Gagandeep Pratishthan Pvt. Ltd. & Ors. Vs. M/s. Mechano & Anr.
EmailAppeal: Civil Appeal Nos. 7912-7913 of 2001
(Arising out of SLP (C) Nos. 17464-65 of 2000)
(From the Judgment and Order dated 1.9.2000 and 29.9.2000 of the Calcutta High Court in A.P.O.T. No. 26/98)
(Arising out of SLP (C) Nos. 17464-65 of 2000)
(From the Judgment and Order dated 1.9.2000 and 29.9.2000 of the Calcutta High Court in A.P.O.T. No. 26/98)
Petitioner: Gagandeep Pratishthan Pvt. Ltd. & Ors.
Respondent: M/s. Mechano & Anr.
Apeal: Civil Appeal Nos. 7912-7913 of 2001
(Arising out of SLP (C) Nos. 17464-65 of 2000)
(From the Judgment and Order dated 1.9.2000 and 29.9.2000 of the Calcutta High Court in A.P.O.T. No. 26/98)
(Arising out of SLP (C) Nos. 17464-65 of 2000)
(From the Judgment and Order dated 1.9.2000 and 29.9.2000 of the Calcutta High Court in A.P.O.T. No. 26/98)
Judges: N. SANTOSH HEGDE & DORAISWAMY RAJU, JJ.
Date of Judgment: Nov 20, 2001
Appearances:
Mr. V.R. Reddy and Dr. Abhishek Manu Singhvi, Senior Advocates, Mr. G.S. Chatterjee and Mr. Raja Chatterjee, Advocates with them for the Appellants.
Mr. Haradhan Banerjee and Mr. V.D. Khanna, Advocates for the Respondents.
Head Note:
PRACTICE AND PROCEDURE
Civil suit relating to property disputes – Appeal – High Court making interim order in view of urgency of the matter and the impending vacation of the court without considering the prelimi-nary objections as to the maintainability of the appeal and also the question of condonation of the delay – Validity. Held, it is not just and fair to interfere at that point of time though High Court could have avoided passing such orders in proceedings where the maintainability itself was being seriously questioned. High Court directed to consider the question of condonation of delay and the objection with regard to maintain-ability of the appeal first before proceeding with the matter or before making any further interim order.
Held:
In view of the peculiar facts of this case without going into the merits of the contentions raised by the counsel for the appell-ants, we think it is just and fair that we should not at this point of time interfere with the impugned order though the High Court could have avoided passing such orders in proceedings where the maintainability itself was being seriously questioned, be that as it may, we at this stage think it appropriate that the High Court should consider the question of condonation of delay and the objection of the appellants herein in regard to maintain-ability of the appeal first, before proceeding with the appeal any further. (Para 6)
JUDGEMENT:
ORDER
1. Leave granted.
2. By the impugned orders, the High Court appointed a receiver to ascertain the availability of 1040 sq.ft. of floor space in the building in question. By the said order, it also restrained the appellants herein from changing the status quo existing on the date of the impugned order in regard to the said area. When the SLPs from which these appeals arise, came up for preliminary hearing before this Court on 6.11.2000, this Court was pleased to issue notice and pass an order, staying all further proceedings before the High Court until further orders.
3. When the matters were taken up for hearing today, Mr. V.R.Reddy, learned senior counsel appearing for the appellants, questioned the jurisdiction of the High Court to make the im-pugned orders at the threshhold without deciding the question of delay in filing the appeal as well as the objections as to the maintainability of the appeal which according to him was raised by the appellants herein. According to the learned counsel, since the question of maintainability goes to the root of the jurisdic-tion of the court to entertain the appeal as well as to pass the impugned orders, the same are liable to be set aside.
4. On behalf of the respondents, it is contended by Mr. Haradhan Banerjee, learned counsel that the order in question was justly passed by the High Court, duly taking into consideration the prevailing circumstances and the receiver appointed by the court has already submitted his report.
5. We notice that the impugned order was passed on 29.9.2000 and at the time of passing of the order, the High Court had taken note of the fact that it still had not decided the application for condonation of delay, yet it passed the order because of the urgency involved in the matter and because of the fact that it was not in a position to decide the appeal finally. As a matter of fact we notice from the order, that the High Court had decided to dispose of the appeal finally which it could not do so because of the impending vacation of the court at that time. Hence, it thought it fit to make the impugned interim order without consid-ering the preliminary questions.
6. In view of the peculiar facts of this case without going into the merits of the contentions raised by the counsel for the appellants, we think it is just and fair that we should not at this point of time interfere with the impugned order though the High Court could have avoided passing such orders in proceedings where the maintainability itself was being seriously questioned, be that as it may, we at this stage think it appropriate that the High Court should consider the question of condonation of delay and the objection of the appellants herein in regard to maintain-ability of the appeal first, before proceeding with the appeal any further. We also think it to be just and proper that any further interim orders if necessary in the appeal before the High Court in regard to the suit property should be made only after deciding the question of delay and maintainability of the appeal and the order already made should be confined to the appointment of a receiver and filing of his report only, meaning thereby that the impugned order be confined to the appointment of receiver for the purpose of filing his report as directed by the court and nothing beyond that, at this stage.
7. With these observations, without expressing any opinion on the merits of the objections raised by the appellants, we dispose of these appeals. No order as to costs.
1. Leave granted.
2. By the impugned orders, the High Court appointed a receiver to ascertain the availability of 1040 sq.ft. of floor space in the building in question. By the said order, it also restrained the appellants herein from changing the status quo existing on the date of the impugned order in regard to the said area. When the SLPs from which these appeals arise, came up for preliminary hearing before this Court on 6.11.2000, this Court was pleased to issue notice and pass an order, staying all further proceedings before the High Court until further orders.
3. When the matters were taken up for hearing today, Mr. V.R.Reddy, learned senior counsel appearing for the appellants, questioned the jurisdiction of the High Court to make the im-pugned orders at the threshhold without deciding the question of delay in filing the appeal as well as the objections as to the maintainability of the appeal which according to him was raised by the appellants herein. According to the learned counsel, since the question of maintainability goes to the root of the jurisdic-tion of the court to entertain the appeal as well as to pass the impugned orders, the same are liable to be set aside.
4. On behalf of the respondents, it is contended by Mr. Haradhan Banerjee, learned counsel that the order in question was justly passed by the High Court, duly taking into consideration the prevailing circumstances and the receiver appointed by the court has already submitted his report.
5. We notice that the impugned order was passed on 29.9.2000 and at the time of passing of the order, the High Court had taken note of the fact that it still had not decided the application for condonation of delay, yet it passed the order because of the urgency involved in the matter and because of the fact that it was not in a position to decide the appeal finally. As a matter of fact we notice from the order, that the High Court had decided to dispose of the appeal finally which it could not do so because of the impending vacation of the court at that time. Hence, it thought it fit to make the impugned interim order without consid-ering the preliminary questions.
6. In view of the peculiar facts of this case without going into the merits of the contentions raised by the counsel for the appellants, we think it is just and fair that we should not at this point of time interfere with the impugned order though the High Court could have avoided passing such orders in proceedings where the maintainability itself was being seriously questioned, be that as it may, we at this stage think it appropriate that the High Court should consider the question of condonation of delay and the objection of the appellants herein in regard to maintain-ability of the appeal first, before proceeding with the appeal any further. We also think it to be just and proper that any further interim orders if necessary in the appeal before the High Court in regard to the suit property should be made only after deciding the question of delay and maintainability of the appeal and the order already made should be confined to the appointment of a receiver and filing of his report only, meaning thereby that the impugned order be confined to the appointment of receiver for the purpose of filing his report as directed by the court and nothing beyond that, at this stage.
7. With these observations, without expressing any opinion on the merits of the objections raised by the appellants, we dispose of these appeals. No order as to costs.
