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Judgment
Sabyasachi Bhattacharyya, J
The present application has been filed for restoration of C.O. 2222 of 2011 by recalling the order dated September 3, 2019 passed by a co-ordinate Bench.
Learned senior counsel appearing for the petitioner submits the petitioner could not be represented on the relevant date due to circumstances beyond the control of the petitioner and as such, the matter may be restored. Moreover, the restoration application was filed within the statutory limitation period.
Learned counsel for the opposite parties, on the other hand, submits that in the event the interim orders, which were vacated by the order sought to be recalled, were revived, the same would amount to substantial injustice in view of the initial order having been passed on condition of payment of a particular sum as long as back in the year 2011. As such, it is submitted, some additional occupational charges ought to be imposed on the petitioner as a condition for re-imposition of stay, if at all.
It is further submitted on behalf of the opposite parties that the present application contains certain statements which are factually incorrect and as such, the application ought to be dismissed on that score alone.
Learned senior counsel appearing for the petitioner cites a judgment reported at (2005) 1 CHN 12 (Jawar Prasad Shaw and Others Vs. Jharna Ghosh and Others) for the proposition that for restoration of a suit within the purview of Order IX Rule 4 of the Code of Civil Procedure, there is no necessity of giving notice of hearing of such application upon the defendant but once such application is allowed, the defendant is entitled to get a notice of restoration of suit and the date of fixation of further hearing.
Learned counsel for the opposite parties, on the other hand, cites a judgment reported at (2018) 16 SCC 299 (Asian Resurfacing of Road Agency Private Limited and another Vs. Central Bureau of Investigation) for the proposition that in all pending cases, where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from the date of the said judgment of the Supreme Court, that is, from March 28, 2018, unless in an exceptional case, by a speaking order, such stay is extended. It was further held that in cases where stay is granted in future, the same would end on the expiry of six months from the date of such order, unless similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized. The trial court, where an order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of the period of stay, the proceeding can commence unless an order of extension of stay is produced.
As far as the judgment cited on behalf of the petitioner is concerned, the same is not applicable to the present case, since the same was rendered in the context of a civil suit, where Order IX Rule 4 of the Code of Civil Procedure was strictly applicable. Article 227 of the Constitution, being a constitutional remedy, is not in the strict sense of the term, governed by a statute which derives its force from the Constitution, in the present case the Code of Civil Procedure. Moreover, Order IX Rule 4, although provides that there is no necessity of giving a notice of hearing to the defendant, does not preclude the defendant from appearing and contesting the application even if no notice is served on the defendant. As such, there is no bar for this Court, in connection with hearing an interlocutory prayer in respect of an application under Article 227 of the Constitution, to hear the opposite parties as well.
Taking into consideration next, the judgment cited on behalf of the opposite parties, this is not a case where the court, strictly speaking, is considering an extension of the previous order of stay granted by a co-ordinate Bench.
The ratio laid down in the judgment reported at (2018) 16 SCC 299 does not preclude grant or re-imposition of a fresh stay, in the event such stay is granted only for a period of six months.
This Court is not sitting in judgment over the prima facie finding of the previous co-ordinate Bench, which entertained the revisional application and granted stay, being prima facie satisfied with the case of the petitioner. In the absence of any change of circumstances, the strength of the prima facie case for obtaining an order of stay subsists.
However, in view of the consequence which the petitioner will suffer in the event such stay is not re-imposed, being that the present revisional application will virtually become infructuous and the petitioner will be evicted from the property-in-dispute without being heard on the merits of the revisional application, despite the same having been entertained previously, such consequence overshadows the inconvenience which might be caused to the opposite parties by such grant of stay. Hence, in consonance with the proposition laid down in (2018) 16 SCC 299, the present case is of such an exceptional nature that continuing the stay and/or re-imposition of the same is more important than having the trial finalized.
As such, the order dated September 3, 2019 is recalled.
C.O. 2222 of 2011 is restored to its original file and number.
However, in view of the urgency involved on the part of the opposite parties as well, since the matter relates allegedly to public premises, the revisional application is fixed on November 4, 2019, to be enlisted under the heading "Upgraded Matters".
The interim order previously granted is re-imposed as of today and will continue till November 15, 2019 or until further orders, whichever is earlier.
CAN 8962 of 2019 is accordingly allowed, without any order as to costs.
Urgent certified website copies of this order, if applied for, be given to the parties upon compliance of all requisite formalities.