Calcutta High Court
Mahadev Mallick vs Calcutta Municipal Corporation & Ors on 22 November, 2017
Author: I. P. Mukerji
Bench: I. P. Mukerji
OD-4 GA No. 2368 of 2016 with APO No. 253 of 2015 WP No. 1485 of 2004 IN THE HIGH COURT AT CALCUTTA In Appeal from its CONSTITUTIONAL WRIT JURISDICTION CIVIL APPELLATE JURISDICTION Mahadev Mallick Versus Calcutta Municipal Corporation & Ors.
Before:
The Hon'ble Justice I. P. MUKERJI And The Hon'ble Justice MD. MUMTAZ KHAN Date: 22nd November 2017 Appearance:
Mr. Asim Kr. Chattopadhyay, Advocate for the appellant The Court: None appears to oppose this application. The appellant/writ petitioner preferred this appeal challenging the order dated 17th February 2015 passed by this Court in WP No. 1485 of 2004 (Mahadev Mallick & Ors. Vs. CMC). In the order the Court noticed that two trustees had not been made parties. The appellant proposed to amend the writ. The Court observed and ordered that since the writ was of 2004 it had to be dismissed.
Hence this appeal.
In the appeal the appellant/petitioner made a separate application to amend the writ petition. Due to some technical defect, a Division Bench of our Court, on 29th July 2015, dismissed the application but granted liberty to file a fresh one.
Hence the present application.
The writ application was found to be defective by the Court on a technical ground. These defects were curable. It ought not to have shut out the adjudication of the merits of the dispute by dismissing the writ on this technical ground at that stage. If the writ had to be dismissed on 2 the technical ground, it ought to have been so done on the point of maintainability at the time of its admission. If it had been dismissed at the time of admission the writ petitioner would have at least a chance to file a fresh one after curing the defects. It was not proper for the Court to have dismissed after 11 years of its filing.
In the impugned judgment and order it has been observed that it was being dismissed because amendments were sought to be introduced after 11 years. After this dismissal the writ petitioner could not file a fresh writ curing the defects.
At any rate, we find that the amendments which the appellant/writ petitioner proposed are very ministerial, bringing on record two trustees and altering the address of some of the parties in the cause title.
For proper adjudication of the merits of the case we allow the amendments proposed in the application.
The application as taken out for the purpose is allowed by passing orders in terms of prayers (a), (b) and (c) of the petition.
The department is directed to carry out the amendments within three weeks of communication of this order.
The impugned order dated 17th February 2015 is set aside. The present application (GA No. 2368 of 2016) is allowed. Nothing remains of this appeal. The same (APO No. 253 of 2015) is also dismissed accordingly.
Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(I. P. MUKERJI, J.) (MD. MUMTAZ KHAN, J.) R. Bose