Union Of India And Ors vs West Bengal Kerosene Agents'
2023 Latest Caselaw 7043 Cal

12.10.2023
Court No. 13
Item No. 19
AP
                                   MAT 937 of 2023
                                         With
                                 IA NO: CAN 1 of 2023
                                         With
                                     CAN 2 of 2023

                               Union of India and Ors.
                                         Vs.
                            West Bengal Kerosene Agents'
                            Welfare Association and Ors.

               Mr. Billwadal Bhattacharyya, D.S.G.I.
               Mr. Avinash Kankani
                                                  ... For the Appellants.

               Mr. Ashok Kumar Banerjee, Senior Advocate
               Mr. Shyamal Sarkar
               Mr. Ramesh Dhara
               Ms. Mousumi Chowdhury
                                              ... For the Respondents.

Re.: CAN 1 of 2023

1. The application being CAN 1 of 2023 has been filed

seeking condonation of delay.

2. Sufficient grounds are indicated to explain the

delay in filing the appeal. Delay in filing of the appeal is

condoned.

3. Accordingly, CAN 1 of 2023 is allowed.

Re.: MAT 937 of 2023

4. The appeal is directed against and order dated 3rd

February, 2023 whereby CAN 2 of 2022 and CAN 5 of

2022 seeking recall of an order dated 21st July, 2022 was

passed in WP No.25064 (W) of 2016 allowed.

5. The writ petition itself was filed by the West Bengal

Kerosene Agents' Welfare Association and Ors. against the

Union. A challenge was made to a proposal of the Central

Government curtailing the supply of kerosene to

consumers through fair price shops in the State of West

Bengal. Initially, there was an interim order passed on

28th October, 2016 staying the said curtailment for a

period of four weeks. The said interim order was extended

until disposal of the writ petition on 24th April, 2017, by

the Single Bench.

6. Admittedly, there were disputes and differences

within the writ petition No.1, Association. An affidavit-in-

opposition has been filed in the writ petition indicating

that the writ petition affirmed singed by a person not

authorized to do so. Subsequently, the issue was resolved

by reason of a settlement between the members of the

committee of the writ petitioner No.1. The writ petition

was allowed to be withdrawn and was dismissed as

withdrawn on 21st July, 2022. Consequently, the Central

Government implemented the curtailment order.

Thereafter, a formal order was passed by the Ministry of

Petroleum implementing the curtailment of the kerosene

supplied to West Bengal from the third quarter of 2022-

2023.

7. In the meantime on 6th September, 2022 CAN 2 of

2022 came to be filed by one Sk. Kamran Ali claiming to

be the Vice President of the writ petitioner No.1. Recall of

the order of dismissal and withdrawal of the writ petition

dated 21st July, 2022 was applied for in CAN 2 of 2022.

8. A further application being CAN 3 of 2022 was

filed by the said Sk. Kamran Ali, seeking formal stay of

the order dated 13th September, 2022 issued by the

Ministry of Petroleum.

9. On 29th September, 2022, CAN 2 of 2022 and CAN

3 of 2022 were dismissed by the Single Bench. On an

appeal being filed by the said Sk. Kamran Ali, a Division

Bench of this Court in MAT 1726 of 2022 set aside the

order dated 29th September, 2022 and remanded the

matter for consideration afresh by the Single Bench.

10. Upon consideration a fresh of CAN 2 of 2022 and

CAN 5 of 2022, the same were allowed by the order of the

Single Judge dated 3rd February, 2023. The original order

dated 21st July, 2022 dismissing the writ petition as

withdrawn, was recalled.

11. Without waiting for an appropriate clarification

from the High Court, the Ministry of Petroleum by an

order dated 31st March, 2023 felt compelled to and

restored the original supply of kerosene to 1,76,004 KL

(which stood reduced to 88,332 KL and later to 22,356

KL). The appellants/Union have challenged the order

dated 3rd February, 2023.

12. Mr. Avinash Kankani, learned counsel for the

Union of India, has placed reliance on Vareed Jacob Vs.

Sosamma Geevarghese and Ors. reported in (2004) 6

SCC 378 Para 16 to 21. Reliance is also placed on the

view of the Single Bench of this Court taken in respect of

the said Vareed Jacob (supra) decision in the case of

Biren Nath Vs. Sri Joydeb Nath & Ors. reported in

(2015) SCC Online Cal 2521.

13. It is argued by Mr. Kankani that recall of an order

of dismissal should not by itself restore ancillary interim

orders that were already pending and passed in the writ

petition prior to its dismissal.

14. It is next argued by Mr. Kankani that the disputes

and differences between the committee members of the

writ petitioner No.1 should have negated the writ petition

itself. The question of any interim order much less revival

of an interim order, post dismissal of the writ petition on

21st July, 2022, in the peculiar facts and circumstances

should not have arisen.

15. This Court has heard Mr. Kankani, learned

counsel appearing for the appellants and Mr. Ashok

Kumar Banerjee, Senior Advocate appearing for the

respondents. A plain reading of paragraph 16 to 21 of the

Vareed Jacob (supra) would indicate that, both in cases

where a suit or a proceeding is dismissed simplicitor, as

also in cases where the order of dismissal indicates that

the interim orders would stand vacated, recall of such

orders of dismissal, would automatically restore the

ancillary interim orders that were subsisting prior to

dismissal.

16. The exception carved out by the learned Single

Bench in the decision of Biren Nath (supra) would not be

applicable in the facts of the instant case.

17. It would useful to set out Paragraphs 16 to 21 of

the Vareed Jacob (supra) decision.

"16. The facts of the present case and the controversy in this case are covered by the provisions of Order 39 and not Order 38.

17. In the case of Shivaraya v. Sharnappa [AIR 1968 Mys 283 : (1967) 1 Mys LJ 414] it has been held that the question whether the restoration of the suit revives ancillary orders passed before the dismissal of the suit depends upon the terms in which the order of dismissal is passed and the terms in which the suit is restored. If the court dismisses the suit for default, without any reference to the ancillary orders passed earlier, then the interim orders shall revive as and when the suit is restored. However, if the court dismisses the suit specifically vacating the ancillary orders, then restoration will not revive such ancillary orders. This was a case under Order

39.

18. In the case of Saranatha Ayyangar v. Muthiah Moopanar [AIR 1934 Mad 49 : ILR 57 Mad 308] it has been held that on restoration of the suit dismissed for default all interlocutory matters shall stand restored, unless the order of restoration says to the contrary. That as a matter of general rule on restoration of the suit dismissed for default, all interlocutory orders shall stand revived unless during the interregnum between the dismissal of the suit and restoration, there is any alienation in favour of a third party.

19. A similar view has been taken by the Patna High Court in the case of Bankim Chandra v. Chandi Prasad [AIR 1956 Pat 271 : 1956 BLJR 454] in which it has been held that orders of stay pending disposal of the suit are ancillary orders and they are all meant to supplement the ultimate decision arrived at in the main suit and, therefore, when the suit, dismissed for default, is restored by the order of the court all ancillary orders passed in the suit shall revive, unless there is any other factor on record or in the order of dismissal to show to the contrary. This was also a matter under Order 39.

20. In the case of Nandipati Rami Reddi v. Nandipati Padma Reddy [AIR 1978 AP 30 : (1977) 2 APLJ 64] it has been held by the Division Bench of the Andhra Pradesh High Court that when the suit is restored, all interlocutory orders and their operation during the period between dismissal of the suit for default and restoration shall stand revived. That once the dismissal is set aside, the plaintiff

must be restored to the position in which he was situated, when the court dismissed the suit for default. Therefore, it follows that interlocutory orders which have been passed before the dismissal would stand revived along with the suit when the dismissal is set aside and the suit is restored unless the court expressly or by implication excludes the operation of interlocutory orders passed during the period between dismissal of the suit and the restoration.

21. In the case of Nancy John Lyndon v. Prabhati Lal Chowdhury [(1987) 4 SCC 78] it has been held that in view of Order 21 Rule 57 CPC it is clear that with the dismissal of the title execution suit for default, the attachment levied earlier ceased. However, it has been further held that when the dismissal was set aside and the suit was restored, the effect of restoring the suit was to restore the position prevalent till the dismissal of the suit or before dismissal of the title execution suit. We repeat that this judgment was under Order 21 Rule 57 whose scheme is similar to Order 38 Rule 11 and Rule 11-A CPC and therefore, we cannot put all interlocutory orders on the same basis."

18. In the backdrop of the above, observations of the

Supreme Court and the discussions on the facts indicated

hereinabove, the only conclusion that one can reach in

the instant case is that the interim order dated 28th

October, 2016 confirmed until disposal of the writ petition

on 24th April, 2017 stood revived upon the recall of the

order of dismissal of the writ petition itself.

19. This Court, however, takes note of the serious

disputes and differences between the committee members

of the writ petitioner No.1. The locus of the petitioner

appear to be continuously flickering.

20. The affidavits filed in the Court below would also

lend credence to the argument of the Union as regards

doubtful locus standi.

21. Be that as it may, what this Court is surprise that

the Union has not even chosen to challenge the interim

order dated 28th October, 2016 and its confirmation on

24th April, 2017 till date. The Ministry of Petroleum has

itself deferred the application of the curtailment order

until 31st December, 2023.

22. However, since the Union is seriously aggrieved by

the interim order in the writ petition, this Court in the

interest of justice is inclined to limit and modify the

operation of the interim order dated 28th October, 2016 as

confirmed on 24th April, 2017 only until 31st December,

2023.

23. The Single Bench is requested by this Court to fix

the writ petition itself at the earliest available date and

dispose of the same preferably before the 31st December,

2023.

24. For the aforesaid purpose, the parties shall

mention the writ petition on 16th October, 2023 to pray

before the Single Bench for fixing of date for hearing. No

further notice need be given to any parities for this

purpose.

25. With the aforesaid observations, the appeal shall

stand disposed of.

26. In view of the above, connected pending

applications, if any, shall also stand disposed of.

27. There shall be no order as to costs.

28. All parties shall act on the server copy of this order

duly downloaded from the official website of this Court.

(Rajasekhar Mantha, J.)

(Supratim Bhattacharya, J.)