Sri Bitan Kayal and Others vs The State of West Bengal and Others

Biswanath Somadder, J.

Re: CAN 7655 of 2012

This is an application arising out of an order dated 3rd July, 2012, whereby the W.P. 3716 (W) of 2011, stood dismissed for reasons stated therein. In the instant application, the applicant/writ petitioner has prayed for recalling of the said order dated 3rd July, 2012, citing personal ground of the learned Advocate-on-record of the applicant/writ petitioner, who was not present at the time of passing of the said order. Reasons on account of illness have been stated to justify the absence of the learned Advocate, when the writ petition was taken up for consideration on 3rd July, 2012.

However, when the instant application is called, even now the learned Advocate for the applicant/writ petitioner is absent. The question is what should a Court do in such circumstances? Should the Court keep such a matter pending in the list for an indefinite period of time, till it suits the convenience of the learned Advocate for the applicant/writ petitioner to enter appearance and press the matter or should the Court take into consideration the observations made in the order dated 3rd July, 2012, wherein reasons for passing of the said order have been elaborated.

For convenience, the order dated 3rd July, 2012, is reproduced hereinbelow, in its entirety:-

This matter was taken up for consideration on 28th June, 2012 and upon considering the prayer for adjournment made on behalf of the petitioners it was adjourned till today, subject to payment of costs of 20 G.Ms. to the State. It was further observed in the order dated 28th June, 2012, that in default the writ petition stands automatically dismissed.

Since there is no representation on behalf of the petitioners, this Court unable to ascertain as whether the cost of 20 G.Ms. as imposed in the order dated 28th June, 2012, has been paid or not.

There is no scope for this Court to keep the instant matter pending in the supplementary list for an indefinite period of time till it suits the convenience of the petitioners.

In such circumstances, the writ petition is liable to be dismissed and is accordingly dismissed.

Even a bare glance at the order, as quoted above, would reveal that there has been no bona fide intention on the part of the writ petitioner to proceed with the matter, at any point of time, with due diligence. It was under such circumstances that the Court was left with no option but to dismiss the writ petition, while making certain observations.

In a recent decision rendered by this Court in W.P. 10154 (W) of 2011 (Guru Charan Ghosh v. The State of West Bengal & Ors.), it has been observed, inter alia, to the effect, that there cannot be any justification for the Court to show any kind of indulgence, if there appears to be no positive effort on the part of the writ petitioner to press his/her matter. It was further observed that allowing a matter to remain in the list indefinitely, till such time someone comes forward to press the application/writ petition, will send a wrong signal from the judiciary--which is already overburdened with litigation - to the general public.

Under such facts and circumstances, the application for appropriate order is liable to be dismissed and is accordingly dismissed. Photostat certified copy of this order, if applied for, be given to the learned Advocate for the petitioner.