RAMESHWAR DUBEY Vs. JOGINDRA LAL SAHA

JUDGEMENT

(1.) This is a petition under Article 227 of the Constitution as well as under Section 115 of the Code of Civil Procedure against an order of the Chief Judge. Presidency Small Causes Court, Calcutta rejecting an application for injunction. The petitioner filed an application before the Chief Judge disputing the validity of an election of n Councillor under the Calcutta Municipal Act. 1951 The petitioner filed also an application for injunction restraining the opposite party No. 2 from exercising the function of the Councillor of the Calcutta Corporation on the ground mentioned therein. This application for injunction was rejected by the Chief Judge, Small Causes Court, Calcutta on the ground that he had no authority to issue an injunction.

(2.) Mr. Dutta, who appears on behalf of the petitioner says that the Chief Judge, Small Causes Court by virtue of Sections 73 and 74 of the Calcutta Municipal Act is an election court and because it is an election court, therefore, it is civil court and because it is a civil court, the entire Code of Civil Procedure will be attracted and because the Code of Civil Procedure is attracted, the Chief Judge has the power to issue injunction under Order 39 Rule 1 as well as Order 39 Rule 2 of the Code of Civil Procedure and in any case he has the power to issue injunction under Section 151 of the Code.

(3.) Stated in the aforesaid manner, the rule must be discharged on the argument of Mr. Dutta. If it is accepted that the Chief Judge is a civil court and if it is further accepted that he is to follow the Code of Civil Procedure, the petition under Order 39 Rule 2 of the Code of Civil Procedure being rejected by the trial court, an appeal would lie to this Court against such rejection if an appeal lies to this Court, no petition under Section 115 of the Code of Civil Procedure would lie and, therefore, the rule should be discharged on that ground.