Goutam Basu vs Amitava Chakraorty & Ors.

The present revisional application has been filed at the instance of the first defendant in a suit for eviction of licensee. The facts of the case, in a

nutshell, are as follows:

The proforma opposite party nos. 2 and 3 are the parents of the present petitioner. The present opposite party no. 1 filed an eviction suit against the

present petitioner on the strength of a purchase deed by which the opposite party nos. 2 and 3 sold the suit property to the opposite party no. 1. In

such suit, the petitioner filed written statement along with a counter-claim. In such counter-claim, the petitioner challenged the sale deed said to have

been executed by the proforma opposite party nos. 2 and 3 in favour of the opposite party no. 1, on the ground of fraud.

By the impugned order, the trial court “rejected†such counter-claim inter alia on the premise that the proforma opposite party nos. 2 and 3

themselves, being the vendors, filed written statement and pleaded that they had actually executed the sale deed in question. Being thus aggrieved, the

petitioner preferred an appeal, bearing Miscellaneous Appeal No. 1 of 2016. The Civil Judge (Senior Division) at Serampore, vide order no. 13, dated

April 20, 2016, dismissed the said appeal as not maintainable on the ground that the order impugned therein was not an appellable one.

 Being so compelled, the petitioner preferred a revisional application under Section 115A of the Code of Civil Procedure before the concerned

District Judge. Ultimately, by an order dated August 08, 2017, the Additional District Judge, First Court at Serampore, District-Hooghly, dismissed the

said revisional application on contest, holding that the provisions of Section 115A of the Code were not applicable to the said case. Being aggrieved

against such order of the revisional court, the petitioner has preferred the instant revisional application under Article 227 of the Constitution of India.

It appears from the records and after hearing both sides, that a comedy of errors occurred in the present case. The initial order dated December 03,

2014, whereby the counter-claim of the petitioner was “rejectedâ€, was, in effect, an order of rejection of the counter-claim, which was on the

footing of a plaint and, thus, had to be construed to be one under Order VII Rule 11 of the Code of Civil Procedure. In such view of the matter, appeal

lay from such order. Unfortunately, the petitioner did not challenge the order of the appellate court holding that no appeal lay from the said order.

If strictly construed, the petitioner does not have any remedy now, since the appeal preferred by him against the order dated December 03, 2014 was

dismissed as not maintainable, which was never challenged. On the other hand, the present application under Article 227 of the Constitution of India,

even if deemed to be preferred against the said initial order, is not maintainable since an equally efficacious alternative remedy in the form of an

appeal is provided for against rejection of plant in the Code of Civil Procedure.

However, such an interpretation of the situation would be absurd and lead to violation of the principle of natural justice, Ubi Jus, Ibi Remedium. Hence,

to obviate such absurdity, this Court chooses to consider the legality of order no. 13, dated April 20, 2016, whereby the Civil Judge (Senior Division) at

Serampore dismissed the Miscellaneous Appeal No. 1 of 2016 on the ground of maintainability. Under the provisions of Article 227 of the Constitution

of India, which is a power of judicial review and a superintending power rolled in one, this court has ample jurisdiction to consider the correctness and

legality of any order passed in any proceeding before a subordinate court, particularly if such order has a direct bearing on the order actually

impugned, to provide relief to the parties.

As such, C.O. No. 3394 of 2017 is disposed of on contest, thereby setting aside the order No. 13, dated April 20, 2016 passed by the Civil Judge

(Senior Division) at Serampore, District-Hooghly in Miscellaneous Appeal No. 1 of 2016 and directing the said court to re-hear such miscellaneous

appeal on merits and to come to a logical conclusion upon hearing both sides.

Such exercise ought to be completed as expeditiously as possible, without granting any unnecessary adjournment to either side, positively within three

months from the date of communication of this order to the court below. There will be no order as to costs. Urgent certified website copies of this

order, if applied for, be made available to the parties upon compliance of all requisite formalities.