Calcutta High Court (Appellete Side)
M/S. Industrial Carbon And Others vs Smt. Ruma Mukherjee And Another on 6 October, 2023
204 06.10. SAT 262 of 2022
2023 IA No. CAN 2 of 2023
Ct. No. 04 IA No. CAN 3 of 2023
ab
M/s. Industrial Carbon and others
Vs.
Smt. Ruma Mukherjee and another.
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Mr. Probal Kumar Mukherjee,
Ms. Shebatee Datta.
... for the appellants.
Mr. Biswaroop Bhattacharyya,
Mr. Arup Nath Bhattacharyya,
Ms. Sayani Das,
Ms. Sreetama Biswas.
... for the respondents.
Re: CAN 3 of 2023
Since an application for recalling an order dated 3rd
July 2023 is taken out wherein it was recorded that the
appeal has been admitted on 24th April 2023 and,
therefore, was wrongly listed before the Division Bench.
It is stated in paragraph 11 of the instant
application that the Advocate-on-Record of the appellants
upon cross-checking noticed that the order passed by
this Bench recording that the appeal has already been
admitted on 24th April 2023 has been made
inadvertently.
We had an occasion to peruse the order dated 24th
April 2023 and found that though the Court was satisfied
that the case involved substantial question of law, yet no
formal order for admission was recorded, but several
directions were passed upon the parties, which impedes
the execution case.
We are reminded of the judgment of the Apex Court
rendered in case of Raghavendra Swamy Mutt vs.
Uttaradi Mutt reported in (2016) 11 SCC 235, where
the Apex Court deprecated the practice of passing a
direction in the second appeal without making a formal
order of admission or in other words, without formulating
the question of law in the following:
"23. The submission of the learned Senior
Counsel for the appellant is that Order 41 Rule 5
confers jurisdiction on the High Court while
dealing with an appeal under Section 100 CPC to
pass an ex parte order and such an order can be
passed deferring formulation of question of law in
grave situations. Be it stated, for passing an ex
parte order the Court has to keep in mind the
postulates provided under sub-rule (3) of Rule 5
of Order 41. It has to be made clear that the
Court for the purpose of passing an ex parte
order is obligated to keep in view the language
employed under Section 100 CPC. It is because
formulation of substantial question of law
enables the High Court to entertain an appeal
and thereafter proceed to pass an order and at
that juncture, needless to say, the Court has the
jurisdiction to pass an interim order subject to
the language employed in Order 41 Rule 5(3).
24. It is clear as day that the High Court
cannot admit a second appeal without examining
whether it raises any substantial question of law
for admission and thereafter, it is obliged to
formulate the substantial question of law. Solely
because the Court has the jurisdiction to pass an
ex parte order, it does not empower it not to
formulate the substantial questioin of law for the
purpose of admission, defer the date of admission
and pass an order of stay or grant an interim
relief. That is not the scheme of CPC after its
amendment in 1976 and that is not the tenor of
precedents of this Court and it has been clearly
so stated in Ram Phal v. Banarasi, (2003) 11 SCC
762. Therefore, the High Court has rectified its
of 2015 and it is the correct approach adopted by
the High Court. Thus, the impugned order is
absolutely impregnable."
In view of the law enunciated by the Apex Court in
the above noted judgment, we do not concur with the
order passed on 24th April 2023 being devoid of
jurisdiction vested upon the Court unless the appeal is
admitted.
We, thus, find that the order dated 3rd July 2023
contained the misconstruction of the order dated 24th
April 2023 as the appeal was not admitted on the said
date.
Accordingly, the order dated 3rd July 2023 is
recalled. CAN 3 of 2023 is disposed of.
The matter is taken up for admission.
We find that the earlier Division Bench was of the
view that it is a case of partial eviction, which appears to
have raised a substantial question of law for the reason
that it is obligatory and imperative on the part of the
Court while passing a decree for eviction to consider as to
whether the requirement can be satisfied by partially
evicting the defendant/tenant from the tenanted
premises. The aforesaid power is vested upon the Court
while passing a decree for eviction in respect of the entire
tenanted premises and having not done so, raises a
substantial question of law.
The appeal is admitted on the following substantial
question of law:
(1) Whether the requirement pleaded by
the plaintiffs can be satisfied by
partially evicting the tenant from the
tenanted premises?
Re: CAN 2 of 2023.
List the application on 13th October 2023.
(Harish Tandon, J.)
(Prasenjit Biswas, J.)
