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2016 DIGILAW 201 (CAL)

Sudhir Chandra Das v. State of West Bengal

2016-02-24

SUBRATA TALUKDAR

body2016
JUDGMENT : Subrata Talukdar, J. Learned Counsel appearing for the petitioner, Ms. Rama Halder reiterates her submission that this writ petition stands on the platform of the self-same cause of action espoused in a previous writ petition, also filed by the present petitioner which stood dismissed for default and has not been restored till date. Therefore, in the absence of any co-operation received by the petitioner from her erstwhile learned Advocate by way of taking steps to restore the writ petition, the petitioner has been compelled to file the second writ petition for this self-same reliefs. 2. Ms. Halder renews her reliance on the decision of an Hon’ble Single Bench of this Court reported in (2013) 4 WBLR (Cal) 597 in the matter of Chittaranjan Kar v. The State of West Bengal & Ors.) to make the point that the dismissal in limine of a previous writ petition shall not be a bar to filing a second writ petition. Ms. Halder also relies upon the decision of the Hon’ble Apex Court reported in AIR 1979 Supreme Court 1328 (Hoshnak Singh v. Union of India and others) wherein the Hon’ble Apex Court was pleased to, inter alia, hold that the dismissal of a petition in limine without a speaking order shall not be a bar to filing of a second writ petition. 3. The view taken by the Hon’ble Apex Court in AIR 1979 SC 1328 (supra) was reiterated by an Hon’ble Division Bench of this Court in 2008 (2) Cal LT 439 (High Court) (Smt. Sarifunnessa v. Union of India & Ors.). On the strength of the above noted decisions Ms. Halder argues that the present second writ petition is maintainable to claim the substantive rights of the petitioner. 4. Further drawing the attention of this Court to the order dismissing the first writ petition being order dated 28th February, 2013 in W.P. 2485(W) of 2009, Ms. Halder argues that such dismissal took place in the absence of appearance of any of the parties. Therefore, the provisions for restoration of the writ petition under Order 9 Rule IV of the Code of Civil Procedure (for short CPC) shall apply. Order 9 Rule IV also provides the plaintiff (read the petitioner) the alternative remedy of filing a fresh suit. 5. Per contra, Sri Kamal Mishra, learned Counsel appearing for the respondent Nos. Therefore, the provisions for restoration of the writ petition under Order 9 Rule IV of the Code of Civil Procedure (for short CPC) shall apply. Order 9 Rule IV also provides the plaintiff (read the petitioner) the alternative remedy of filing a fresh suit. 5. Per contra, Sri Kamal Mishra, learned Counsel appearing for the respondent Nos. 4 and 5 relies upon the order of an Hon’ble Single Bench dated 15th May, 2015 in W.P. 8893(W) of 2015 by which the writ petition stood dismissed by applying the provisions of Order 9 Rule IX of the CPC. 6. Sri Mishra argues that the principle adopted by the Hon’ble Single Bench vide its order dated 15th May, 2015 (supra) shall also apply to the facts of this case. 7. Ms. Halder distinguishes the application of the order dated 15th May, 2015 (supra) on the ground that Order 9 Rule IX CPC shall apply only when the plaintiff (petitioner) did not appear and the defendant (respondent) appeared under Order 9 Rule VIII CPC. However, Ms. Halder points out, that in the facts of the present case neither the plaintiff (petitioner) nor the defendant (respondent) appeared and therefore Order 9 Rule III read with Order 9 Rule IV CPC will be applicable and, not Order 9 Rule IX CPC. 8. Sri Biswarup Biswas, learned Counsel appears for the respondents-School Authority and points out to the provisions of Section 141 CPC which, inter alia, exclude the procedure provided in CPC to proceedings under Article 226 of the Constitution of India. Therefore, Sri Biswas argues that by whatever reasoning the application of the provisions of CPC stand excluded in the facts of the present case. 9. Sri Supriya Chattopadhyay, learned Senior Government Advocate appears for the State-respondents and relies on Rule 53 Appendix IV of the High Court Rules Relating to Applications under Article 226 and argues that the provisions of the CPC although may be applied to proceedings under Article 226, shall not be deemed to limit or otherwise affect the inherent power of the writ Court to make orders for the ends of justice. 10. Having heard the parties and considering the line of authorities presented by learned Counsel before this Court as well as the law on the point this Court finds substance in the submissions of Ms. Halder, Sri Biswas and Sri Chattopadhyay. 10. Having heard the parties and considering the line of authorities presented by learned Counsel before this Court as well as the law on the point this Court finds substance in the submissions of Ms. Halder, Sri Biswas and Sri Chattopadhyay. Therefore, this Court upholds the maintainability of the present second writ petition and directs that the matter shall be now proceeded with for consideration on merits under the heading ‘Motions’ in the Monthly Combined List of March, 2016.