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2019 DIGILAW 288 (CAL)

NIRUPAM BISWAS v. NITAI SUNDER GHOSH

2019-02-28

ARINDAM MUKHERJEE, BISWANATH SOMADDER

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JUDGMENT : BISWANATH SOMADDER, J. 1. By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay. 2. The instant appeal arises out of an order dated 11th January, 2019, passed by a learned Single Judge while sitting in Special Contempt jurisdiction. The said order which was passed in CPAN 399 of 2018 arising out of W. P. 137 (W) of 2016, is reproduced hereinbelow:- "The order dated 1st July, 2016 is corrected by adding 'without' instead of the word 'with' in the last line of the said order. The last sentence of the said order will now read correctly as "services of the writ petitioners will not be interfered with without the leave of this Court". It is unfortunate that the alleged contemnors have taken advantage of this typing mistake disobeying the order dated 1st July, 2016. List this contempt application on 8th February, 2019 for the alleged contemnors to file a compliance report in this Court or an order of stay from a superior Court." 3. A bare perusal of the impugned order reveals that the learned Single Judge while sitting in his Special Contempt jurisdiction has proceeded to correct an order dated 1st July, 2016, which was passed by him sitting in his Constitutional Writ jurisdiction while disposing of a writ petition of Nitai Sunder Ghosh & Ors., being W.P. 137 (W) of 2016. 4. In our view, the learned Single Judge ought to have made this correction while sitting in His Lordship's Constitutional Writ jurisdiction on the basis of an application being made by either of the parties seeking correction of the order dated 1st July, 2016. If it was a suo motu exercise of jurisdiction, it ought to have been done by the learned Single Judge not sitting in the Special Contempt jurisdiction, but sitting in the Constitutional Writ jurisdiction. However, the order dated 11th January, 2019, reveals that it was passed in CPAN 399 of 2018, thereby clearly falling in error of exercise of jurisdiction by the learned Single Judge. 5. On this ground alone, the order dated 11th January, 2019, is liable to be set aside and is accordingly set aside. 6. The parties are at liberty to take further steps in accordance with law. 7. The appeal and the application for stay stand disposed of accordingly. 8. 5. On this ground alone, the order dated 11th January, 2019, is liable to be set aside and is accordingly set aside. 6. The parties are at liberty to take further steps in accordance with law. 7. The appeal and the application for stay stand disposed of accordingly. 8. Urgent photostat certified copy of this order, if applied for, be given to the parties. Arindam Mukherjee, J. : I agree.