 ; (3) AIR 1970 SC 406 ; (4) AIR 1964 SC 497 ; (5) AIR 1997 SC 203. 8. Upon hearing the learned Counsel of both the sides and on perusal of the materials-on-record I am of the opinion that the learned trial Judge has acted with material irregularity arising out of wrongful exercise of jurisdiction. in the affidavit, the respondent has not only justified his action but further accused the Court of tampering with record, abusing the process of Justice and unbefitting manner of transacting the business of the Court. When a party has expressed lack of confidence in the Judge and the judiciary leveling scurrilous allegations against the Court, the Court has no jurisdiction to decide the disputes between the parties. The reason is that the Court itself may not be free from the apprehension that in case, the decision goes against the representationist it might be held out as another instance of doling out injustice and such apprehension has the likelihood of influencing his order. The opposite party may have the same feeling or at least there is every likelihood of his being under the same impression that Justice may not be done to him and the existence of such likelihood is sufficient ground for such abstinence from proceeding with the case as this apprehension impedes the course of administration of Justice to be rendered without fear and favour. Before considering the main case, the Court below must be satisfied whether the affidavit and the representations tend to scandalise the Court and the judicial system and whether publication of such allegations tend to lower down the authority of the Court in the esteem of the 'public and to consider whether such act comes within the definition under Section 2(c) of the Contempt of Court's Act, 1971. In case, the Court is so satisfied the Court must deal with the matter in accordance with the law and shall not proceed with hearing of the dispute until such disposal or until the respondent purges himself of the contempt in some way or other to the satisfaction of the learned Court below. In case, the Court is so satisfied the Court must deal with the matter in accordance with the law and shall not proceed with hearing of the dispute until such disposal or until the respondent purges himself of the contempt in some way or other to the satisfaction of the learned Court below. I, therefore, dispose of the revisional application by setting aside the order impugned and by directing the Court below to dispose of the representation and the affidavit in terms of the order passed by the Court itself on 4.4.98 and till such disposal the hearing of the applications for revocation of guardianship and other applications filed in connection therewith shall remain stayed. There will be no order as to costs.