Calcutta High Court (Appellete Side)
Shri Praveen Jain And Anr vs Tulsan Properties Private Limited And … on 3 July, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
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IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Shampa Sarkar
And
The Hon'ble Justice Hiranmay Bhattacharyya
FMAT 269 of 2024
With
IA NO: CAN 1 of 2024
CAN 2 of 2024, CAN 3 of 2024
Shri Praveen Jain And Anr.
vs.
Tulsan Properties Private Limited And Anr.
For the Appellants : Mr. Harsh Tiwari, Adv.
Mr. Bhupendra Gupta, Adv.
For the Respondent : Mr. Meghajit Mukherjee, Adv.
Ms. Brinda Sen Gupta, Adv.
Ms. Srijeeta Gupta, Adv.
Ms. Sonia Da, Adv.
Hearing Concluded on : May 22, 2025
Judgement on : July 03, 2025
DEBANGSU BASAK, J.:-
1. By an order dated November 20, 2024 passed in FMAT
269 of 2024, a Division Bench made the present reference on
the question of law framed by it which is as follows:-
“Whether an order passed by a Bench of this Court
not being conferred with determination by virtue of
the roster fixed by the Hon’ble the Chief Justice is
subha
karmakar vitiated by inherent lack of jurisdiction so as to
Digitally signed by
subha karmakar
Date: 2025.07.03
13:44:40 +05’30’
2render the order so passed a nullity in the eye of law
or void ab initio.”
2. The Hon’ble The Chief Justice has, in terms of such
order dated November 20, 2024 passed in FMAT 269 of 2024,
constituted this Bench to consider such questions of law.
3. At the hearing of the reference, learned Advocate for
the appearing parties have submitted that the question
framed in the reference is covered by the ratio of 2025 SCC
Online SC 582 (Garden Reach Shipbuilders and Engineers
Limited. vs. Grse Limited Workmens Union and Others).
4. The order of reference has been passed in FMAT 269 of
2024. Appellants in FMAT 296 of 2024 have claimed that they
are the owners of a particular immoveable property by virtue
of a registered deed of conveyance dated June 23, 2023. The
appellants have claimed themselves to be members of the
tenant’s association of the building in which the immovable
property is situated. The appellants being concerned with the
maintenance of the building, had participated in a meeting of
the association when, the appellants came to learn about
certain facts. Appellants had learnt about Title Suit no. 2602
of 2023 in which an interim order was passed. Appellant had
filed a Civil Suit being Title Suit no. 1037 of 2024. In such
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Civil Suit, appellants had filed an application under Order
XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908.
Learned Judge had declined to grant ad interim relief to the
appellants. Appellants had thereafter preferred an appeal from
the refusal to grant ad interim relief being FMAT 269 of 2024
in which the order of reference has been made.
5. By the order dated November 4, 2024, passed in FMAT
269 of 2024 the Division Bench, has admitted the appeal
under Order XLI Rule 11 of Code of Civil Procedure, 1908 and
directed that the same to be heard on the question of law
framed.
6. The private respondent in such appeal had applied for
vacating of the order dated November 4, 2024 on the ground
that when such order admitting the appeal was passed, the
Division Bench did not have the requisite determination to
consider an application under Order XLI Rule 11 of the Code
of Civil Procedure, 1908 to admit the appeal.
7. The Division Bench making the reference, has
considered the issue as to whether the earlier order passed by
the Bench on November 4, 2024 recording that the appeal be
deemed to be admitted under Order XLI Rule 11 of the Code of
Civil Procedure, 1908 and should be heard on the question
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framed therein, is a nullity and ought to be recalled on such
ground.
8. While deciding such issue the Division Bench has
noted various authorities cited at the Bar. After discussing the
authorities on such issue, the Division Bench making the
reference has observed that on November 4, 2024, when the
appeal was taken up for hearing it was not brought to the
notice of the Bench and also due to bona fide inadvertence,
the Bench overlooked the fact that it did not have
determination to take up Order XLI Rule 11 matters after the
year 2020. After noticing the same, the Division Bench has
held that, since the lack of jurisdiction was not inherent or
implicit, the order dated November 4, 2024 cannot be labelled
as void ab initio or a nullity in the eye of law due to lack of
jurisdiction but at best irregular. It has noticed the distinction
between jurisdiction and determination. It has noticed the
contrary view of another Division Bench rendered in
Manu/WB/0961/2021 (The Kolkata Municipal Corporation
and Ors. vs. AI-Sumama Agro Foods Private. Limited. and
Others.)
9. Having refused to recall its earlier order dated
November 4, 2024 despite noticing the fact that on such date,
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it did not have requisite determination to consider an appeal
filed after 2020, the Division Bench made the reference. It has
differed with the view of the other Division Bench rendering
AI-Sumama Agro Foods Private Limited & Ors. (supra)
with regard to the validity of the order passed by a Court not
having requisite jurisdiction.
10. AI-Sumama Agro Foods Private Limited & Ors.
(supra), in an appeal directed against an order passed by the
learned Single Judge has considered the issue as to whether,
the learned Single Judge disposing of the writ petition by the
order impugned therein possessed adequate jurisdiction in
view of the allocation of business by the Hon’ble The Chief
Justice at that relevant point of time or not. It has held that,
the Chief Justice of a High Court alone has the power and
authority to allocate particular types of cases to particular
Judges. The jurisdiction of a Puisne Judge to hear a particular
case stems from the allotment of such case to that Judge by
the Chief Justice. That Judge will have no jurisdiction to hear
any other matter. If a Judge hears a matter which is not
within his determination and passes an order therein such
order will be void for want of jurisdiction.
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11. AI-Sumama Agro Foods Private Limited & Ors.
(supra) in the facts and circumstances of that case has held
that, on the day when the writ petition was disposed of, the
learned Single Judge was without determination and
therefore, the order of the learned Single Judge was a nullity
for inherent lack of jurisdiction.
12. Supreme Court in Garden Reach Shipbuilders and
Engineers Limited (supra) has considered the issue as to
whether judicial discipline and propriety in the light of Rule
26 of the Rules framed by the High Court at Calcutta under
Article 225 of the Constitution in relation to applications
under Article 226 thereof and the powers of the Hon’ble The
Chief Justice of the High Court as the master of the roaster,
was maintained in the facts of that case or not.
13. In the facts of Garden Reach Shipbuilders and
Engineers Limited (supra), a writ petition had been heard
along with an appeal with the consent of the parties appearing
in the appeal and the writ petition.
14. Garden Reach Shipbuilders and Engineers Limited
(supra) has noted that, since the Division Bench hearing the
writ petition was not vested with the determination to hear the
writ petition which was to be heard by a learned Single Judge,
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in accordance with the allocation of business by the Hon’ble
the Chief Justice the order passed by the Division Bench in
the writ petition was a nullity.
15. It has held as follows:-
“9. In the light of the law laid down by the High Court
itself in Sohan Lal Baid v. State of West Bengal, as
approved by a three-Judge Bench of this Court in State of
Rajasthan v. Prakash Chand which has subsequently been
approved by a Constitution Bench in Campaign for Judicial
Accountability and Reforms v. Union of India, as well as
Rule 26 (supra), we hold that any order which a bench –
comprising of two judges or a single judge – may choose to
make in a case that is not placed before them/him by the
Chief Justice of the High Court or in accordance with His
Lordship’s directions, such an order is without jurisdiction.
In other words, an adjudication, beyond allocation, is void
and such adjudication has to be considered a nullity. It
needs no emphasis that the Chief Justice of the High Court,
being the primus inter pares, has been vested with the
power and authority to set the roster, as articulated
in Sohan Lal Baid (supra), and such roster is final and
binding on all the ‘Companion Justices’ of the said court.
Plainly, therefore, the order dated March 11, 2024 and the
impugned order are without jurisdiction.”
16. Division Bench rendering the present reference did not
have requisite determination to consider a prayer under Order
XLI Rule 11 of the Code of Civil Procedure, 1908, on November
4, 2024. It has acknowledged the same in the order making
the reference. It has proceeded on the basis that on November
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4, 2024 factum of lack of jurisdiction was not brought to the
notice of the Division Bench, due to bona fide inadvertence
such fact was overlooked and that the lack of subtle
distinction between admission and hearing of First Appeals in
the determination then existing may have resulted in the
error.
17. AI Sumama Agro Foods Pvt. Ltd. & Ors. (supra) has
noticed All India Reporter 1990 Cal 168 (Sohan Lal Baid
vs. State of West Bengal & Ors.,) AIR 1982 SC 1198 (State
of Maharashtra vs. Narayan Shamrao Puranik), AIR
1982 SC 1198 (State of Maharashtra vs. Narayan
Shamrao Puranik), 1986 Volume 6 SCC 587 (Inder Mani
vs. Matheswari Prasad), (1998) 1 SCC 1 (State of
Rajasthan vs. Prakash Chand & Ors.), (2010) SCC OnLine
ALL 1740 (Smt. Maya Dixit & Ors. Vs. State of U.P.,).
18. These authorities both by the High Court and by the
Supreme Court have held that, a Single Bench or a Division
Bench derives jurisdiction to deal with and decide the cases or
class of cases assigned to them by virtue of determination
made by the Hon’ble The Chief Justice. Sohan Lal Baid
(supra) has held that, the power of the Hon’ble The Chief
Justice of a High Court to allocate business to a Bench is
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derived not only from the provision of Section 108(2) of the
Government of India Act, 1915 but it also inheres in the Chief
Justice of a High Court.
19. The authorities noted in AI-Sumama Agro Foods
Products Ltd. & Ors. (supra) have held that, no Judge or
Bench of Judges will assume jurisdiction unless the case is
allotted to him or them under orders of the Chief Justice.
Chief Justice of a High Court has been recognised to be the
master of the roster. Chief Justice has the prerogative to
constitute Benches of the Court and allot cases to the
Benches so constituted.
20. The Division Bench in FMAT 269 of 2024 has noticed
that the distinction between the expression “jurisdiction” and
“determination” and held that, the later being only technical
and administrative allocation whereas the former hits at the
root of the power exercised by the Court. It has noticed that,
jurisdiction is not conferred by the roster alone but is vested
in a Court in terms of a statute and Letters Patent of a
Chartered High Court. It has noticed that different Benches
ultimately act as the Chartered High Court and that powers of
the different Benches are conceived of by the Letters Patent. It
has also noticed that jurisdiction is conferred jointly by the
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Code of Civil Procedure, Appellate Side Rules as also the
Bengal, Agra and Assam Civil Courts Act.
21. The Division Bench making the present reference, has
clarified that, it does not question the proposition that the
Chief Justice is the Master of the Roster and matters cannot
be taken up indiscriminately by Benches without having
determination given by Hon’ble the Chief Justice.
22. The Division Bench making the present reference, was
not conferred with the determination by the Hon’ble the Chief
Justice to hear the appeal for the purpose of its admission
under Order XLI Rule 11 of the Code of Civil Procedure, 1908
when it has so done. Jurisdiction no doubt of the Court is
conferred by the provisions of law attracted or applicable. The
jurisdiction of the High Court in admitting the appeal under
consideration by the Division Bench making the present
reference is not questioned.
23. However, the question is whether, due to the Hon’ble
The Chief Justice not allocating the requisite determination to
that Bench on November 4, 2024 when such Bench exercised
powers to admit the appeal under Order XLI Rule 11 of the
Code of Civil Procedure, 1908, was such Division Bench with
requisite jurisdiction or not. On the strength of the Garden
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Reach Shipbuilders and Engineers Limited (supra) it has
to be held that the Bench making the reference was without
jurisdiction at the material point of time when it has
purported to exercise powers of admission of a First Appeal
under Order XLI Rule 11 of the Code of Civil Procedure, 1908.
24. While the High Court has the jurisdiction to admit and
dispose of a matter, individual Benches either sitting Singly or
in a Division Bench or otherwise, can assume jurisdiction over
the subject matter only in accordance with the allocation of
business by the Hon’ble The Chief Justice on the principles of
Master of Roster. High Court’s jurisdiction to decide the lis
may not be questioned. However, exercise of jurisdiction in an
individual case outside determination can be questioned in
the event, such Bench assumes jurisdiction beyond the
allocation of business by the Hon’ble The Chief Justice. It is
in this context that the order of that individual Bench is said
to be a nullity and void ab initio not because the High Court
did not have jurisdiction but because that individual Bench
was not allocated such business.
25. In view of the proposition of law laid down in
paragraph 9 of Garden Reach Shipbuilders and Engineers
Limited. (supra) the reference is answered by holding that, an
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order passed by a Bench of the High Court not been conferred
with the determination by virtue of the roster fixed by the
Hon’ble The Chief Justice, is vitiated by inherent lack of
jurisdiction so as to render the order so passed a nullity in the
eye of law and void ab initio.
26. Reference is answered accordingly.
[DEBANGSU BASAK, J.]
27. I agree.
[SHAMPA SARKAR, J.]
28. I agree.
[HIRANMAY BHATTACHARYYA, J.]
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