Rekha Singha Roy vs State of West Bengal

R. Bhattacharyya, J.—This Appeal is directed against the order of Hon�ble Mr. Justice Shyamal Kumar Sen in the Civil Order No. ....(W) of 1993 dated April 28, 1993, directing the Superintendent of Police, Nadia, and the Officer-in-charge, Kalyani-I will render all possible help and, if necessary, post Police picket in and around the residence of the Petitioner Smt. Nihar Kana Singha Ray and will also provide Police Pilot rescue team from Kalyani to Dum-Dum Airport. This became all sore in the litigation.

The propriety of the order has been challenged by the Learned Counsel for the Appellant on the count that the application is not maintainable inasmuch as the prayer for relief has offended Rule 27 of the writ rules framed by the Calcutta High Court in exercise of the power provided under Article 226 of the Constitution. The second one in the row to whittle away the claim of the Petitioner is that in securing relief, the Petitioner did not make any clean breast of the fact and surreptitiously managed to obtain an order from the Court which is impermissible.

To consider the viability of the prayers, we advert to Rule 27 of the Writ Rules framed by the Calcutta High Court which is precise that the securing an interim order, it is the obligation of the Petitioner to serve a copy of the petition along with all Annexures upon the Respondents to be bound by or affected by such interim order and without giving such party a reasonable opportunity to contest the same. This sacred rule has not been obeyed, followed or respected by the Petitioner in preferring the writ application while soliciting interim order from the Court nor any recital was made in the petition that the service of copy may be dispensed with in view of the exigency of the circumstances. Thus, the serious causality committed by the Petitioner is beyond any repair, in particular, when interim order has been sought for to the exclusion of service of a copy on the adversary.

We should not be oblivious of the fact that natural justice is not an ex parte procedure which is based upon justice, equity and good conscience. The jurisdiction being an equitable jurisdiction, the compliance with the rule is a sine qua non and, for which, we do not agree with the order passed by the learned trial Court.

The next pitfall in the application is that there is a complete black out of the material facts in the petition which the Petitioner preferred before the learned trial Judge. We have been intimated that an application u/s 97 of the Code of Criminal Procedure was filed by the Appellant before the learned Court of Magistrate for a direction upon the Respondent Nos. 8 and 9 to produce the child against which a revision arose before the learned Session Judge. This is a very important. fact which should not have escaped from it while preferring an application before the trial Judge. Rather this fact has been deliberately suppressed to snatch an order from the Court contrary not only to the principle of law but also goes against the canon of natural justice. Therefore, we cannot accept the order as water-tight.

That apart it is discernible that the learned trial Judge disposed of the writ application by passing the order with a direction contained in the order dated April 20, 1993. This order is very much alive and prejudicial to the right of the Appellant as the Appellant was prevented from prosecuting the cause in the trial Court in view of the order passed by the learned trial Judge in the following manner:

This writ petition is disposed of by passing the following order.

This is suggestion of the fact that the writ application was finally disposed of ex parte offending Rule 27 of the Writ Rules. The order complained of is a very serious order and the issuance of which is certainly to affect the aggrieved as there was affectation of her right since the matter was finally disposed of without giving her a reasonable opportunity to contest the same. Moreover, the order complained of verges on futility if considered with the proceedings taken out by the parties when an application u/s 97 of the Code of Criminal Procedure was filed. Therefore, in all fitness of things, we cannot help holding that the order dated of April 20, 1993, is not only devoid of merit but is also devoid of law, for which, the order is set aside and the appeal allowed.

In the result, the appeal succeeds, but considering the circumstances, we award no cost.

Nure Alam Chowdhury, J.

I agree.