Smt. Satarupa Mukherjee vs Sushanta Kumar Mukhopadhyay And ...
2023 Latest Caselaw 1532 Cal

March 1, 2023
Sl. No.9
Court No.1
s.biswas
                                     MAT 180 of 2023
                                          With
                                      CAN 1 of 2023
                            Smt. Satarupa Mukherjee
                                       vs.
                    Sushanta Kumar Mukhopadhyay and others

                 Mr. Saptangsu Basu, Senior Advocate
                 Mr. Ayan Banerjee,
                 Ms. Debasree Dhamali,
                 Ms. Debjani Sengupta, Advocates
                                                    ... for the appellant
                 Mr. Suddhadev Adak, Advocate
                                                        ... for the State
                 Mr. Ashok Banerjee, Sr. Adv.,
                 Mr. Debjit Mukherje,
                 Ms. Manideepa (Paul) Roy,
                 Ms. Urbashi Banerjee, Advocates
                                  For the respondent No.1/OP No.1

Ms. Sutapa Dutta, Advocate ... for the respondent No.6

By this intra-Court appeal the respondent No.5

in the writ petition has challenged the order of the

learned Single Judge dated 18.01.2023 whereby the

respondent No.5 daghter-in-law (appellant herein)

has been required to explain on the adjourned date

as to why they should not be escorted out the house

along with the daughters who have attained

majority.

Submission of learned counsel for the

appellants is that in the judgment of this Court in

the matter of Swati Das vs. The State of West

Bengal and others dated 12th July, 2022 passed in

MAT 683 of 2022, the writ petition itself is not

maintainable as it involves in adjudication of civil

dispute between the parties.

MAT 180 of 2023

He has pointed out that the judgment in the

case of Swati Das (Supra) has been affirmed by the

Hon'ble Supreme Court by order dated 28.11.2022

passed in SLP(Civil) No.20231-20233/2022. It is

also submitted that learned Single Judge has

committed error in holding that the consent divorce

decree between the appellant and her husband being

the added respondent is fraudulent and deemed to

be a nullity to the extent mentioned in the order

whereas the said decree is not under challenge.

Learned counsel for the respondent/writ

petitioner has questioned the applicability of the

judgment of this Court in the case of Swati Das

(Supra) on the facts of the present case and has

referred to certain judgments and has submitted

that judgment should be applied keeping in view of

the facts of the case.

He has also relied upon the judgment of the

Hon'ble Supreme Court in the matter State of

Madhya Pradesh vs. Babu Lal and others reported

in (1977) 2 SCC 435 in support of his submission

that in writ jurisdiction a decree can be declared to

be a nullity, but in that case the decree itself was

questioned in the writ petition by the State on the

ground that it was passed in violation of the

statutory provision being Section 165(6) of the

MAT 180 of 2023

Madhya Pradesh Land Revenue Code, 1959. Hence

that judgment stands on a different footing.

Thus, in the circumstances of the case we are of

the opinion that the issue of maintainability of the

petition needs to be decided by the learned Single

Judge at the first instance before proceeding further

in the matter.

Hence, the order under challenge is stayed

permitting the learned counsel for the parties to

avance arguments on the issue of maintainability of

the petition before the learned Single Judge.

The application for stay being CAN 1 of 2023 is

accordingly disposed of.

List on 26th April, 2023.

(Prakash Shrivastava, C.J.)

(Rajarshi Bharadwaj, J.)