Decided on January 30,1976

Hanuman Estates Pvt. Ltd. Appellant
Dhanuka Industries Pvt. Ltd. Respondents


R.M. Datta, J. - (1.)This is one of those hard cases where the justice of the case demands that the prejudice caused to the Applicant by an act of Court should be removed; yet the relief cannot be granted for want of jurisdiction of this Court. The decided cases hold that the jurisdiction, under the circumstances of this case, can be exercised only by the appeal Court which has since taken seisin over the matter and the lower Court has become functus officio even for the purpose of correcting an error in the order as settled by the Department.
(2.)The facts are somewhat strange and peculiar and shortly put, they are as follows:
A suit for ejectment being Suit No. 319 of 1973 was filed on June 4, 1973, by Hanuman Estates Pvt. Ltd. against Dhanuka Industries Pvt. Ltd. In that suit by orders of the Court the Defendant Dhanuka Industries Pvt. Ltd. was directed to deposit and they deposited in Court from time to time a total sum of Rs. 60,000. The order was passed under Sec. 17(2) of the West Bengal Premises Tenancy Act, 1956, as amended. There were several proceedings in between but it is not necessary to refer to the same inasmuch as those are not relevant for the purpose of this application. After the said sum was deposited the Income -tax Authorities asked for leave to intervene and sometime on or about December 10, 1973, the department applied for withdrawal of the said sum by reason of an attachment thereon under the provisions of the Income -tax Act. ,After hearing all the parties on March 20, 1974, this Court delivered a written judgment, the operative portion whereof ran as follows:

Under those circumstances, in my opinion, the Petitioner is entitled to an order and I make an order in terms of prayer (a) of the notice of motion. It is stated in Court by Mr. Sengupta that certain other sums have already been deposited by the Defendant besides the said sum of Rs. 60,000. The same is beyond the scope of and hence, cannot be considered in this application. The Petitioner would take such steps in respect thereto as the Petitioner might be advised. Each party will pay and bear its own costs. The operation of the order is stayed for 10 days.

(3.)Under the Rules of this Court the said order was to be settled by the Department of this Court and in the usual course draft orders were issued to the three Solicitors, viz., Mr. S.K. Mitra for the Income -tax Department, Messrs. Khaitan and Co., for Dhanuka Industries Pvt. Ltd. and Messrs. G. More and Co. for Hanuman Estates Pvt. Ltd.

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