2007 Supreme(Cal) 300
High Court Of Calcutta
Tapan Kumar Dutt, J.
METRO CASH AND CARRY INDIA PVT.LTD - Appellant
Versus
SASANKA SANFUI - Respondent
C. O. 734 Of 2007
Decided On : 04/19/2007
Advocates Appeared:
AMAL KUMAR GHOSHAL, ANAMIKA DAS, ANITA KHATRI, ARUNANGSHU DAS, DEBTOSH KHAN, GANESH JAJODIA, INDRANIL BASU, JOGESH BANERJEE, JOTIRMOY GUHA, MALAY KUMAR ADHIKARI, N.GANPATHI, P.K.Hazra, P.P.MUKHERJI, RAVI KAPOOR, S.B.SARAJ, S.K.Kapur, S.P.Mukherjee, SABYASACHI PAL CHAUDHARY, Saktinath Mukherjee, Salamuddin, Samar Kumar Banerjee, SAMARENDRA LAL BASU, SOUMEN SEN, SWAPAN BHADRA, SWATARUP BANERJEE, TRIDIB KUMAR SARKAR
The High Court's jurisdiction under Article 227 of the Constitution of India is limited to correcting gross errors of jurisdiction or keeping subordinate courts within the bounds of their jurisdiction. It cannot act as an appellate court or review or re-weigh the evidence upon which the subordinate court has passed an order.
Headnote:
CIVIL PROCEDURE - Article 227 - Jurisdiction - Interference with impugned order - Conditions - Maintainability of misc. appeal - Determination by lower appellate court.
Fact of the Case:
Petitioner, Metro Cash and Carry India (P) Ltd., a lessee of West Bengal Industrial Development Corporation (WBIDC) and State of West Bengal, challenged an order passed by the trial court directing the petitioner to stop construction activities on the demised premises. The trial court's order was based on an application filed by some of the plaintiffs in a partition suit, alleging that the petitioner was illegally occupying the suit property. The petitioner filed a misc. appeal before the lower appellate court and also sought a stay on the trial court's order. The lower appellate court admitted the appeal but did not grant a stay.
Finding of the Court:
The High Court held that the conditions necessary for exercising jurisdiction under Article 227 of the Constitution of India by way of interfering with the impugned order did not exist in the present case. The court observed that it could not act as an appellate court and that the arguments made by the petitioner and WBIDC touched the merits of the appeal, which should be dealt with by the lower appellate court at the appropriate time.
Issues: 1. Whether the High Court can interfere with the impugned order passed by the lower appellate court under Article 227 of the Constitution of India? 2. Whether the misc. appeal filed by the petitioner is maintainable?
Ratio Decidendi: 1. The High Court can only interfere with an impugned order under Article 227 of the Constitution of India if the subordinate court has assumed a jurisdiction which it does not have, failed to exercise a jurisdiction which it does have, or exercised its jurisdiction in a manner not permitted by law, resulting in failure of justice or grave injustice. 2. The maintainability of the misc. appeal filed by the petitioner is a matter to be determined by the lower appellate court.
Final Decision: The High Court declined to interfere with the impugned order and disposed of the petition under Article 227 of the Constitution of India. The court clarified that it had not expressed any opinion on the merits of the appeal and that the lower appellate court was free to decide the misc. appeal independently, in accordance with law.
( 1 ) A partition suit being Title Suit No. 121 of 1962 is pending in the Trial court concerned at Alipore and in such suit a receiver has been appointed in respect of the suit properties. The petitioner is not a party in the partition suit. It also appears that a very substantial property is involved in the said partition suit and a large number of persons are parties in the said suit. It also appears that the petitioner is claiming to be a lessee under the proforma respondents. e. the West Bengal Industrial Development Corporation and the State of West bengal in respect of a total area of 7. 53 acres of land which is a part of the aforesaid suit properties. According to the petitioner the said land which has been let out to the petitioner has been vested in, and/or acquired by, the proforma respondents and that the proforma respondents have perfect title in respect of the said demised land in respect of which the petitioner is a lessee. The petitioner claims that the petitioner is in actual physical possession of the demised land since April/may, 2006 and the construction undertaken by the petitioner on the said land is substantial. It also appears that neither of the proforma respondents are parties to the partition suit. The petitioner has further alleged that the writ petitioner being W. P. No. 13184 (W) of 2006 has been filed in the hon'ble High Court at Calcutta challenging the acquisition proceedings and that such writ petition is still pending. It further appears that by order dated 30. 05. 2006 an Hon'ble Single Judge of this Court was pleased to give directions for filing of affidavits and also grant an interim order to the effect that "steps taken, in the meantime, will abide by the result of this writ petition". The petitioner received a letter dated 20. 06. 2006 from the learned Advocate for some of the plaintiffs in the said suit wherein it was mentioned that the plaintiffs of the said suit for partition filed the suit in the year 1956 being T. S. No. 43 of 1956 which was renumbered as T. S. No. 121 of 1962, that sometime in 1958 one Ranjit Kumar Ganguly, learned Advocate, was appointed a receiver in respect of the suit properties and after the death of the said receiver, one Sri sankar Sen, learned Advocate, has been appointed a receiver sometime in the year 2000, that steps are to be taken against the said receiver for there was serious allegation against the said receiver as mentioned in the said letter dated 20. 06. 2006 and it was further alleged in the said letter that many portions of the suit properties have been "illegally occupied and grabbed by the outsiders and/or trespassers by making illegal constructions thereupon and also Govt. of west Bengal has been vesting and making acquisition of many portions of the suit properties, illegally and unlawfully without taking any permission of the ld. Court". It was further mentioned in the said letter that on 16. 06. 2006 the learned Trial Court ordered inter alia on an application filed by one of the parties to the suit that "all the parties in the suit are hereby directed to maintain status quo in respect of the suit property by restraining themselves from selling, transferring, alienating or otherwise disposing of the suit property between an inter-party or any third party or in any manner whatsoever from changing the nature and character of the suit property till disposal of the suit".
( 2 ) IT appears that by another order dated 03. 07. 2006, the learned Trial Court passed an order requesting the Superintendent of Police, South 24-Parganas, alipore to direct the O/c, Purba Jadabpur P. S. to see that both the parties or their men and agents are maintaining injunction order dated 16. 06. 2006.
( 3 ) THE petitioners' case is that on 11th February, 2007, the petitioner was shocked and surprised to receive a letter from the Inspector-in-charge, Purba jadabpur P. S. inter alia directing the petitioner to immediately stop all construction activities in the dem
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