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2017 DIGILAW 119 (CAL)

Reba Sengupta v. Lina Ganguly

2017-01-25

BISWANATH SOMADDER, SANKAR ACHARYYA

body2017
JUDGMENT : Biswanath Somadder, J. 1. The applicants in CAN 11035 of 2016 seek leave to appeal against the order dated 6th October, 2016, passed by the learned Single Judge, in W.P. 24497(W) of 2016. It appears from the records that the writ petition which was filed by Lina Ganguly & Ors., was in respect of certain issues arising out of an election concerning Observance Co-operative Housing Society Ltd., where all the applicants herein are members. It is the admitted position that the applicants were not made parties to the writ proceeding where the following order was passed on 6th October, 2016. "Let the affidavit of service filed in Court today be kept with the record. The petitioners are directed to amend the cause title of the writ petition by incorporating the West Bengal Co-operative Election Commission as a respondent to the writ petition and to correct the description of the respondent No. 6 and to serve a copy of the writ petition upon Mr. Nayek, the learned advocate for the Co-operative Election Commission. Heard the learned advocates for the respective parties. This writ petition should be decided on affidavits. Let affidavits-in-opposition to the writ petition be filed within four weeks from date. Let affidavits-in-reply thereto, if any, be filed within two weeks thereafter. Let this matter appear for hearing in the combined monthly list of December, 2016 within the first 25 matters under that heading. After hearing the learned advocates for the respective parties and after going through the writ petition, I am of the view that the petitioners have been able to make out a prima facie case for the grant of an interim order. The balance of convenience and in convenience also lies in favour of passing an interim order inasmuch as refusal to pass an interim order shall affect the petitioners more than the grant of it is likely to prejudice the respondents. As such, there shall be an interim order in terms of prayer (f) to the writ petition till December 6, 2016 or until further order whichever\ is earlier. The petitioners are further directed to communicate the gist of this order to all the respondents except those who are represented by their learned advocates in Court today, positively within a week's time." 2. The petitioners are further directed to communicate the gist of this order to all the respondents except those who are represented by their learned advocates in Court today, positively within a week's time." 2. The applicants have also taken out an application for stay of the order, being CAN 11046 of 2016 and the grounds for seeking to prefer the appeal have been spelt out in MAT 1946 of 2016. 3. Ordinarily, in an Intra-Court Mandamus Appeal, the Court should be loathed to interfere with an ad interim order which has been passed by the First Court, that too, for a limited duration. However, in the facts of the instant case, we notice that the interim order in terms of prayer (f) of the writ petition is not supported by any cogent and justifiable reasons. Reasons may not be elaborately stated by any Court while passing an ad interim or an interim order; but, at least, some intelligible reasons ought to appear in such orders. Simply by observing that the petitioners have been able to make out a prima facie case for grant of an interim order is not enough. The prima facie case made out by the writ petitioner is required to be spelt out, at least briefly. 4. For reasons stated above, we grant leave to the applicant in CAN 11035 of 2016 to prefer MAT 1946 of 2016, which, by consent of the parties, is treated as on day's list and disposed of along with the application for stay by setting aside the order passed by the learned Single Judge, dated 6th October, 2016. 5. The writ petition shall be heard by the learned Single Judge upon exchange of affidavits, as was directed by the Court in the order dated 6th October, 2016. However, the applicants shall be formally added as party to the writ proceeding by the advocate-on-record of the writ petitioners upon amendment of the cause-title of the writ petition and a copy of the amended writ petition shall be served upon the advocate-on-record of the applicants within a fortnight from date. Applicants shall file their affidavit-in-opposition to the writ petition within a fortnight therefrom. Reply, if any, within a week thereafter. Once affidavits have been exchanged, the parties will be at liberty to approach the learned Single Judge for early hearing of the writ petition. Applicants shall file their affidavit-in-opposition to the writ petition within a fortnight therefrom. Reply, if any, within a week thereafter. Once affidavits have been exchanged, the parties will be at liberty to approach the learned Single Judge for early hearing of the writ petition. We, however, make it clear that this order shall not preclude the writ petitioners from re-approaching the learned Single Judge seeking such interim orders as prayed for in the writ petition, subject to giving notice to the applicants herein. The learned Single Judge, in such an event, will hear out such application for interim order without being influenced in any manner by the observations made hereinabove. Sankar Acharyya, J. : I agree.