Calcutta High Court (Appellete Side)
Smt. Nilima Das vs Bijay Kumar Manish Kumar Huf on 3 March, 2016
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.03. 2016
CAN 12371 of 2015
CO No. 3959 of 2015
Smt. Nilima Das
v.
Bijay Kumar Manish Kumar HUF
Mr. Malay Kumar Ghosh
Mr. S. Datta
Mr. Goutam Dey
Mr. S. Nandi
Mr. Arnab Dutta
... for the petitioner.
Mr. Saptangshu Basu
Mr. Ganesh Prasad Shaw
... for the opposite party.
In this application the petitioner has prayed for, clarification and/or
modification of the order dated November 30,2015 passed by this Court in CO
No. 3959 of 2015. By the said order dated November 30,2015 this Court rejected
the revisional application filed by the petitioner, being the defendant in the
Ejectment Suit No. 603 of 2010 wherein the petitioner had challenged the orders
dated September 17,2013 and September 7,2015, passed by the learned Vth
Bench, Small Causes Court at Calcutta.
By the order dated September 17,2013 the learned Court below held the
defendant-petitioner to be in default in payment of rent for the month of July
2008 and September 2008 and directed her to deposit Rs. 4936/- to the plaintiff-
opposite party within one month from the date of the order.
By the order dated September 7,2015 the learned Court below allowed the
application of the plaintiff-opposite party under Section 7(3) of the West Bengal
Premises Tenancy Act, 1997 by striking out the defence of the defendant-
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petitioner against the delivery of possession on the ground that the defendant-
petitioner failed to comply with the said order dated February 6,2013.
After hearing the submissions made by the learned advocate, who
represented the petitioner in the said civil revisional application and after
recording all reasons by the said order dated November 30,2015 this Court
rejected the said revisional application.
This clarification/modification application has been filed by the petitioner
by engaging a new set of advocates praying for, in effect, that the revisional
application be allowed. Mr. Malay Kumar Ghosh, learned senior counsel
appearing for the petitioner fairly submitted that this application has been filed
by the petitioner by urging a new point which was not argued before this Court at
the time of hearing of the revisional application.
At the very out set, Mr. Saptangshu Basu, learned senior counsel
representing the opposite party-plaintiff raised an objection with regard to the
maintainability of the present application. He strenuously urged that when the
revisional application itself was disposed of on merit by the order dated
November 30,2015, the present application of the defendant-petitioner for
clarification and/or modification of the said order is not maintainable. In support
of such contention Mr. Basu relied on the decision of the Supreme Court in the
case of Tamil Nadu Electricity Board & Anr. v. N. Raju Reddiar & Anr., reported
in (1997) 9 SCC 736 and the decision of the Division Bench of this Court in the
case of Law Clerks Association, High Court, Calcutta v. Hon'ble Chief Justice,
High Court, Calcutta, reported in 2008(1) CLJ(Cal) 939.
However, Mr. Ghosh appearing for the petitioner submitted that without
first approaching this Court to urge the new point of law, the petitioner would
face difficulty to challenge the order dated November 30, 2015 passed by this
Court before the Supreme Court on a ground not argued in the revisional
application.
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Since the opposite party has raised the point of maintainability of this
application, this Court should decide such point first.
The said order dated November 30,2015 has not been challenged by filing
any special leave petition before the Supreme Court nor any application has been
filed for review of the said order on any ground specified in Order XLVII Rule 1 of
the Code of Civil Procedure.
In the present application, it is not the case of the petitioner that an
argument advanced on her behalf by her erstwhile advocate before this Court
during the hearing of the revisional application was not considered by this Court
in the order dated November 30,2015 nor that any portion of the said order dated
November 30,2015 suffers from any ambiguity requiring some clarification. It is
well settled that when an revisional application or writ petition has been disposed
of by a Court on merit, the Court becomes functus officio and it cannot entertain
any application for modification of the order disposing of writ petition or
revisional application, as the case may be. In this regard, reference may
profitably be made to the decision of the Supreme Court in the case State of U.P.
vs. Bhrahm Dutt Sharma, reported in AIR 1987 SC 943.
Although, Mr. Ghosh appearing for the petitioner submitted that in the
case of Tamil Nadu Electricity Board(Supra) cited on behalf of the respondent an
application for clarification of the order passed by the Court was filed after dismissal of the review application, I am unable to convince myself to entertain the present application.By filing the present clarification/modification application, the petitioner is seeking for rehearing of the disposed of revisional application on merit. In the case of K.A.Ansari vs. Indian Airlines Ltd., reported in (2009) 2 SCC 164 the Supreme Court held that when a proceeding stands terminated by final disposal of the writ petition, a subsequent application for clarification can be maintained only when the order is not clear and the party 4 against whom it has been made is trying to take advantage because the order is couched in ambiguous or equivocal words. In the case of Law Clerks Association(Supra) the Division Bench of this Court has held that when an appeal and an application both were disposed of by passing a reasoned order any subsequent application for modification of the substantive part of the order disposing of the appeal and the application is not maintainable.
For all the foregoing reasons, I am unable to entertain the present application of the petitioner and the same stands dismissed.
However, there shall be no order as to costs.
Certified website copies of the order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.
(Ashis Kumar Chakraborty, J.)