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2008 DIGILAW 407 (CAL)

Sanatan Mandi v. Shrimati Usha Rani Mandi

2008-04-16

BISWANATH SOMADDER

body2008
JUDGMENT:- (1) LEAVE granted to the learned Advocate for the petitioners herein to correct certain inadvertent mistakes that have crept in the instant application in presence of the officer of the Court. (2) HEARD the learned Advocates appearing on behalf of the parties. (3) THIS is an application under Article 227 of the Constitution of India primarily directed against an order, being Order No. 12 dated 11th July, 2007, passed by the learned District Judge, Bankura in Civil revision Case No. 5 of 2001 arising out of Title Execution Case No. 3 of 1981. (4) THE petitioners herein are the judgment-debtors. The decree was passed by the learned trial Court on 21st December, 1968 an appeal was preferred therefrom before the learned District Judge at Bankura, which was dismissed by a judgment and decree dated 19th July, 1971, on contest with cost. A Second Appeal was preferred by the judgment-debtors before this Court which was also dismissed by a judgment and decree dated 11th January, 1979. Subsequently, the decree-holders put the decree into execution which gave rise to Title Execution Case no. 3 of 1981. In the said title execution case, the decree-holders filed an application inter alia praying for police help for given delivery of possession. The learned trial Court hearing the said application allowed the same by an order dated 6th December, 2000. Against the said order, the petitioners herein preferred a revisional application under Section 115a of the Code of Civil Procedure before the learned District Judge at Bankura, which was registered as Civil Revision Case No. 5 of 2001. The learned District Judge, Bankura by an order dated 29th September, 2001, was pleased to allow the said revisional application on contest without cost. (5) OPPOSITE parties herein thereafter approached this Court by filing a revisional application under Article 227 of the Constitution of india, which was registered as C. O. 817 of 2002. This Court by an order dated 4th May, 2007, was inter alia pleased to remand back the civil revision case to the Court of the learned District Judge, Bankura with a direction to pass an order afresh after giving the parties an opportunity to place their respective cases and dispose of the revisional application afresh. This Court by an order dated 4th May, 2007, was inter alia pleased to remand back the civil revision case to the Court of the learned District Judge, Bankura with a direction to pass an order afresh after giving the parties an opportunity to place their respective cases and dispose of the revisional application afresh. (6) THE learned trial Court, pursuant to the direction of this Court in the order dated 4th May, 2007, was pleased to hear out the revisional application afresh and dismissed the said revisional case on contest by an order dated 11th July, 2007, wherefrom the instant application arises. (7) THE specific contention of the judgment-debtors, being the petitioners herein, is the learned Court below while passing the order impugned, acted without jurisdiction inasmuch as in terms of Section 115a of the Code of Civil Procedure, such an application as had been filed by the judgment-debtors before the learned Court below could not have been adjudicated upon by the learned Court below at the very first instance, while exercising its revisional jurisdiction under Section 115a of the Code of Civil Procedure. This fact is also not being disputed by the learned Advocate appearing on behalf of the opposite parties herein, being the decree-holders. However, the learned Advocate for the opposite parties is relying on the judgment and order of this Court passed on 4th May, 2007, whereby this Court was pleased to remand the case for consideration afresh to the learned revisional Court below. He submits that the parties once have approached the learned revisional court below pursuant to the direction given by this Court have acted on the order passed by this Court and are thereafter bound by the said order. (8) AFTER considering the submissions made by the learned advocates appearing on behalf of the parties, I am unable to accept the submission made on behalf of the decree-holders/opposite parties, because, if the parties approached a Court which in the first place had no jurisdiction to entertain, try and determine a particular matter, it was not open to the parties to contend that they have simply acted upon the basis of an order passed by that Court. It is a fundamental principle of law that even by consent, parties cannot clothe a Court with jurisdiction which it has not been vested with nor can a Court arrogate such jurisdiction which is non-existent in the first place. It is always open to either of the parties to challenge a proceeding of a Court on the ground of lack of jurisdiction of that Court to entertain, try and determine a matter. Therefore, if any proceeding has been initiated by a party before a Court, which in the first place did not have the jurisdiction to entertain, try and determine a matter, all consequential order/orders passed, arising out of and in connection with the said proceeding, would be void ab initio, being a nullity in the eye of law. (9) IN the circumstances, the proceeding initiated by the judgment-debtors before the learned District Judge, Bankura by filing a misconceived application in the first place under Section 115a of the code of Civil Procedure, being Civil Revision Case No. 5 of 2001, is bad in law and all orders passed therein are void ab initio, being orders passed by a Court, without jurisdiction to do so in the first place. Consequentially, the order impugned, being the order dated 11th July, 2007, is also set aside. The revisional application thus stands allowed accordingly.