Calcutta High Court (Appellete Side)
Kanishk Sinha vs Shri Narendra Modi And Others on 7 May, 2019
1 S/L. 39.
May 7, 2019.
MNS.
C. O. No. 1656 of 2019 Kanishk Sinha Vs. Shri Narendra Modi and others Mr. Kanishk Sinha ... petitioner in person.
Affidavit-of-service filed in Court today be taken on record. Despite service, none appears on behalf of the opposite parties. The scope of the present challenge is limited. In a money suit filed by the petitioner, the trial court returned the plaint to the petitioner on the ground of non-compliance of Section 80(1) of the Code of Civil Procedure.
Being thus aggrieved, the petitioner had preferred a miscellaneous appeal, which was dismissed at the admission stage, against which the present application has been filed under Article 227 of the Constitution of India.
It appears from the order impugned herein that the appellate court exercised jurisdiction not vested in it by law in touching the merits of the appeal despite having held that the miscellaneous appeal was not maintainable at all and dismissing it summarily. Summary dismissal of an appeal under Order XLIII of the Code can only be under Order XLI Rule 11 of the Code.
2
While considering an appeal under the said provision, the appellate court ought to have taken into consideration whether both factual and legal aspects were involved in the appeal, since questions of law as well as fact can be raised in a miscellaneous appeal.
The petitioner had a prima facie arguable case in the appeal, inasmuch as the trial court apparently did not go into the question of urgency, as pleaded in the plaint itself, while returning the plaint, the appellate court ex facie acted without jurisdiction in dismissing the appeal in limine.
However, it would be inappropriate to enter into the merits of the appeal itself, since the appellate court itself did not do so. A consideration on merits by this Court would rob either of the parties of a forum, as the scope of a further challenge against the appellate court's order would be taken away in the event this Court usurps such jurisdiction.
Hence, C. O. No. 1656 of 2019 is allowed, thereby setting aside the impugned order and directing the District Judge at Alipore, District- South 24-Parganas, to entertain and admit the miscellaneous appeal, bearing Miscellaneous Appeal No. 105 of 2019 (R-
105) and to hear the same and dispose of the appeal on merits, upon giving appropriate opportunity of hearing to both sides.
There will be no order as to costs.
Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.) 3