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2012 DIGILAW 952 (CAL)

Chitto Banerjee v. CESC Limited

2012-10-16

ASIM KUMAR MONDAL, Kalyan Jyoti Sengupta

body2012
Judgment : By consent of the parties we take up the appeal and the application for hearing finally dispensing with all the formalities. 2. We feel that the appeal of this nature does not require hearing after observing all formalities. 3. The appellant before us who was the writ petitioner before the learned Trial Judge. His writ petition has been dismissed by the learned Trial Judge on the ground that the writ petition had not been verified under the provision of the law. 4. We have seen the copy of the writ petition. It appears that the appellant was the writ petitioner and he himself signed the writ petition. However, the petition has been verified by his wife Smt. Arati Banerjee and the identity of this lady and the relationship with the petitioner could not be disputed as the Voter Identity Card of the writ petitioner has been annexed with this application for interim relief. 5. The point was taken before the learned Trial Judge that the writ petition was not verified legally by any competent person. The learned Trial Judge accepted this plea and dismissed the writ petition on that ground alone. 6. Now the question is whether the learned Trial Judge was justified in rejecting the writ petition on the ground that the same was verified by wife or not. 7. Before we discuss this issue and take decision finally, we just set out the relevant Rules, namely, 14 and 15 of the Writ Rules framed by this Court which are as follows: "14. Every petition must be signed and dated by the petitioner or his duly authorised agent. Explanation: An endorsement in the petition signed by the advocate representing the petitioner, to the effect that he is satisfied that the petition has been signed by an agent of the petitioner duly authorised in that behalf, shall be accepted as prima facie evidence of the fact that the provision of the Rule has been complied with. 15. Explanation: An endorsement in the petition signed by the advocate representing the petitioner, to the effect that he is satisfied that the petition has been signed by an agent of the petitioner duly authorised in that behalf, shall be accepted as prima facie evidence of the fact that the provision of the Rule has been complied with. 15. Every petition shall be verified by the solemn affirmation made by the petitioner or a person or persons having cognizance of the facts stated and shall state clearly by reference to the paragraphs of the petition whether the statements are based on knowledge, information and belief, or on records and where statements are based on information, the source of information should be disclosed and where the statements are based on records, sufficient particulars should be given to identify the record." 8. Signing of the petition is not disputed before the learned Trial Judge and the learned Trial Judge did not find any fault as regard signing of the petition by the writ petitioner himself. The learned Trial Judge was of the view that the wife who could not produce any authority as such she was not competent to verify. The learned Counsel appearing for the private respondents supports the reasoning and logic of the learned Trial Judge. 9. Mr. Bhattacharyya learned Counsel appearing for the appellant has drawn our attention to Rule 15 of the Writ Rules and says that this has been verified in strict compliance of the aforesaid Rule as the wife herself has described that she is the wife of the petitioner and looking after the case and as such, well acquainted with the facts and circumstances of this case. It is also stated that she is competent to sign the petition and affirm the affidavit' on behalf of the petitioner. Ordinarily the petitioner himself/herself or petitioners themselves signs/sign the petition and he/she/they also verifies/verify the petition either by simple verification in case of the plaint and written statement, and in case of writ petition and/or other petition, by affirming affidavit. If so happens, the petitioner/petitioners is/are not to be found all the time, therefore, some alternative measure has been provided by the Rule itself. 10. If so happens, the petitioner/petitioners is/are not to be found all the time, therefore, some alternative measure has been provided by the Rule itself. 10. Rule 15 has provided that a person or persons having cognizance of the facts stated and shall state clearly by reference to the paragraphs of the petition whether the statements are based on knowledge, information and belief, or on records. Therefore, the requirement is that whether the deponent is cognizant of the facts stated in the petition or not. In this case the wife of the petitioner has stated on oath that she is looking after the case and as such, well acquainted with the facts and circumstances of this case. There is no reason to disbelieve such statement when there had been no counter allegation on oath that she is not acquainted with the facts and circumstances of this case. We fail to understand why the deponent was disbelieved by the learned Trial Judge. 11. In this case, in our view, when no authority of the husband is required to verify the petition by affidavit, as Rule itself allows the wife to verify. We are unable to subscribe the views taken by the learned Trial Judge. We hold that the petition has been lawfully verified. Therefore, the petition is quite competent to be heard on merit otherwise. We, therefore, set aside the judgment and order of the learned Trial Judge. 12. All the learned Counsels request us to decide the matter on merit but we cannot accept their request because His Lordship had no opportunity to deal with the matter on merit. If we do so, this would be an exercise usurping the jurisdiction of the learned trial Judge which is not permissible under the law. 13. We remand the matter for fresh hearing restoring the same on its original file. We request the Hon'ble Trial Judge to decide the matter as early as possible on merit. Since it is a case of electric supply connection, the matter should be thrashed out once for all as early as possible. We desire that this matter should be decided within three weeks after reopening after puja vacation. 14. The appeal and the application are, thus, disposed of. 15. Allegations contained in the petition are not admitted since we have not called upon to file any affidavit-in-opposition. We desire that this matter should be decided within three weeks after reopening after puja vacation. 14. The appeal and the application are, thus, disposed of. 15. Allegations contained in the petition are not admitted since we have not called upon to file any affidavit-in-opposition. Urgent xerox certified copy of this order be supplied to the applicants.