SRIHARI CHARAN MAITY Vs. SRI SUDHANGSHU BERA
LAWS(CAL)-2019-5-12
HIGH COURT OF CALCUTTA
Decided on May 06,2019

Srihari Charan Maity Appellant
VERSUS
Sri Sudhangshu Bera Respondents

JUDGEMENT

SABYASACHI BHATTACHARYYA,J. - (1.) In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side C.O. No. 1682 of 2019 Srihari Charan Maity Vs.Sri Sudhangshu Bera and others Mr. Kanailal Maity ..Representative (son) of Petitioner (in person) Mr. Kanailal Maity, the son of the petitioner, seeks to move the matter in person on the basis of the power of attorney granted for the said purpose to him by his father, the petitioner, who is about 97 years old. Although Order III of the Code of Civil Procedure debars any third-party, apart from an advocate, from representing a litigant in court, the said provision is strictly applicable to suits and original proceedings. Since Article 227 of the Constitution of India confers power of judicial review embodied in the constitution itself, it is not circumscribed by any statute, including the Code of Civil Procedure, which is enacted under the authority of the constitution. Thus, the rigours of Order III of the Code of Civil Procedure do not strictly apply to an application under Article 227 of the Constitution of India.
(2.) Since this court even has suo moto power to pass an order under Article 227 of the Constitution, the role of the petitioner being only to draw the attention of the court to the concerned facts, this court chooses to entertain the revisional application on the representation of the son of the petitioner and to grant leave to the said son, Kanailal Maity, to represent the petitioner, in the aforesaid circumstances and in view of the extreme urgency involved. This apart, since the said son, namely Kanailal Maity, represented the petitioner at various stages in the court below, he ought to be otherwise competent and aware enough of the facts, to effectively represent the petitioner. By the impugned order, the appellate court stayed the operation of an order of ad interim injunction dated March 18, 2019 passed by the trial court restraining the defendants/opposite parties from interfering with the peaceful rights of the plaintiff/petitioner over the suit property for a limited period. Although the trial court's order was passed ex parte, there appears to be sufficient prima facie proof in the form of previous title deeds and extracts from the records of rights, which indicate the right, title and interest of the petitioner in respect of the suit property, as recorded by the trial court while passing the ex parte ad interim injunction order.
(3.) However, the appellate court, by staying such order, virtually allowed the appeal at the ad interim stage without hearing both the parties on the merits of the appeal. Moreover, the reasoning of the appellate court is prima facie without any basis. The appellate court went on to hold that since the defendants had obtained permission to make construction on premises adjacent to the suit property, there ought not to be any injunction restraining the defendants from raising the construction on their own property. However, it is evident from the impugned order as well as the materials on record that injunction was sought by the petitioner in respect of their own property, that is, the suit property, and not the adjacent property of the defendants. Since, as per the appellate court's observations, the defendants have no right, title and interest in the suit property, there was no occasion to stay the operation of the ad interim injunction order passed by the trial court. As such, being prima facie satisfied that the appellate court acted without jurisdiction in passing the impugned order, C.O. No.1682 of 2019 is entertained. The petitioner will serve copies of the revisional application on the opposite parties and/or the learned advocate appearing for the opposite parties in the appellate court below, indicating that the matter will appear as a contested application in the monthly list of June, 2019. The petitioner will file an affidavit-of-service on the next date of hearing.;


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