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2006 DIGILAW 105 (CAL)

STAT OF CALCUTTA v. PRAFUL TAYAL

2006-02-22

ARUN KUMAR MITRA, BHASKAR BHATTACHARYA

body2006
BHATTACHARYA, J. ( 1 ) THIS is an application for review of the order dated 22nd September, 2004 passed by a Division Bench of this Court in MAT. No. 3031 of 2004/f. M. A. No. 2285 of 2004 along with CAN No. 7707 of 2004. ( 2 ) ALLEGING violation of the order dated 18th February, 2004 passed by a learned Single Judge disposing of a writ application filed by the present applicant, a contempt application was moved before the said learned Single judge. ( 3 ) THE learned Judge after contested hearing, ultimately, found the respondents guilty and the contempt application was disposed of by imposing penalty of fine with further direction to strictly comply with the order disposing of the writ application. ( 4 ) BEING dissatisfied, the respondents of the writ application filed the aforesaid M. A. T. No. 3031 of 2004 before the Division Bench, which was subsequently renumbered as F. M. A. No. 2285 of 2004. ( 5 ) IN connection with the aforesaid appeal, the appellants therein filed an application of stay of operation of the order impugned in the appeal and according to the appellants, their learned Advocate through his clerk tried to serve a copy of the application for stay upon the learned Advocate for the writ petitioner in the trial Court but the said learned Advocate refused to accept such copy as would appear from the affidavit-of-service filed on behalf of the appellants affirmed by the Advocate's clerk. ( 6 ) INITIALLY, an ad interim order of stay of the operation of the order imposing penalty was granted by a Division Bench and thereafter, the stay application came up for hearing before another Division Bench on 22nd September, 2004. ( 7 ) IT appears from the order sought to be reviewed that the said Division bench in the first paragraph of the order recorded the following observation:"the respondent does not appear in spite of notice; although only the application appears in our list today, in the interest of justice, we propose to dispose of the appeal also. " ( 8 ) THEREAFTER, the Division Bench after hearing only the learned advocate for the appellants set aside the order passed by the learned Single judge by treating the appeal as on "days' list". " ( 8 ) THEREAFTER, the Division Bench after hearing only the learned advocate for the appellants set aside the order passed by the learned Single judge by treating the appeal as on "days' list". ( 9 ) BY filing this application for review, the writ petitioner has alleged that the notice of the appeal was never served upon the writ petitioner and as such, he was not aware of the appellate proceedings and consequently, the order disposing of the appeal should be recalled. It is further alleged that merely a notice was served upon the learned Advocate for the writ petitioner in the trial court that a different Division Bench extended the interim order earlier granted for three weeks but in the said notice there was no indication that the matter will further appear before any other Court. ( 10 ) THE applicant, thus, prays for recalling of the order passed by the division Bench allowing the appeal. ( 11 ) THE present petition is contested by the appellants and at the time of hearing of the application for condonation of delay in filing the present application, the appellants also used affidavit thereby relying upon the affidavit-of-service affirmed by the Advocate's clerk and also annexing a further notice that a stay application would be mentioned before the Division Bench for listing of the matter for early hearing and according to the affidavit-of-service, the learned Advocate refused to accept such notice. ( 12 ) MR. Basu, the learned Advocate appearing on behalf of the appellants has vehemently opposed this application alleging that as the learned Advocate for the present applicant in the trial Court refused to accept notice, there was no mistake on the part of the Division Bench in disposing of the appeal itself on the date fixed for hearing of the application for stay. Mr. Basu contends that at the most there may be some error on the part of the Division Bench in entertaining the appeal on the date fixed for hearing of stay application, but this Bench being a co-ordinate Bench cannot enter into the merit of the order and even if, there is any error of law, appropriate remedy of the applicant lies by moving higher forum. In support of such contentions, Mr. In support of such contentions, Mr. Basu has relied upon the following decisions: (a) M/s. Thungabhadra Industries Ltd. v. The Government of Andhra pradesh reported in AIR 1964 SC 1372 (b) Meera Bhanga v. Nirmala Kumari Chowdhuri reported in (1995)1 scc 170 : 1995 WBLR (SC) 117 (c) Delhi Administration v. Gurdip Sing Uban and Ors. reported in (2000)7 scc 296 . (d) Ravi Maharia v. Reliance Petroleum Limited and Ors. reported in (200. 0)1 Cal HN 439. (e) Paramita Das v. Pranati Sarkar and Ors. reported in (2003)4 Cal HN 18 : (2003)2 WBLR (Cal) 265. (f) Par/son Devi and Ors. v. Sumitri Devi and Ors. reported in 1998 WBLR (SC) 80. Mr Basu, thus, prays for dismissal of the application for review. ( 13 ) SINCE one of the Hon'ble Judges of the said Division Bench disposing of the appeal is no longer available before this Court, the Hon'ble Chief Justice has assigned this application before this Bench. ( 14 ) AFTER hearing the learned Counsel for the parties and after going through the materials on record we find that on the date of disposal of the appeal by the Division Bench, the appeal was even not ready as regards service. It is not in dispute that neither any paper book was prepared nor even the memorandum of the appeal was served upon the present applicant. Only an application for stay was sought to be served upon the learned Advocate for the present applicant in the Trial Court but according to the affidavit-of-service affirmed by the clerk of the learned Advocate appearing on behalf of the appellants, the same was refused and subsequently the fact that interim order was extended and communicated to the said learned Advocate. ( 15 ) IN our view, after disposal of a writ application and the application for contempt, if the aggrieved party wants to prefer appeal against such order, the notice of appeal, must be served upon the party concerned in whose favour the trial Court passed order. A practice has grown up in this Court of serving the copy of the memorandum of appeal and the application for stay in connection with the appeal upon the learned Advocate who appeared on behalf of the successful party in the trial Court and on the basis of such service, generally the successful litigant in the trial Court appears through the said learned Advocate. If pursuant to such notice informally given to the learned Advocate for the successful party, the said learned Advocate appears before the appellate Court by filing a fresh power, the appeal can be treated as ready as regard service; but if for any reason the learned Advocate of the successful party in the trial Court does not accept such service, probably, on the ground that after the disposal of the original proceedings, he had no instruction, the appellate Court cannot treat such refusal of the learned Advocate as a good service upon the respondent and in such a situation, it is the duty of the appellant to effect service of notice of appeal in accordance with the Appellate Side Rules direct upon the respondent. ( 16 ) IN the case before us, we find that even the memorandum of appeal was not tendered but only the copy of the stay application was sought to be served upon the learned Advocate of the present applicant in the trial Court who refused to accept the same. Therefore, on the basis of such refusal, the Division bench could not hear out the appeal. ( 17 ) WE have already quoted the first paragraph of the order sought to be reviewed. It appears that an impression was given to the Division Bench that in spite of due service, nobody was appearing though, in fact, there was no service of notice of appeal at all in accordance with law. Thus, there was a fault on the part of the Court itself in hearing out the appeal by treating it as on days' list as if notice through Court had already been served upon the respondent. ( 18 ) THE various decisions cited by Mr. Basu lay down the well-settled principle that the Court on review cannot act like a Court of appeal and re-appreciate the matter on merit. There is no dispute with such proposition of law. In this case, however, the applicant has not prayed for review on merit but has sought intervention of the Court on the ground of default on the part of the court in issuing the notice of appeal which has been described as "procedural review" by the Apex Court in the case of Grindleys Bank Limited v. The Central government Industrial Tribunal and Ors. reported in AIR 1981 SC 606 which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it. In that decision, the Supreme court in paragraph 10 of the judgement in clear language held that if there was no service in accordance with law, the order is a void order and once attention of the Court is drawn to such fact, it is the duty of the Court to recall the ex parte order even if there is no statutory provision of review. ( 19 ) WE, therefore, find that the decisions cited by Mr Basu do not deserve separate discussions as all those decisions dealt with the scope of "review on merit". But we propose to recall the order on the ground that it was a fault on the part of the Division Bench in hearing the appeal by accepting the assertion of the appellants that in spite of due service none appeared on behalf of the respondent, although there was no service at all. Mere endeavour on the part of the appellants to serve the copy of the stay application upon the learned Advocate for the writ petitioner in the original Court and his alleged consequent refusal did not absolve the appellants of their liability to serve the notice of the appeal to the respondent direct. ( 20 ) WE, thus, find that this is a fit case where the order of the Division bench dated 22nd September, 2004 should be recalled and we accordingly recall such order. Let the matter be placed before appropriate Bench as it stood on 22nd September, 2004 for hearing of the application for stay. In the facts and circumstances, there will be, however, no order as to costs.