Calcutta High Court (Appellete Side)
3803/2011 on 20 July, 2015
Author: Arijit Banerjee
Bench: Arijit Banerjee
1
s/l.5
20.07.2015. C. O. 3803 of 2011
pk (CAN 6332 of 2015)
Mr. Saptangsu Basu
Mr. Gautam Kumar Roy,
Mr. Supratim Laha,
Mr. Pijush Khaitan
... for the petitioners
Mr. Ranjan Bachawat,
Mr. Ravi Kapur,
Mr. Sanjay Ginodia,
Mr. Manoj Kumar Tiwari
... for the opposite parties.
This is an application for recalling an order dated 10th March, 2015 passed by this Court whereby C. O. 3803 of 2011 was disposed of.
The applicants in this recalling application are the plaintiffs in Title Suit No. 881 of 2011 pending before the learned 9th Civil Judge (Senior Division), Alipore. In the suit the plaintiffs' application for interim injunction to restrain the defendants from using the suit premises as a school, was rejected. The First Appellate Court allowed the Miscellaneous Appeal of the plaintiffs and restrained the defendants from using the suit premises as a school, primarily on the ground that the suit premises was a residential building and not an assembly building and till such time that the defendants got the same converted from residential to assembly building, no school could be run from the said premises.
The said order of the First Appellate Court was challenged by way of revisional application being C. O. 3803 of 2011 by the defendants in the suit. It was submitted on behalf of the defendants/petitioners that after the First Appellate Court passed the order of injunction, the defendants have been able to get the suit premises converted from residential building to assembly building and had obtained certificate to that effect from the Calcutta Municipal Corporation. It was submitted that this document was not in the possession of the defendants when the First Appellate Court passed the interim order of injunction and hence the same could not be placed before the First Appellate Court. A prayer was made for remanding the matter back to the First Appellate Court for hearing of the injunction application afresh in view of the aforesaid conversion certificate having been obtained by the defendants.
2On March 10, 2015 when the civil revisional application was taken up for hearing, nobody appeared on behalf of the opposite parties. This Court, after hearing the learned senior counsel for the revisional petitioners, set aside the order under challenge and remanded the matter back to the court of the learned Additional District Judge, 16th Court at Alipore for hearing Miscellaneous Appeal No. 152 of 2011 afresh. However, this Court injuncted the defendants/petitioners from using any portion of the suit premises for opening or running any play school or montessori school or any commercial establishment till disposal of the said Miscellaneous Appeal.
The present application has been taken out on behalf of the opposite parties praying for recalling of the order dated March 10, 2015. In the recalling petition, it has been sought to be explained as to why no learned counsel represented the opposite parties on 10th March, 2015 when the revisional application was heard and disposed of. In my opinion sufficient grounds have been made out for non-appearance of learned counsel for the opposite parties on 10th March, 2015.
In any event, I have given the matter a second thought and I am of the opinion that in the facts and circumstances of the case an order of remand was not warranted. This Court has no hesitation to say that this Court erred in passing the order of remand. When the First Appellate Court passed the order of injunction, the conversion certificate that the defendants' claim to now possess, was not placed before the First Appellate Court. Hence the order of the First Appellate Court cannot be faulted. Subsequently, obtaining of the conversion certificate by the defendants, as they claim, would not make the order of the First Appellate Court bad or liable to be quashed or set aside. An order that was perfectly correct and tenable in law on the basis of materials before the First Appellate Court, cannot become erroneous just because subsequently some material documents or evidence may come to light.
This Court is a court of records. If this Court feels that it has passed an order, which is erroneous in law, this Court not only has the power but is under a duty to correct such error. Otherwise there is a good chance that an erroneous order will remain forever in the records of this Court. It is not only the jurisdiction and power of the court but it is also the court's duty to recall its order if it is found that the same was incorrect in law or on facts and had been passed by reason of a mistake of the court and would cause in justice to a party 3 not at fault. Correction of mistake of the Court can be done by the Court suo motu or on an application made by the parties. The Court always has the power to recall an order, which has the effect of perpetrating injustice on a party. A Court should have no hesitation in admitting that it had passed an erroneous order, if the conscience of the Court so dictates. In such event, the Court is under a duty to vary, modify or even recall the earlier order, as may be warranted for doing complete justice to the parties.
Having reconsidered the matter, I am of the view that the order dated 10th March, 2015 ought not to have been passed. In stead, this Court should have granted liberty to the defendants to approach the First Appellate Court with an appropriate application in view of the defendants' contention that they have subsequently obtained the conversion certificate from the Kolkata Municipal Corporation. Conscience of this Court dictates that the order dated 10th March 2015 be recalled.
In view of the aforesaid, the order dated 10th March, 2015 is re-called. CAN 6332 of 2015 is, thus, allowed.
The revisional application being C. O. 3803 of 2011 is disposed of by granting the revisional petitioners/defendants liberty to approach the First Appellate Court with an application for modification/variation/discharge of the order of injunction, in view of the claim of the defendants that they have obtained conversion certificate in respect of the suit premises and are now entitled in law to run a school from the suit premises. If such an application is made, the First Appellate Court will consider the same on the basis of materials produced before the learned court and in accordance with law without being influenced by any observation in the present order and will dispose of such application within a period of two months from the date of the application.
However, the defendants will be injuncted from using the first floor flat or the rear lawn or any portion of the suit premises for opening or running any play school or montessori school or any commercial establishment till disposal of the application that the defendants may make before the learned First Appellate Court.
Accordingly, the revisional application being C. O. 3803 of 2011 and C.A.N. 6332 of 2015 both stand disposed of.
Urgent photostat certified copy of this order be supplied to the parties, if applied for, on priority basis.
(Arijit Banerjee, J.) 4