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2019 DIGILAW 59 (CAL)

Jagadish Das v. Bank of India

2019-01-11

BIBEK CHAUDHURI, DIPANKAR DATTA

body2019
JUDGMENT : 1. This appeal was listed yesterday, on being mentioned by the learned advocate-on-record for the appellant, under the heading ‘To Be Mentioned’ with an endorsement ‘Non-Prosecution’. None appeared for the appellant. We passed over the matter. It has been listed today once again with the same endorsement. 2. Mr. Ahmed, learned advocate for the appellant submits that there is a possibility of settlement and the appeal may be delisted. 3. Having enquired into the facts giving rise to the writ petition before the learned Judge, we have been informed that the appellant was a bank employee whose service was terminated because of proved misconduct. He was involved in financial irregularities. It is incomprehensible that a bank employee whose service stood terminated because of financial irregularities could be taken back in service. We disbelieve the statement that there is a possibility of settlement. 4. We called upon Mr. Ahmed to argue on the merits of the appeal and have heard him. 5. It appears that the writ petition, out of which this appeal arises, was dismissed for default on 8th January, 2015 by a learned Judge of this Court. More than 2½ years later, the appellant applied for recall of such order. In the meanwhile, he had changed his advocate-on-record. Mr. Ahmed, the newly engaged advocate-on-record appeared before the learned Judge on 15th July, 2018 and pressed the application for recall. The learned Judge found, on perusal of the application, that the explanation given for recall of the order was not only sketchy but also very unusual in nature. No explanation was given as to why the appellant’s earlier advocate did not appear before the learned Judge when His Lordship dismissed the writ petition for default. The order passed by the learned Judge further records that no vakalatnama was on record, executed by the appellant in favour of Mr. Ahmed. Although a submission had been made that the vakalatnama had been annexed to the application for recall, His Lordship found the statement to be incorrect. Having regard to the casual statement made in the application for recall and also considering the fact that there was no sufficient justification for the belated approach, His Lordship proceeded to dismiss the application for recall. 6. After the learned Judge dictated the order resulting in the application being dismissed, Mr. Having regard to the casual statement made in the application for recall and also considering the fact that there was no sufficient justification for the belated approach, His Lordship proceeded to dismiss the application for recall. 6. After the learned Judge dictated the order resulting in the application being dismissed, Mr. Ahmed prayed for leave to withdraw the same and to file a fresh application. His Lordship took exception that Mr. Ahmed despite the opportunity had not made such prayer in course of argument. His Lordship was also of the view that the prayer for liberty need not be granted since the case did not call for it. 7. It is this order that is under challenge before us in the intra-court writ appeal. 8. Having perused the memorandum of appeal, we are of the considered view that it is not in form, yet, the Additional Stamp Reporter has opined that it is ‘in form’. The manner in which the memorandum of appeal has been drafted makes the ignorance of law of the draftsman clear. Be that as it may, without being too technical in our approach, we treated the memorandum of appeal to be in form. However, what dissuades us from interfering in the appeal, apart from the fact that the order of the learned Judge is well reasoned, is the aspersion cast on the learned Judge in Ground-VI of the memorandum of appeal. An advocate who himself is ignorant of law ought not to have urged a ground which, in our perception, is simply derogatory and in bad taste. 9. For the reasons aforesaid, we find no merit in the appeal. The same stands dismissed. There shall, however, be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.