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Calcutta High Court
Karnani Mansion Residents … vs Karnani Properties Ltd. And Anr on 7 May, 2025
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
OD-1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APDT/26/2024
WITH CS/8/2016
KARNANI MANSION RESIDENTS ASSOCIATIONAND ANR
VS
KARNANI PROPERTIES LTD. AND ANR
BEFORE:
The Hon'ble JUSTICE SABYASACHI BHATTACHARYYA
And
The Hon'ble JUSTICE UDAY KUMAR
Date :7th May, 2025.
APPEARANCE:
Mr. Rohit Banerjee, Adv.
Mr. AltamashAlim, Adv.
Mr. SaptarshiBhattacharjee, Adv.
..for the appellant.
Mr. SabyasachiChaudhury, Sr. Adv.
Mr. ShounakMukhopadhyay, Adv.
Mr. Neelesh Chowdhury, Adv.
Mr. A. Poddar, Adv.
..for the respondent.
The Court:-The present appeal arises out of a judgment passed by a
learned Single Judge of this Court on July 03, 2024 in CS/8/2016.
The sole ground of challenge to the said judgment is that the learned
Single Judge did not have determination to hear the matter on June 12,
2024, when it was last heard before passing judgment.
Learned Counsel appearing for the appellant places reliance on
aNotification dated May 24, 2024 whereby the roster/determination of the
Original Side as well as the Appellate Side was published by order of the
Hon’ble the Chief Justice of this Court. As per the said
determination/roster, the learned Single Judge in question did not have the
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determination to hear suits of the year2016 on the relevant date,that is, on
June 12, 2024, on which the matter was last heard according to the
appellant. As such, it is contended that the said judgment is vitiatedby lack
of jurisdiction.
Learned Counsel argues that the Chief Justice of a High Court,
although “the first among equals” on the judicial side, is the sole repository
of powers in the administrative side to assign duties and matters and to
constitute the Benches ofthe said High Court.
In support of such contention, learned Counsel cites a Co-ordinate
Bench Judgment of this Court in the matter of Sohan Lal Baid Vs. State Of
West Bengal and others reported at AIR 1990 Cal 168 where the
proposition was laid down that the cardinal position cannot be overlooked
that for the subject matter jurisdictionto be exercised, the case must be
legally brought before the concerned Court having determination and that
the judgment pronounced by the Court, when notinvestedwith jurisdiction,
is void. While coming to such conclusion, the Co-ordinate Bench took into
consideration several statutes, inter alia referring to the High Court Act or
the Charter Act, 1861, as well as the Letters Patent dated May 14, 1862 for
the High Court of Judicature to be established in Bengal, apart from the
Government of India Act, 1915 and the synonymous Act of 1935 as well as
several precedents.
Learned Counsel for the appellant next cites a three-Judge Bench
decision of the Hon’ble Supreme Court in the matter of STATE OF
RAJASTHAN Vs. PRAKASH CHAND AND OTHERS reported at (1998) 1
SCC 1, whereby the Hon’ble Supreme Court, inter alia, relied on the
judgment rendered in Sohan Lal Baid (supra) and came to the conclusion
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that the administrative control of the Supreme Court vests in the Chief
Justice of India and as such it is his prerogative to distribute business of the
High Court, both judicial and administrative.
The jurisdiction of the Benches of the Supreme Court, it was
reiterated, on assigning, is limited only to such cases as allotted by the said
Bench by the Chief Justice or under his direction.
Learned Counsel next refers to a Five-Judge Bench decision of the
Supreme Court in the matter of CAMPAIGN FOR JUDICIAL
ACCOUNTABILITY AND REFORMS Vs. UNION OF INDIA AND ANOTHER
reported at (2018) 1 SCC 196 in support of the same proposition. The next
judgment citedon behalf of the appellant is a Co-ordinate Bench of this
Court in the matter of Kolkata Municipal Corporation and Others Vs. AI-
Sumama Agro Foods Pvt. Ltd. and Othersreported at 2021 SCC OnLine
Cal 3028. The Co-ordinate Bench, upon considering all the judgments in
the field, reiterated that the Puisne Judges can only take up the work which
is allotted to them by the Chief Justice or on his direction. No Judges or
Bench of Judges can assume jurisdiction in a case in any High Court unless
the case is allotted to him or them by the Chief Justice. It was held that the
jurisdiction of the Puisne Judges in part-heard cases stems from the
assignment of such case with the said Judge by the Chief Justice. That
judge will have no jurisdiction to hear other matters. If a Judge or a Bench
hears a matter which is not within his or its determination and passes an
order therein, such order will be void for want of jurisdiction.
Lastly, learned Counsel cites another judgment of the Supreme Court
in the matter ofGarden Reach Shipbuilders and Engineers Limited Vs.
Grse Limited Workmens Union and Others reported at 2025 SCC OnLine
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SC 582 where the self-same proposition pertaining to the Chief Justice
being the “Master of the roster” was reiterated.
Learned Senior Counsel appearing for the respondents, while
controverting the argument of the appellants, submits that the sole ground
of challenge in the present appeal isthe purported lack of determination of
the learned Single Judge while passing the impugned judgment. It is
contended by learned Senior Counsel that in the self-same Notification
dated May 24, 2024 which is relied on by the appellants, an exception was
carved out on the change of the roster in respect of the matters which are
reserved for judgment or under the caption “CAV” or the matters which are
part-heard.
It is contended that the hearing, in the present case, was concluded
by the learned Single Judge long back, on April 24, 2024. Learned Single
Judge, in his order dated April 24, 2024, had inter alia recorded that the
plaintiff had made his arguments and written notes were also filed on behalf
of the plaintiff. It was further recorded that a Special Officer had been
appointed in the said case by an order dated January 18, 2016, who had
filed a report. For the purpose of filing of such report, the matter was
directed to be listed under the heading “To Be Mentioned” on May 09, 2024.
On May 09, 2024, the learned Single Judge observed inter alia that the
Special Officer was present in Court in person and filed his report after
serving a copy to learned counsel for the plaintiff, which was taken on
record. More importantly, the learned Single Judge recorded that learned
counsel for the plaintiff had already concluded arguments and the Special
Officer had submitted his report of the matter, which was marked as “CAV”,
when certain clarifications were required by the learned Single Judge; for
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such limited purpose, the matter was placed in the list at the behest of the
learned Single Judge on June 12, 2024. On the said date, the matter was
also marked as “CAV”.
Learned Senior Counsel appearing for the respondent submits that as
such, although in the impugned judgment, the date of conclusion of the
hearing was formally mentioned as June 12, 2024, the hearing had infact
been concluded much earlier and on June 12, 2024, only a clarification was
sought by the learned Single Judge and answered on behalf of the plaintiff.
Learned Senior Counsel appearing for the respondent next takes the
Court through the previous orders of the learned Single Judge, in particular
the order dated May 09, 2024, to insinuate the recalcitrant conduct of the
defendant/ present appellant. It is pointed out that by the said order, it was
recorded by the learned Single Judge that by an order dated September 1,
2023, GA/6/2022 was disposed of by extending the time for filing the
written statement within a period of one week from date, subject to payment
of costs of Rs. 20,000/-.
The plaintiff had informed in a communication dated September 06,
2023 that the plaintiff was not having an account and requested the
defendant to pay the amount by way of cheque. The said communication
was duly received by the defendant on September 06, 2023 but, it was
recorded by the learned Single Judge,the defendant neither paid the amount
nor had given any reply. The learned Single Judge recorded the contention
of learned Counsel for the defendant who was present on February 09, 2024
that the defendant had tried to pay the amount of Rs.20,000/- by a cheque,
which the plaintiff had refused to accept.
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However, the learned Single Judge categorically recorded that counsel
for the defendant had produced no document to show that the defendant
had made any endeavour to comply with the order dated September 01,
2023. From the said act of the defendants, it was observed that it was
crystal clear that the defendant had not complied with the order dated
September 1, 2023 by paying the costs of Rs. 20,000/- and as such the
learned Single Judge closed the liberty to file written statement and directed
the matter to be placed in the list as an undefended suit.
As such, it is argued that the conduct of the defendant/ appellants
has been deplorable at all relevant points of time.
Upon hearing learned counsel for the parties, we cannot but take note
of certain salient aspects of the matter. First, in the veryNotification dated
May 24, 2024 which is relied on by the appellant, it was clearly mentioned
in the first Note beneath the determination of the respective Benches that all
matters on change of roster shall stand released and shall be posted before
the Bench/ Benches as per the roster. However, an exception was carved
out with regard to the matters which were reserved for judgment or under
the caption “CAV” or the matters which were part-heard.
There is no manner of doubt, as reflected from the order dated May
09, 2024, that the learned Judge had already recorded on the said date that
the argument of the plaintiff had been concluded and the Special Officer had
also submitted his report and had marked the matter as CAV. The suit
being posted as an undefended suit, there was no further scope of
arguments by the defendant. Thus, the hearing had been concluded for all
practical purposes.
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Hence, at least two parameters of the exceptions, as noted in the first
Note under the determination in the Notification dated May 24, 2024 were
satisfied to the extent that the matter was reserved for judgment and also
marked under the caption ‘CAV’. It may further be noted that the said
change of determination came only vide Notification dated May 24, 2024,
that is, subsequent to the matter being marked as CAV and arguments
being concluded on May 09, 2024, when the learned Single Judge
undisputedly had the determination to take up the matter.
Thereafter, the learned Single Judge, of his own, put up the matter on
the list on June 12, 2024, not under the heading “For Hearing” but under
the heading “To Be Mentioned” for the limited purpose of seeking
clarification which was addressed by the plaintiff and the matter was further
marked as CAV.
The question which arises for consideration is whether merely by
seeking clarification, the character of the matter as ‘CAV’ or as a matter
‘reserved for judgment’ is altered. In the opinion of this Court, the said query
should be answered in the negative.
A matter being marked as ‘CAV'(the short form of the Latin expression
“Curia AdvisariVult”) presupposes that the Court hadreserved the matter for
pondering over the same.
By being previously marked as’CAV’ at a point of time when the
learned Single Judge had determination, the matter automatically came
within the exception clause in the Notification dated May 24, 2024.The
Hon’ble the Chief Justice himself had made it amply clear in the Notification
that even in such matters, the concerned Court / Bench retainedjurisdiction
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and the matter would not be placed before the Bench which was newly
conferred with such determination by the said Notification.
In fact, such a rider is fully in consonance with normal prudence
since,after conclusion of argumentsin the matter and it being heard
completely, it would be palpable injustice to the litigant as well as the
appearing counsel if the matter was to be placed for hearing afresh before a
different learned Judge or Bench.
We are unable to agree with the contention of the appellant that
posting of the matter under the heading “To Be Mentioned” after being
marked as CAV altered the’CAV’ character of the matter. No further hearing
was given to the plaintiff, even as recorded in the order dated June 12,
2024, but mere clarifications were sought and obtained to facilitate the
Court in rendering a proper and complete judgment.
As such, there cannot be any quarrelwith the fact that the matter had
already been marked as CAV and retained its character as ‘CAV’when the
order dated June 12, 2024 was recorded.The categorization of the matter
under the heading “To Be Mentioned” on the said date and the noting of the
learned Judge himself that it was posted merely for clarification aretell-
talesigns in that regard.
Thus, merely because in the impugned judgment, the last date of
hearing was noted as June 12, 2024, it cannot be said that the learned
Judge did not have determination on June 12, 2024 when the matter had
already been marked previously as a CAV matter.
Hence, although there cannot be any quarrel with the proposition that
the Chief Justice of a High Court is the”Master of the roster” and is supreme
on allocation of determinationson the administrative side of the Court, the
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said principle is not applicable in the present case, since as per the
Notification of the Hon’ble the Chief Justice himself, CAV matters had been
excluded and the suit-in-question having already been marked as CAV, the
learned Single Judge retained determinationand ultimately passed the
impugned judgment of July 03, 2024.
Another aspect of the matter ought to be taken into account. The
matter had already been placed in the category of “undefended suit” and the
defendant did not have any further right of hearing due to its own act of
having lost the opportunity to file the written statement even after being
granted an extended lease of life by the suit court. Thus, in any event, even
on June 12, 2024, the defendant/appellant did not have any right of hearing
as such.
As such, the conduct of the learned Single Judge in enlisting the
matter and seeking a minor clarification solely from the plaintiff also does
not vitiate the said exercise otherwise.
Taking into consideration all the above aspects of the matter, we are of
the view that the present appeal cannot be sustained and is harrasive in
nature.
The sole ground of challenge raised in the present appeal is in fact
flimsy and frivolousand cannot be a valid ground for a challenge in appeal.
Hence, we are of the view that substantive costs ought to be awarded
against the appellant for the harassment caused to the plaintiff/respondent
in being forced to contest the present frivolous appeal.
Accordingly, APDT/26/2024 is dismissed on contest with costs of Rs.
50,000/-, to be paid by the appellants to the respondent within four weeks
from date.
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Consequentially, GA/1/2024 stands disposed of as well.
(SABYASACHI BHATTACHARYYA, J.)
(UDAY KUMAR, J)
Arsad, AR(CR)
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