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2007 DIGILAW 820 (CAL)

Surendra Kumar Roy v. V. State

2007-10-16

INDIRA BANERJEE

body2007
Judgment :- (1) IN the instant application, the applicant M/s. Julien Educational Trust being one of the opposite parties in the revisional application under Article 227 of the Constitution of India being C. O. No. 2021 of 2007 has sought an appropriate order. . . . . directing the parties to maintain status-quo with regard to the suit property till the disposal of their application for injunction by the trial Court. (2) THE facts pertaining to the case are very briefly narrated hereinafter:-On or about 6th February, 2007, the applicants filed a suit for specific performance of an agreement in the Court of the learned Civil Judge, senior Division, Fourth Court, Alipore being Title Suit No. 10 of 2007 (3) ON coming to know that the suit property had already been transferred, the applicants made an application for addition of the transferees as party defendants to the suit. (4) BY an order dated 17th May, 2007 the application for amendment was allowed and rightly so. There can hardly be any doubt that the transferee of a suit property is a necessary and proper party to a suit for specific performance of an agreement for sale of the suit property. (5) THE revisional application under Article 227 of the Constitution of India being C. O. No. 2021 of 2007 was, however, moved in the Court challenging the order of the Court below allowing the amendment. (6) THIS Court found no merits in the application under Article 227 of the Constitution of India and was inclined to dismiss the application. The second paragraph of the order dated 12 th June, 2007 is extracted here in below for convenience:- "by the order impugned the transferees of the suit property have been added as defendants in the suit. The order to the extent the transferees have been added as defendants does not call for interference in proceedings under Article 227 of the Constitution of India. " (7) HOWEVER, on the submission of Mr. Mukherjee, learned Senior counsel appearing on behalf of the petitioners in the revisional application, this Court directed the Court below to hear the application under Order 7 rule 11 of the Code of Civil Procedure filed in the Court below first. " (7) HOWEVER, on the submission of Mr. Mukherjee, learned Senior counsel appearing on behalf of the petitioners in the revisional application, this Court directed the Court below to hear the application under Order 7 rule 11 of the Code of Civil Procedure filed in the Court below first. This court in its anxiety to protect the interest of both the parties, having regard to the submission made in Court that the defendants were changing the nature and character of the suit property and/or intending to make construction thereon, directed that status-quo with regard to the suit property be maintained for a period of four weeks or until further orders of the Court below, whichever was earlier. This Court directed the Court below to hear out the application of the petitioners under Order 7 Rule 11 expeditiously preferably within two weeks from date. This Court further directed that the application of the petitioner for injunction might be heard analogously with the application under order 7 Rule 11 of the Code of Civil Procedure filed by the defendants. (8) THE Court below was directed to consider the two applications on merits and not to be influenced in any manner by the order of status-quo passed by this Court. The application was disposed of with the above directions. (9) IT however appears that the Court below did not hear or dispose of the application under Order 7 Rule 11 of the Code of Civil Procedure within two weeks as directed by this Court. A copy of the order sheet has been produced. It would be relevant to take note of the orders passed subsequent to the order dated 12th June, 2007 of this Court. (10) ON 13th June, 2007 the Court below fixed 29th June, 2007 for hearing of the petition under Order 7 Rule 11 and 10th July, 2007 for hearing of the injunction petition. (11) ON 22nd June, 2007, a copy of the order dated 12th June, 2007 of this Court was filed in the Court below. Thereafter, the matter was posted for hearing on 29th June, 2007, 09. 07. 2007, 10. 07. 2007, 11. 07. 2007, 12. 07. 2007, 13. 07. 2007, 18. 07. 2007, 02. 08. 2007, 24. 08. 2007, 14. 09. 2007, 27. 09. 2007 and 05. 10. 2007. Thereafter, the matter was posted for hearing on 29th June, 2007, 09. 07. 2007, 10. 07. 2007, 11. 07. 2007, 12. 07. 2007, 13. 07. 2007, 18. 07. 2007, 02. 08. 2007, 24. 08. 2007, 14. 09. 2007, 27. 09. 2007 and 05. 10. 2007. On each occasion the matter was adjourned on one ground or the other, most often on the ground day Presiding Officer having been transferred. Only on one occasion, that is on 09. 07. 2007, adjournment had been granted on the prayer of the petitioner, but then, the application was fixed on the very next day that is on 10th July, 2007. Except on 09. 07. 2007 the petitioner herein did not seek any adjournment. (12) IT is extremely unfortunate that notwithstanding the urgency of the matter and notwithstanding the order of this Court the Judge-in-Charge of the concerned Court did not take up the application for hearing but adjourned the same on the ground of her being busy with her own files. (13) THE order dated 12th June, 2007 of this Court was accepted and acted upon by all parties. The intention of this Court is absolutely clear. It was the intention of this Court that status-quo with regard to the suit property should be maintained till the injunction application was taken up and considered by the Court below, unless in the meanwhile. the application under order 7 Rule 11 for rejection of the plaint was allowed. (14) THE Court below has neither considered the application under Order 7 Rule 11 on merits nor considered the application of the petitioner for injunction. In fact, this Court directed that the order of status-quo would continue for a period of four weeks or until further orders of the learned Court below whichever was earlier. By necessary implication the order of status-quo could have been extended by the Court below if the situation so demanded. (15) THIS application has however strenuously been opposed on the technical ground that the application under Article 227 of the Constitution of India being C. O. No. 2021 of 2007 had been disposed of by this Court, by its order dated 12th June, 2007. (16) MR. (15) THIS application has however strenuously been opposed on the technical ground that the application under Article 227 of the Constitution of India being C. O. No. 2021 of 2007 had been disposed of by this Court, by its order dated 12th June, 2007. (16) MR. Mukherjee, learned Senior Advocate appearing on behalf of the defendants submitted that what was in issue in the application under Article 227 of the Constitution of India was the order dated 17th May, 2007 passed by the Court below allowing the application for amendment. (17) IN support of his contention that no other issue can be decided by this Court, including the issue of injunction. Mr. Mukherjee relied on the judgment of Supreme Court reported in AIR 1970 Supreme Court 1468. (18) HOWEVER, aa observed, above it was on the asking of the petitioners in the said revisional application that this Court gave directions with regard to the disposal of the application under Order 7 Rule 11 of the Code of Civil procedure. Having invited this Court to give directions with regard to the disposal of the application under Order 7 Rule 11 and having accepted and acted upon the order dated 12th June, 2007 which was never challenged in appeal, it is doubtful whether it can lie in the mouth of the petitioners in c. O. No. 2021 of 2007 to now contend that this Court could not consider any issue other than the issue of addition of defendants, questioned in the application under Article 227 of the Constitution. (19) IN the case before the Supreme Court, the issue was not mere extension of an order of status quo earlier passed by Court and accepted by the parties. (20) THE power of superintendence under Article 227 of the Constitution of India is wide, although that power is undoubtedly to be exercised with restraint. When the Court directs that an application be heard first, this Court has also to ensure that no party is prejudiced by the order. Hence this Court directed the parties to maintain status quo for four weeks in the expectation that the application under Order 7 Rule 11 would be heard out earlier in compliance with its order. Unfortunately, the Court below did not hear out the applications as per the order of this Court. Hence this Court directed the parties to maintain status quo for four weeks in the expectation that the application under Order 7 Rule 11 would be heard out earlier in compliance with its order. Unfortunately, the Court below did not hear out the applications as per the order of this Court. (21) BUT for the direction to hear out the application under Order7 Rule 11, the respective applications might have been taken up by the Court below as per its convenience. The injunction application might have been taken up earlier. The order sheet also reveals that some of the adjournments were necessary for filing of objection and counter objection to the application under order 7 Rule 11. (22) THE question before this Court is whether this Court should just sit back and see its order being frustrated, only because C. O. No. 2021 of 2007 was finally disposed of by this Court by its order dated 12th June, 2007 referred to above. (23) MR. Mukherjee in this context relied on the judgments of the supreme Court reported in AIR 1987 SC 943 and AIR 1992 SC 2201 , In both the aforesaid cases, after final disposal of the pending writ applications, a new cause of action had arisen by reason of a subsequent decision development, which was impugned by making an application in the writ petition that had been disposed of. The Supreme Court, thus, deprecated the passing of orders in applications which had finally been disposed of. (24) A judgment of the Supreme Court is to be construed in the background of the facts and circumstances in which the judgment is rendered. The factual situation in the instant case is totally different. It is reiterated, at the cost of repetition, that on the asking of the petitioners in C. O. No. 2021 of 2007 this Court directed the Court below to dispose of the application under order 7 Rule 11 of the Code first and to prevent injustice to the other party, by reason of this order, directed that status-quo in respect of the suit property be maintained for a period of four weeks. The application under Order 7 Rule 11 was directed to be disposed of preferably within two weeks. The application under Order 7 Rule 11 was directed to be disposed of preferably within two weeks. (25) IT was thus the intention of the Court that the interim order should continue till the disposal of the application under Order 7 Rule 11 of the code, and if the application did not succeed, till consideration of the injunction application by the Court below. In fact, this Court also gave liberty to the court below to hear the application under Order 7 Rule 11 along with the application for injunction filed in the Court below. If the Court below could not and/or did not hear out the applications as per the direction of this Court, the party which accepted the order of this Court directing the Court below to hear out the application of the opposite parties under Order 7 Rule 11 in an application of the opposite parties under Article 227 of the Constitution of India, should not suffer. (26) REFERENCE may be made to the judgment of the Division Bench of this Court in the case of Nund Kishore Singh and Ors. v. Ram Golam Sahu and ors. , reported in 1. 6 Calcutta Law Journal 508 cited by Mr. Ajit Kumar Panja, learned Senior Counsel appearing on behalf of the applicant. Asutosh mookherjee, J. held as follows:- "the question, therefore, arises whether this Court is competent, in the exercise of its inherent power, to stay proceedings under these circumstances. Section 151 of the Code does not lay down any new principle, but merely declares that the Court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. This inherent power is not, as has sometimes been supposed, capriciously or arbitrarily exercised; it is exercised ex debito justice, to do that real and substantial justice for the administration of which alone the Court exists. " (27) IT would be important to note the anxiety of the Court as expressed in the following words:- "are we to say that our action has already been paralysed, that we are powerless to grant relief and that the application is infructuous. " (27) IT would be important to note the anxiety of the Court as expressed in the following words:- "are we to say that our action has already been paralysed, that we are powerless to grant relief and that the application is infructuous. I am strongly of opinion, after most anxious consideration of the subject, that the Court should not tolerate such a result, and as I have shown, the position may be avoided by the recognition of sound judicial principles. " (28) THIS Court might, in exercise of its inherent power pass an order even in a revisional application which has finally been disposed of, to do substantial justice and/or prevent injustice and/or miscarriage of justice specially by frustration of its own earlier order. This Court deems it expedient that the order of status-quo should continue till the disposal of the application under Order 7 rule 11 of the Code and/or consideration of the application for injunction. (29) THE Court below shall positively dispose of the pending applications without granting further adjournments. If the Presiding Officer is not available the applications shall be heard by Judge-in-Charge. (30) IT hardly need be mentioned that the Court below shal not be swayed by this order of status-quo in any manner whatsoever. The application for injunction as also the application under Order 7 Rule 11 shall be decided on merits. (31) THE application being C. A. N. No. 7641 of 2007 is accordingly, disposed of without any order as to costs.