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2009 DIGILAW 388 (CAL)

Asha Chaubay v. Shib Dayal Shukla

2009-05-15

JYOTIRMAY BHATTACHARYA

body2009
Judgment :- (1) This application under Article 227 of the Constitution of India is directed against an order dated 28th July, 2008 passed by the learned District Judge at Howrah in Misc. Appeal No. 22 of 2008 where by the said Misc. Appeal was allowed to be dismissed for non-prosecution without considering the petitioners two applications; one for restoration of his possession and another for interim injunction, on merit. (2) The plaintiff/respondent/petitioner herein is aggrieved by that part of the impugned order by which the learned District Judge refused to entertain the petitioners those two applications on the plea of lack of jurisdiction of the Appeal Court in entertaining those applications in the said appeal. Hence, the instant application under Article 227 of the Constitution of India has been filed by the plaintiff/respondent/petitioner herein before this Court. (3) Heard Mr. Chatterjee, learned Senior Counsel appearing for the petitioner and Mr. Roy Chowdhury, learned Senior Counsel appearing for the defendant/appellant/opposite party herein. (4) Let me now consider as to how far the learned Appeal Court was justified in passing the impugned order in the facts of the instant case. (5) The bare facts which are necessary to be taken note of, for appraisal of the merit of this revisional application, are briefly stated hereunder:- (A) The plaintiff filed a suit for declaration of his title and for injunction against the defendants/opposite parties herein claiming the following reliefs :- a) A decree for declaration that the plaintiff is one of the owners of the schedule property of Chotelal Sharma which has more fully and particularly described in the schedule. b) A decree for declaration that the defendant have no right to enter into the suit premises which has more fully and particularly described in the schedule which is under occupation and possession of the plaintiffs. c), A decree for declaration that the defendants have no right to occupy the suit premises which has more fully and particularly described in the schedule which is under the occupation and possession of the plaintiff. d) Permanent injunction restraining the defendants, their men and agents from making any disturbance at the suit premises which has more fully and particularly described in the schedule which is under occupation and possession of the plaintiff. e) Injunction. f) Receiver. g) Costs. h) Such other relief or reliefs to which the plaintiff is entitled under law. d) Permanent injunction restraining the defendants, their men and agents from making any disturbance at the suit premises which has more fully and particularly described in the schedule which is under occupation and possession of the plaintiff. e) Injunction. f) Receiver. g) Costs. h) Such other relief or reliefs to which the plaintiff is entitled under law. (B) After filing the said suit, the plaintiff filed an application for temporary injunction for protecting his possession in the suit property and also for restraining the defendants from transferring the suit property during the pendency of the suit. An ad interim order of injunction was also prayed for therein in similar manner. (C) The learned TrialJudge, by his order being No. 1 dated 17.1.2008, was pleased to pass an ad interim order of injunction by directing the parties to maintain status quo in the suit property till 12.2.2008. (D) The opposite parties herein instead of submitting their reply to the show cause notice issued in connection with the said injunction proceeding, filed an appeal being Misc. Appeal No. 22 of 2008 for challenging the propriety of the said order of injunction, before the learned District Judge at Howrah. The said appeal was admitted for hearing on 7th February, 2008 by the learned Appeal Court. Simultaneously the order impugned in the said appeal was also stayed till 14.3.2008, by the learned Appeal Court. (E) In view of the aforesaid order of stay passed by the learned Appeal Court, the ad interim injunction which was passed for a limited period, could not be extended by the learned Trial Judge in the suit. (F) The order of stay which was passed by the Appeal Court as mentioned above, was challenged by the petitioner herein before this Court and the said revisional application which was registered as C.O. No. 577 of 2008 was ultimately allowed on contest by the Honble Mr. Justice Tapan Kr. Dutta on 28.3.2008. The order of stay was, thus, set aside and the learned Appeal Court was directed to expedite the hearing of the appeal and make all endeavour to dispose of the said Misc. Appeal as early as possible but preferably within six weeks from the date of communication of His Lordships said order to the learned Appeal Court. Dutta on 28.3.2008. The order of stay was, thus, set aside and the learned Appeal Court was directed to expedite the hearing of the appeal and make all endeavour to dispose of the said Misc. Appeal as early as possible but preferably within six weeks from the date of communication of His Lordships said order to the learned Appeal Court. (G) Since it was brought to the notice of His Lordship by the learned Senior Counsel of the petitioner that certain subsequent events took place for which the petitioner is required to file an application before the learned Appeal Court seeking certain reliefs in the appeal, it was observed by His Lordship, in His Lordships order dated 28.3.2008 that if any such application is filed by the petitioner in the said appeal, the learned Appeal Court, will decide the same in accordance with law. (H) Immediately after the disposal pf the said application in the manner as aforesaid, the petitioner filed two applications in the said appeal. In one of such applications, he prayed for restoration of his possession in the said property with the police help and in the other application he prayed for interim injunction. (I) It was alleged by the petitioner in the said applications that by taking advantage of the order of stay, passed by the learned Appeal Court, the defendants/appellants dispossessed the plaintiff from the suit property on 11.3.2008 i.e. at a point of time when the injunction order in the form of status quo remained stayed by virtue of the order passed by the learned Appeal Court as aforesaid. (J) Immediately thereafter, the defendants/appellants/opposite parties herein filed an application in the said appeal inter alia graying for the dismissal of the said appeal for non prosecution, as according to them the said appeal became infructuous due to passage of time as the limited interim order which was passed by the learned Trial Judge and which was impugned in the said appeal, lost its force after 12th February, 2008. (K) The learned Appeal Court dismissed the said appeal for non-prosecution by accepting the contention of the appellant that the appeal has become infructuous as the order impugned in the appeal lost its force after 12.2.2006. (K) The learned Appeal Court dismissed the said appeal for non-prosecution by accepting the contention of the appellant that the appeal has become infructuous as the order impugned in the appeal lost its force after 12.2.2006. Simultaneously the learned Appeal Court refused to consider the petitioners those two applications on merit by holding inter alia that the appeal Court lacks jurisdiction to entertain those applications in the said appeal. (6) In this aforesaid context, this Court will have to examine as to whether the learned Appeal Court was justified in refusing to entertain those two applications of the petitioner in the said appeal. (7) Mr. Roy Chowdhury, learned Senior Counsel submitted that the Court cannot entertain any application in an infructuous appeal and as such, the learned Appeal Court was justified in refusing to entertain the said applications in the said infructuous appeal which the appellants did not want to press. (8) On the contrary, Mr. Chatterjee, learned Senior Counsel contended that when this Honble Court, while disposing of the earlier revisional application directed the Appeal Court to consider those applications of the petitioners, the learned Appeal Court ought not to have avoided to consider those applications on merit. Mr. Chatterjee further submitted that no Court should allow a party to take advantage of his own wrong. Mr. Chattejee contended that when the opposite parties dispossessed the petitioner by taking advantage of the stay order passed by the Appeal Court and when such stay order was set aside by this Honble Court, it was the duty of the Appeal Court to restore the possession of that party who was in possession therein as on the date immediately prior to the passing of the order of stay. Thus, Mr. Chatterjee contended that the learned Appeal Court acted illegally by refusing to entertain the petitioners application for restoration. In support of such submission Mr. Chatterjee cited an unreported decision of this Honble Court in the case of Dr. Badri Prasad Gupta v. Sisir Kr. Das wherein it was held in similar circumstances that it is the duty of the Court to undo the wrong that has been done to a party for staying the operation of the order impugned apart from other reasons. Mr. Chatterjee pointed out from the said decision that, in fact, the possession of the dispossessed person was directed to be restored in the said order. (9) Accordingly, Mr. Mr. Chatterjee pointed out from the said decision that, in fact, the possession of the dispossessed person was directed to be restored in the said order. (9) Accordingly, Mr. Chatterjee invited this Court to interfere with the impugned order. (10) Mr. Roy Chowdhury refuted such submission of Mr. Chatterjee by contending inter alia that the unreported decision cited by Mr. Chatterjee has no application in the facts of the instant case inasmuch as the facts of the said case in which such direction was given are completely different from the facts in the present case. Mr. Roy Chowdhury pointed out that direction for restoration of possession was given in the said infructuous revisional application only for the reason that such dispossession was admittedly made by taking the aid of the stay order obtained by the petitioner therein, by exercising fraud upon Court by not disclosing the lodging of caveat by the opposite party in connection with the said revisional application. Thus, Mr. Roy Chowdhury contended that since there is no element of fraud in the instant case, the principles laid down therein, cannot be applied in the present case. Thus, Mr. Roy Chowdhury supported the impugned order by contending that the learned Appeal Court rightly dismissed the appeal for non-prosecution as the appeal was rendered infructuous due to subsequent events. Mr. Roy Chowdhury, thus, contended that since no further adjudication of the rights of the parties is possible in such an infructuous appeal, the learned Appeal Court did not commit any illegality in refusing to entertain those applications in such infructuous appeal. (11) Let me now consider the respective submissions of the learned Counsel of the parties in the facts of the instant case. (12) Though it is rightly pointed out by Mr. Roy Chowdhury, learned Senior Counsel, that the appeal was really made infructuous after 12.2.2008 when the order of status quo lost its force but still then this Court is still at a loss to understand as to why the fate of the said appeal was not brought to the notice of this Honble Court by the opposite party herein at the time of disposal of the earlier revisional application by Honble Mr. Justice Tapan Kr. Justice Tapan Kr. Dutta on 20.3.2008 when His Lordship issued direction upon the learned Appeal Court to expedite the hearing of the appeal with a rider that if any application for appropriate order is filed by the petitioner, the application will be considered by the learned Appeal Court in accordance with law. (13) That apart, here is the case where a complaint has been made by the petitioner before the learned Appeal Court that he has been dispossessed from the suit premises by the appellants/opposite parties with the aid of an illegal order of stay passed by the Appeal Court. When such an allegation has been made in the said application for restoration, the Appeal Court ought not to have avoided to consider the correctness of such allegations of the petitioner in the said appeal particularly when the said stay order was set aside by this Honble Court by holding inter alia that the Appeal Court ought not to have passed the said order of stay inasmuch as by virtue of the order of stay, the appeal itself was virtually allowed without hearing the other side. (14) Thus, this Court has no hesitation to hold that the order of stay which was passed by the learned trial Court was an illegal order and if a party in possession is dispossessed by the other party by taking advantage of such illegal order, it is the duty of that particular Court which passed such illegal order which is the root cause leading to such alleged dispossession, to restore the possession of such displaced part so that status quo anterior to the order of stay is restored. (15) A wrong doer in my view, cannot take advantage of his own wrong. Thus, if it can be proved that such wrong was done with the aid of a wrongful order passed by the Court, it is the duty of that particular Court which passed such wrong order to undo the wrong committed by the wrong doer with the aid of the wrongful order passed by the Court particularly when the wrong order was set aside by the Higher Forum. (16) Though it is correctly pointed out by Mr. (16) Though it is correctly pointed out by Mr. Roy Chowdhury that element of fraud is not involved in the instant case, but still then, this Court holds that even in the absence of fraud, a wrong doer who has committed wrong by taking advantage of the wrong order of the Court, cannot be allowed to enjoy the fruits of such wrong after the wrong order is set aside by the Higher Forum. (17) Accordingly, this Court holds that the learned Appeal Court was not justified in refusing to entertain the petitioners application for restoration of possession. (18) Though this Court agrees with the findings of the learned Appeal Court that the appeal has now become infructuous but still then the learned Appeal Court ought to have considered the petitioners application for restoration on its own merit for ascertaining the correctness of the allegations made therein and for giving appropriate relief to the affected party, before dismissing the said appeal for non-prosecution. (19) The impugned order, thus, stands set aside. The learned Appeal Court is, thus, directed to consider the petitioners application for restoration and/or his application for injunction on their own merit and thereafter to consider the opposite parties prayer for dismissal of the said appeal for non-prosecution in accordance with law. (20) It is, however, made clear that while disposing of this revisional application, this Court has not considered the merit of the petitioners those applications, filed before the learned Appeal Court below and as such, the learned Appeal Court is absolutely free to take its own decision on the merit of those applications without being influenced by any of the observations made hereinabove. (21) The revisional application, thus, stands allowed.