Nilima Das vs Bijay Kumar Manish Kumar

Ashis Kumar Chakraborty, J.—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-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.

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 47, 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. v. 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 v. 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 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.