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2014 DIGILAW 934 (CAL)

CESC Limited v. Dipak Roy

2014-09-24

SUBRATA TALUKDAR

body2014
JUDGMENT : Subrata Talukdar, J. 1. In this application under Article 227 of the Constitution of India the petitioner CESC Limited Challenges Order dated 18th July, 2009 passed by the Ld. 3rd Additional Civil Court (Junior Division) Alipore in Title Suit No. 225 of 2002. 2. Sri Subir Sanyal, Ld. Counsel for the petitioner has also filed CAN No. 12421 of 2013 for restoration of the order dated 12th December, 2013 passed by an Hon'ble Single Bench of this Court. 3. It transpires from the record that CO 3094 of 2009 was dismissed for default by the order dated 12th December, 2013. By the said order the Hon'ble Single Bench was also pleased to vacate the interim order granted earlier by this Court dated 2nd March, 2010 staying all further proceedings in Title Suit No. 225 of 2002 pending before the Ld. 3rd Additional Civil Court (Junior Division), Alipore. 4. The petitioner has also filed affidavit of service which is taken on record. In spite of service none appears for the opposite party. 5. Sri Sanyal has submitted at length on the point that when a prayer is made for recall of the order of dismissal and for restoration of the interim order which stood vacated by the said order of dismissal, on such prayer for recall being allowed both the revisional application along with its interim order stood revived. 6. In support of his submission Sri Sanyal relies upon the judgment of the Hon'ble Apex Court reported in AIR 2004 SC 3992 in the matter of Vareed Jacob v. Sosamma Geevarghese and Others. Drawing the attention of this Court to the majority view contained at paragraphs 20 and 21 of the said Judgment, Sri Sanyal has argued that the revival of interlocutory orders on restoration of a suit or petition which was dismissed for default is automatic unless the Court expressly or impliedly excludes its operation. 7. Paragraphs 20 and 21 of Vareed Jacob's Judgment (supra) read as follows:- "20. In the case of Nandipati Rami Reddi v. Nandipati Padma Reddy (supra), it has been held by the Division Bench of the Andhra Pradesh High Court that when the suit is restored, all interlocutory orders and their operation during the period between dismissal of the suit for default and restoration shall stand revived. In the case of Nandipati Rami Reddi v. Nandipati Padma Reddy (supra), it has been held by the Division Bench of the Andhra Pradesh High Court that when the suit is restored, all interlocutory orders and their operation during the period between dismissal of the suit for default and restoration shall stand revived. That once the dismissal is set aside, the plaintiff must be restored to the position in which he was situated, when the Court dismissed the suit for default. Therefore, it follows that interlocutory orders which have been passed before the dismissal would stand revived along with the suit when the dismissal is set aside and the suit is restored unless the Court expressly or by implication excludes the operation of interlocutory orders passed during the period between dismissal of the suit and the restoration. 21. In the case of Nancy John Lyndon v. Prabhati Lal Chowdhury, reported in 1987 (4) SCC 78 , it has been held that in view of Order 21, Rule 57 , C.P.C. it is clear that with the dismissal of the title execution suit for default, the attachment levied earlier ceased. However, it has been further held that when the dismissal was set aside and the suit was restored, the effect of restoring the suit was to restore the position prevalent till the dismissal of the suit or before dismissal of the title execution suit. We repeat that this judgment was under Order 21, Rule 57 whose scheme is similar to Order 38, Rule 11 and Rule 11-A, C.P.C. and therefore, we cannot put all interlocutory orders on the same basis." 8. Further drawing the attention of this Court to the minority view in Vareed Jacob's Judgment (supra) Sri Sanyal submits that the Hon'ble Single Judge was pleased to hold the view that in order to decide the issue of revival of the interlocutory relief consequent to restoration of the suit, petition or proceeding, it would not be correct to hold that the attachment proceeding is in effect and substance different from an order of injunction on the ground that the former is a part of the execution process. 9. Paragraph 67 of the minority view in Vareed Jacob's Judgment reads as follows:- "67. I am, therefore, of the opinion that the interim in order of injunction did not revive on restoration of the suit. 9. Paragraph 67 of the minority view in Vareed Jacob's Judgment reads as follows:- "67. I am, therefore, of the opinion that the interim in order of injunction did not revive on restoration of the suit. The courts, however, would be well-advised keeping in view the controversy to specifically pass an order when the suit is dismissed for default stating when interlocutory orders are vacated and on restoration of the suit, if the court intends to revive such interlocutory orders. An express order to that effect should be passed." 10. This Court notices the prayers in the application for restoration being CAN No. 12421 of 2013 which are as follows:- "(a) Order dated 12th December, 2013 dismissing the pending revisional application being CO No. 3094 of 2009 (CESC Ltd. v. Dipak Roy) be recalled and/or set aside; (b) The revisional application being CO No. 3094 of 2009 (CESC Ltd. v. Dipak Roy) be restored to filed for hearing; (c) Cost of this application be cost in the cause; (d) Such further order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper." 11. This Court further notices that after hearing both the parties by order dated 2nd March, 2010 the Hon'ble Single Bench of this Court was pleased to stay further proceedings in Title Suit No. 225 of 2002 pending disposal of the application. 12. By order dated 12th December, 2013 the revisional application stood dismissed and the interim order stood vacated. 13. Therefore, in the considered view of this Court on recall of the order dated 12th December, 2013 both the revisional application being CO No. 3094 of 2009 and the interim order dated 2nd March, 2010 stand revived. Following the ratio of the Hon'ble Apex Court in Vareed Jacob's case (supra) this Court notices that both the majority and the minority views speak of revival of the interim order upon restoration of the suit, petition or proceeding as the case may be. However, the minority view further makes it incumbent upon the restoring Court to expressly record that on restoration of the suit, petition or proceeding the interim order stands revived or not. 14. However, the minority view further makes it incumbent upon the restoring Court to expressly record that on restoration of the suit, petition or proceeding the interim order stands revived or not. 14. In the facts of the present case it is noticed that Sri Sanyal has made a prayer for recall of the order dated 12th December, 2013 by which both the revisional application suit stood dismissed and the interim order stood vacated. Therefore, on recall of the said order dated 12th December, 2013 the effect of such recall is to restore both the revisional application being CO No. 3094 of 2009 and the interim order dated 2nd March, 2010. 15. This Court also notices that the prayer in CO No. 3094 of 2009 relates to the order dated 18th July, 2009 by which an application for amendment under Order 6, Rule 17 of the Code of Civil Procedure filed by the present opposite party/plaintiff was considered and allowed. The grievance of Sri Sanyal is that while considering the application under Order 6, Rule 17 of the O.P/plaintiff the Ld. Trial Court ought to have considered first whether the suit was at all maintainable in view of an application under Order 7, Rule 11 read with Section 151 CPC filed for rejection of plaint by the defendant. 16. It is the specific contention of Sri Sanyal in the Order 7, Rule 11 application that an adequate remedy under the Indian Electricity Act, 1910 (as amended from time to time) is available to the O.P./plaintiff read with the provisions of the Conditions of Supply framed under Section 21 of the said Indian Electricity Act and duly approved by the Government of West Bengal on 15th May, 2000. 17. Sri Sanyal has argued that the Conditions of Supply also provide that a consumer is entitled to prefer an appeal to the authority designated by the Licensee/Electricity Supply Company within 30 days from the date of receipt of the assessment bill. Therefore, in view of the above noted alternative remedy the Ld. Civil Court cannot acquire jurisdiction to hear the suit and hence the suit is not maintainable. 18. According to Sri Sanyal, the Ld. Trial Court failed to apply its mind to such issue while passing the order impugned dated 18th July, 2009. The Ld. Therefore, in view of the above noted alternative remedy the Ld. Civil Court cannot acquire jurisdiction to hear the suit and hence the suit is not maintainable. 18. According to Sri Sanyal, the Ld. Trial Court failed to apply its mind to such issue while passing the order impugned dated 18th July, 2009. The Ld. Trial Court ought to have first considered whether the suit was maintainable by hearing out the application under Order 7, Rule 11 CPC filed by the present petitioner/defendant prior to deciding to allow the amendment under Order 6, Rule 17 CPC (supra). Sri Sanyal submits that by allowing the amendment vide the order impugned dated 18th July, 2009, the Ld. Trial Court has rendered the Order 7, Rule 11 application infructuous. 19. Heard. Considered the materials on record. 20. This Court, in view of the substantial grounds of facts and law raised by Sri Sanyal and discussed above is of the considered opinion that in the event the application being CO 3094 of 2009 is restored and, at the same time the Title Suit No. 225 of 2002 is allowed is proceed, the present application shall be rendered infructuous. Sri Sanyal has correctly argued that the recall of the order dated 12th December, 2013 without restoring the interim order granted by this Court on 2nd March, 2010 will defeat the very purpose of adjudication of CO No. 3094 of 2009. 21. In the backdrop of the above discussion this Court finds it fit to recall the order dated 12th December, 2013 and thereby restore CO No. 3094 of 2009 to its original file and number. 22. This Court also finds it appropriate to restore the interim order granted by this Court on 2nd March, 2010 and accordingly such interim order is restored on the same terms as granted on 2nd March, 2010. The interim order will now continue until disposal of the present application. 23. CAN No. 12421 of 2013 is allowed. 24. There will be, however, no order as to costs. Urgent Xerox certified copy, if applied for to be handed over to the parties at their own costs. Application is allowed.