Swapan Kumar Jana and Others vs Asok Kumar Malty

Nripendra Kumar Bhattacharyya, J.—Heard the learned Senior Advocate for the petitioners Mr. Swadesh Bhusan Bhunia appearing with the learned Advocates Mr. Pinaki Ranjan Mitra and Mr. Asim Kumar Roy and the learned Senior Advocate for the opposite party Mr. Bhaskar Bhattacharyya appearing with the learned Advocate Mr. Fazle Rabi. Considered the materials on record. Let the affidavit-in-opposition to the supplementary affidavit affirmed on 4th January, 1996 be kept on record.This revision u/s 115 of the CPC arises at the instance of the plaintiffs in Title Suit No. 214 of 1994, challenging the appellate court''s judgment dated 10th November, 1995 passed in Misc. Appeal No. 23 of 1995 by the learned Assistant District Judge, Contai, Midnapore, whereby the learned Judge allowed the said misc. appeal against the respondents plaintiffs without any order as to costs and set aside the order of the learned Munsif being Order No. 16 dated 2nd September, 1995 passed in Title Suit No. 214 of 1994, and restrained the plaintiffs respondents from putting lock on the grill gate in dispute from 6 A.M. to 5 P.M. daily. The present petitioners filed a suit being Title Suit No. 214 of 1994 before the court of the learned Munsif, 1st Court, Contai, praying, inter alia, for a declaration that the defendant in that suit, who is the opposite party herein, has no right of easement over that pathway and also for permanent injunction. Similarly, the opposite party herein filed a Title Suit before the court of the said learned Munsif being Title Suit No. 252 of 1994, inter alia, praying for a declaration that he has a right of easement of pathway over the suit property and the declaration was prayed against the present petitioners and a permanent injunction was also prayed for. In Title Suit No. 252 of 1994 both the parties filed applications for injunction and an order of status quo was passed by the learned Munsif on the said applications of both parties made under Order 39, Rule 1 and. 2 of the Code of Civil Procedure. The defendant in that suit, the opposite party herein, preferred two misc. appeals against the said orders being Misc. Appeal No. 1 of 1994 and Misc. Appeal No. 2 of 1994 before the court of the learned District Judge, but the appeals were disposed of by the learned Assistant District Judge, Contai, dismissing the said two appeals. Just now, Mr. Bhattacharyya submitted that if upon two applications one order is passed, then one appeal will be there. Similarly, in Title Suit No. 214 of 1994, where the present petitioners are the plaintiffs, the applications under Order 39, Rule 1 and 2, C.P.C. were filed by the plaintiffs and the defendants in that suit and on that applications the learned Munsif, 1st Court, by his order no. 16 dated 2nd September, 1995 directed maintenance of status quo in respect of the suit land till the disposal of the suit. With that order of status quo he disposed of the applications filed by the plaintiffs and the defendant in the suit. Against that the opposite party herein filed an appeal being Misc. Appeal No. 23 of 1995 and the same came up for hearing before the court of the learned Assistant District Judge, 1st Court, Contai. Thereafter, the respondents in that appeal, the petitioners herein, made an application before the appellate court under Order 39, Rule 4 C.P.C. for vacating that interim order and that application was pending. In the meantime, the respondents in that appeal moved this Court under Article 227 of the Constitution-of India and N.K. Mitra, J. by his order dated 22-9-95 passed the following order.

Let both the applications under Order 39 Rule 4 filed by the petitioner in the Misc. Appeal preferred by the Caveator Opposite Party and Misc. Appeal itself be heard out positively within 2 weeks after reopening in view of the special facts and circumstances of the case and the time limit, so fixed above is peremptory and mandatory.

So far as the impugned order is concerned, I am not inclined to interfere at this stage. I, however make it clear that if the appeal and the application as mentioned above are not heard out on the date as fixed by this Court by this order, the petitioner will be at liberty to make proper application before the lower appellate court and the lower appellate court will be free to pass appropriate order, notwithstanding any order passed by this Court.

With these observations, the revisional application is disposed of as above without any order as to costs.

The matter went back to the court of appeal and the appellate court by the order impugned allowed the appeal as indicated earlier.

The only submission that has been made in the background of this case by Mr. Bhunia is that on the face of the order of the High Court the appellate court has erred in law in not disposing of the respondent''s application under Order 39, Rule 4 along with the appeal. He further contends that the revisional court under Article 227 off the Constitution of India has the power to set aside the decree if there is any irregularity or illegality. In support of his submission, Mr. Bhunia referred to a Supreme Court''s decision in the case of Gulabbai Vs. Nalin Narsi Vohra and others, and the referred to paragraph 20 of that decision at pages 493 to 495. From that decision it appears that, relying on another Supreme Court''s decision in the case of Variety Emporium Vs. V.R.M. Mohd. Ibrahim Naina, corresponding to Variety Emporium Vs. V.R.M. Mohd. Ibrahim Naina, the High Court, as has been held by the Apex Court, has the power under Article 227 of the Constitution of India to set aside the decree in an appropriate case.

Mr. Bhattacharyya on the other hand contended on behalf of the opposite party that in effect while disposing of the appeal by the appellate court the entire injunction matter has been disposed of, including the petition of the petitioners under Order 39, Rule 4 of the Code of Civil Procedure, though the same is not mentioned in the order itself and as such the order should not be interfered with.

Having heard the learned Advocates for the parties and considering the materials on record, I am of the view that the order may be an illegal one because from the record it appears that the application of the petitioners under Order 39, Rule 4 of the CPC has not been disposed of as there is no such order showing that the same has been disposed of. The learned Judge of this Court in his order dated 22-9-95. as referred to above, gave liberty to the petitioners to make proper application of the petitioners under Order 39, Rule 4 C.P.C. and the appeals are not disposed of on the date as fixed by the. High Court in that order. No such application has been made by the petitioners before the appellate court, in that the order may be an illegal one. But a learned Judge of this Court, sitting singly, has held that the revisional power is not meant for correcting an illegal order. The revision cannot be used and utilised for the purpose of correcting the illegal order and the revisional power is not to be exercised unless the error involves a question of jurisdiction (Ajay Kumar Sinha vs. Mrs. Anne Maria Barrato & Ors., reported in 1989 1 CLJ 556. That apart, as I have already pointed out that the Revisional Court in its order dated 22-9-95 gave the liberty to the petitioners to make an application before the appellate court if the application of the petitioners under Order 39, Rule 4 C.P.C. have not bee taken up along with the appeal, I have already pointed out that no such applications have been filed. In such circumstances, I am of the view that the present revision does not constitute a warrant for interference in the order impugned.The revisional application is, accordingly, dismissed.

There will be no order as to costs.