Madhusri Konar vs New Central Book Agency Pvt. Ltd.

Indrajit Chatterjee, J. - This is an application under Article 227 of the Constitution of India wherein the order no. 28 dated 11th August, 2015 as passed by the learned Judge, 10th Bench, City Civil Court at Calcutta in Title Suit No. 1615 of 2013 has been assailed before this court. As per that impugned order, learned trial court ordered that the application filed by the opposite party nos. 1 and 2, under Order 7, Rule 11 of the Code of Civil Procedure be kept with the record. Thus, learned trial court practically declined to hear that application under Order 7, Rule 11 of the Code.

There is a history behind this which must be taken into consideration by this court. The prayer for temporary injunction as prayed for by the two plaintiffs, i.e. the opposite party nos. 1 and 2 before this court was rejected by the learned trial court. The matter travelled before this court in F.M.A.T. 390 of 2014 and the said order of the learned trial court was affirmed.

One Special Leave Application was filed by the plaintiffs/opposite parties before the Hon''ble Apex Court and the said Special Leave Application being no.12456/2015 was disposed of by the Apex Court with the following observations:

"Delay condoned.

We do not intend to pass any order on this special leave petition except directing respondent No.3-Jaypee Brothers Medical Publishers

Private Limited to maintain the accounts.

The Special leave petition is disposed of.

We further direct that the trial Court shall expeditiously dispose of the suit preferably, within a period of one year.

However, we make it clear that any observation made by us or by the High Court will not stand in the way to decide the matter in accordance with the provisions of law".

The present opposite party no. 3, who is not before this court (presence is not necessary; notice is hereby waived), filed one application before the Hon''ble Supreme Court praying for modification, clarification of the order just quoted above. That application was registered, vide I.A. No. 2 of 2015. The matter was heard by the Registrar of the Hon''ble Supreme Court of India and as per order, the Registrar declined to register the said application under Order 15, Rule 5 of the Supreme Court Rules, 2013. Being dissatisfied with the said order, one application was preferred by that opposite party no. 3 before the Bench of the Hon''ble Supreme Court and the Apex Court disposed of that I.A. No. 3 of 2015 as per order dated 21-09-2015. It may be noted that in that application giving rise to I.A. No. 2 of 2015, this opposite party no. 3 prayed for modification and clarification of the order of the Apex Court dated 27th July, 2015 in the manner mentioned below :-

"We further direct that the trial Court shall expeditiously dispose of the pending applications under Order 7, Rule 11 CPC in accordance with law and the suit preferably, within a period of one year."

Thus, virtually the Apex Court declined to concede to the prayer of the Opposite Party no.3 for expeditious disposal of the pending application under Order 7, Rule 11 of the Code as filed by the Opposite Party no. 3.

This was the prelude on which this application under Article 227 of the Constitution of India is being heard.

It is submitted by Mr. Ghosh, learned Advocate, appearing on behalf of the petitioners that the learned trial court erred in not disposing of the Order 7, Rule 11 application as jointly filed by the opposite party nos. 1 and 2. He further submitted that another application was filed under Order 7, Rule 11 of the Code by the opposite party no. 3. He cited a decision of the Apex Court as reported in (2003)1 SCC 557 (Saleem Bhai & Ors. v. State of Maharashtra & Ors.) wherein the Apex Court candidly decided that one application under Order 7, Rule 11 of the Code may be disposed of at any stage of the proceeding and even before the written statement is filed as it will end the lis between the parties.

Thus, he submitted that the order of the learned trial court be set aside and the learned trial court be directed to dispose of the application under Order 7, Rule 11 of the Code as early as possible.

He submitted that if this application is disposed of, then that may end the litigation before the court within the stipulated time as fixed by the Apex Court.

In counter to all these, Mr. Roy, learned Advocate, appearing on behalf of the opposite party nos. 1 and 2 filed some documents giving rise to I.A. No. 2 of 2015 and the relevant order passed in I.A. No. 3 of 2015, let those photocopies be taken on record.

He submitted that when the I.A. No. 3 of 2015 was disposed of by the Apex Court, the present opposite party nos. 1 and 2 were duly represented by their respective Advocates, which will be clear from the order of Apex Court (Annexure � F, page 56). He further submitted that after that order was passed by the Apex Court, the present petitioners did not dare to approach the Apex Court for modification or clarification of the order passed on that special leave petition as was done by the opposite party no. 3. He further submitted that the application filed by the opposite party nos. 1 and 2 under Order 7, Rule 11 of the Code is the replica of the petition filed by the opposite party no.3 under the same Rule of the Code.

I have taken the stock of the situation, perused the orders passed by the Apex Court, considered the arguments put forward by the learned Advocates appearing on behalf of the parties. This court in this application under Article 227 of the Constitution of India is not going to interpret the order of the Apex Court. The fact remains that one similar application was rejected by the Apex Court when the opposite party no. 3 prayed for clarification or modification of the order passed in that special leave petition so that the application under Order 7, Rule 11 of the Code may be disposed of expeditiously and if that be so, I can say that the learned trial court passed the order taking into consideration the scenario before that court. According to me, the learned trial court rightly passed the impugned order directing that the application filed under Order 7, Rule 11 of the Code to be kept with the record.

Thus, this revisional application under Article 227 of the Constitution of India being devoid of any merit is fit to be dismissed and I do that.

There will, however, be no order as to costs.

The parties are directed to accommodate the learned trial court to dispose of the suit in question within the time-frame given by the Hon''ble Supreme Court of India.

Office is directed to communicate this order to the learned trial court.

Learned Advocates of the parties will also be at liberty to communicate this order to the learned trial court for early compliance.

Photostat certified copy of this order, if applied for, be supplied to the parties on usual undertaking.