JATINDRA NATH GHOSH Vs. NIRANJAN CHAKRABORTY

JUDGEMENT

(1.) THIS is an application for stay of the operation of the order dated 7th September, 1992 passed by pad ma Khastagir, J. filed by the appellant. By the said order dated 7th september, 1992 Padma Khastgir, J. did not pass any order on the application for vacating an order passed by Ajit Kumar Sengupta, J. on 15. 7. 92. The said order passed by Ajit Kumar Sengupta, J. was affirmed on 17. 7. 92. The said application for vacating the order was not entertained solely on the ground that the said application had been, taken out in the name of the Constituent Attorney and that the applicant-petitioner had no authority to take out the said application for and on behalf of the appellant jatindra Nath Ghosh and others. Before us also an application for stay of the operation of the order of the learned trial Judge had been filed by Sri shansanka Sekhar Pan, the Constituent Attorney of the appellant petitioners. Shansanka Sekhar Pan was not a party and that such petition was filed in the name of the said Constituent Attorney allegedly on behalf of the appellant, Jatindra Nath Ghosh and 5 others. Before us a preliminary objection had been taken by Mr. Jayanta Mitra, Learned counsel appearing on behalf of the respondent opposite party that Shasanka Sekhar Pan, the Constituent Attorney of the appellant had no locus standi to file the appeal and the application and he was not entitled to execute the Vakalatnama on behalf of the appellant and as such, the application for appeal is to be dismissed in limine.

(2.) BEFORE dealing with the preliminary objection it is necessary to set out some of the facts which are relevant for the purpose. A Title Suit No. 40 of 1987 was filed by Niranjan Chakraborty, plaintiff-opposite party against the appellant Jatindra Nath Ghosh in the court of 2nd Musif, Baruipur "for a decree of the plaintiffs tenancy right under the predecessor in interest of the proforma defendants in terms of the lease agreement of the suit land and thereafter under the proforma defendant" as also "for a permanent injunction restraining the principal dedendants from forcibly ousting the plaintiffs possession from the suit land. " The suit land is a piece and parcel of 26 decimals of Danga Land of mouza Barhansfartabad, Police station Sonarpur, District 24 Parganas (Sourth ). It was further stated in the said suit that the plaintiff-opposite party took settlement of the said land for the purpose of cultivation.

(3.) ON or about 20th March, 1987 immediately after filing the suit this plaintiff-opposite party made an application under Order 39, rules (1) and (2) read with Section 151 of the Code of Civil Procedure prayding, inter alia, for an interim order of injunction against the appellant pending of the said suit and that in spite of the best efforts made by the plaintiff-opposite party the said injunction could not be heard and disposed of by the learned munsif which was still pending before the court below. It was alleged that the plaintiff-opposite party was an old man of 75 years and was residing with his wife aged about 65 years at his premises and taking advantage of the old age and infirmity of the plaintiff-opposite party and his wife, some local people, viz. Sri Shasanka Shekhar Pan, who is stated to be the constituent Attorney of the appellant and his associates, forcibly encroached upon the said suit land with the help of their muscle-men and decided some of the properties belonging to the plaintiff-opposite party. The incident took place on 9th June, 1991. it was further stated that Shri Shanka Shekhar Pan allegedly on the basis of general power of attorney given by the appellant was only to conduct the said litigation in the Baruipur Court. The said incident was reported to the local Police Station on June 9, 1991 and ultimately, on an application, under Section 144 of the Criminal Procedure Code, the learned Executive magistrate, 2nd Court, Alipur passed an order in M. P. Case. 1393 of 1991 on 29th June, 1991 directing the Officer- in- Charge, Sonarpur Police station to enquire and report by 3rd August, 1991 and to see that no breach of peace takes places or any wrongful action is done by the opposite party therein in the said suit land.