Calcutta High Court (Appellete Side)
Ultra Tech Cement Ltd. And Another vs Union Of India And Others on 25 August, 2023
D/L. 32.
August 25, 2023.
MNS.
WPA No. 1863 of 2008
+
CAN 1 of 2023
Ultra Tech Cement Ltd. and another
Vs.
Union of India and others
Mr. Shounak Mitra,
Ms. Shivangi Thard
... for the petitioners.
Mr. Sanajit Kumar Ghosh
...for the respondents.
Re: CAN 1 of 2023 (recalling).
Learned counsel for the petitioners
presses the application for restoration and
submits that there was sufficient reason for the
absence of the petitioners on the relevant date.
Learned counsel for the respondent
authorities opposes the application for restoration
and places reliance on a purported
communication dated June 26, 2023, which was
issued subsequent to the dismissal of the writ
petition for default, whereby the respondent
authorities requested the petitioners to arrange to
pay the amount, which is challenged in the writ
petition, along with interest payable thereon.
Learned counsel for the respondent
authorities places reliance on the judgment of
State of Uttar Pradesh Vs. Shri Bramh Datt
Sharma and another reported at AIR 1987
Supreme Court 943.
It is contended on the basis of the said
judgment that in view of the subsequent cause of
action having arisen by issuance of a demand by
the Eastern Railways for the amount-in-question
subsequent to the dismissal for default, the stale
cause of action cannot now be revived.
In so far as the Brahm Datta (Supra)
judgment is concerned, the same pertains to a
different proposition altogether, than that involved
in the present case. There, the order of the High
Court was held not to be sustainable since the
writ petition challenging the order of dismissal
had been finally disposed of on August 10, 1984,
after which nothing remained pending before the
High Court. No miscellaneous application, it was
observed, could be filed in the writ petition to
revive proceedings in respect of subsequent
events after two years. It was held that if the
respondent was aggrieved by the notice dated
January 29, 1986, he could have filed a separate
petition under Article 226 of the Constitution of
India, challenging the validity of the notice as it
provided a separate cause of action.
Nothing akin to the said case has
happened in the present case.
The writ petition here was dismissed for
default on May 4, 2023. By a subsequent letter,
the Eastern Railway authorities merely reiterated
its demand on the basis of the decision, which
has been impugned in the writ petition, claiming
to have added the interest component along with
the same.
In fact, the communication handed over
today indicates that the same merely contains a
request, in pursuance of the "decision" of this
Court dismissing the writ petition for default, to
pay the punitive charge to the tune of
Rs.63,52,154/-.
The said communication does not furnish
any subsequent cause of action at all, but is a
mere reiteration of the cause of action impugned
in the writ petition, taking advantage of the
dismissal for default. Since the dismissal itself is
in question now, the restoration application
cannot be said to be barred merely due to
issuance of such letter.
That apart, a perusal of the application
shows that the petitioners have made out
sufficient reasons for being absent on the
relevant date.
Accordingly, CAN 1 of 2023 is allowed,
thereby recalling the order dated May 4, 2023
passed in WPA No. 1863 of 2008 and restoring
the said writ petition to its original file and
number.
There will be no order as to costs.
Re: WPA No. 1863 of 2008
Let the matter be listed in the monthly
combined list of cases for the month of October,
2023.
The interim order, if any, stands revived as
on today.
(Sabyasachi Bhattacharyya, J.)
