DEPUTY MANAGING DIRECTOR Vs. NABA KUMAR MONDAL

JUDGEMENT

(1.) The present revisional application is directed against an order dated 6th April, 1999 passed in Misc. Appeal No. 85 of 1999 confirming the order No. 11 dated 22-2-1999 passed by the 6th Court of Civil Judge, Senior Division in Title Suit No. 65 of 1997. By the original order passed by the trial Court it disposed of a petition for temporary injunction on contest directing parties to maintain status quo. The said order was challenged by way of Miscellaneous Appeal and the same was disposed of by an order dated 3 rd Sept. 1997. Against the same, the revisional Court was moved under Section 115 of the Code of Civil Procedure and C.O. No. 2666 of 1997 was obtained which was disposed of on 23rd July, 1998. The impugned order is the resultant upshot of the aforesaid order passed in an earlier revision as noted by this Court. As such the said revisional order shall have privotal bearing on the impunged order under challenge which is for consideration. Accordingly, it is felt that a reference is required to be made to the earlier order of revision and it appears that in terms of the operative order of earlier revision, Tewari, J. did not go into the merits of the same and a finding has been sought to be arrived at that a further enquiry about the matter is noted. Accordingly, the revisional application was disposed of by the learned Brother J. by disposing of the petition by directing the trial Court to examine whether the amended scheme published on 7th April, 1992 has been finally approved and enacted under the Electricity (Supply) Act, 1948. It has been further observed that if the scheme has already been finalised, the learned trial Court shall vacate the status quo order passed by the learned appellate Court. As such the trial Court is hereby directed to complete this exercise within 30 days from the date of communication of the said order. It appears that after the remittance of the matter by way of remand, the Court below seems to have been influenced by the operative portion of the aforesaid order. Even in the order impugned passed by the appellate Court, a reference was made to the aforesaid operative portion of the revisional order passed by this Court and in the wake of the same, the impugned order has been passed. This Court before scrutinising the matter in details is confronted with the aforesaid order which created certain difficulties for this Court. At the first blush it appears that an order passed by a Court of co-ordinate jurisdiction is normally and generally binding on the said Court of coordinate jurisdiction at a latter stage. This Court has the occasion to peruse the revisional order and in fact wanted sincerely to give effect to the said revisional order. Unfortunately, however, the present Court is bit perplexed by the tendor of the order in view of the operative part that if the scheme has already been finalised then the learned trial Court will vacate the statute quo order passed by the learned appellate Court. This Court does not know as to whether the said observation is resultant effect of inadvertent mistake or alternatively it may be due to some unhappy expression used in the said order because normally a subordinate Court should not have any right to vacate the interim order passed by the superior Court. Mr. Ray, the learned Counselfor the petitioner, in his usual fairness had not pointed out the same to this Court but in order to interpret the order, this Court cannot overlook part of the said order as it is believed that High Court's order is to be read in terms of its letter reflecting the spirit of the order. If the order in question is couched with letters, letters are required to be given literal construction. Therefore, this Court in fact is in some confusion to follow the meaning flowing from the operative part of the said order. Mr. Ray, the learned Counsel for the petitioner, has further submitted that disposal of the said revisional application has made provision for the effect that if the scheme has already been finalised then the trial Court would vacate the status quo order but it is conspicuously silent if the scheme has already not been finalised then what the trial Court should do. According to Mr. Ray, the same should have been spelt out in the order and it cannot be afforded to be delightfully vague. Mr. Ray's further submission is that the order as it stands makes provision for one way traffic but it does not give any indication as to what should be the procedure adopted if the traffic flows from the other end, if the scheme is not finalised. According to Mr. Ray, the said order should not have been given effect to either in terms of its letters or in terms of its spirit. Mr. Ray has made no reference to the decision of Sir Asutosh Mookerjee, the celebrated Judge of this Court in the case of Virjiban Das Moolji v. Biseswar Lal Hargovind, reported in AIR 1921 Cal 169 where it has been opened that the decision of single Judge is required to be treated with respect and ordinarily the same should be followed if it is found applicable. But that does not imply that he cannot examine the matter and it is not competent to him to take a contrary view if he is convinced that the decision is erroneous. The answer will depend on variety of circumstances of which some of factors are mentioned. One of the factors, that if the decision gives adequate reason for the conclusion but the position is indefensible on principle that although a Judge may feel absolutely convinced that the decision is erroneous in law, he is still bound to decide against his own opinion and successor Judge will be reduced to an automation on production of earlier judgment. A further reference was made to the case of Pieco Electronics and Electricals Ltd. v. Smt. Tribeni Devi, reported in AIR 1990 Cal 135 where a Division Bench of this Court in para 18 of the same in the light of the decision laying down the ratio of law of Sir Asutosh has indicated in the earlier judgment and it was held that if the subsequent Bench is absolutely convinced that the decision is erroneous, the later Bench is not bound by the earlier Bench. Subsequently, a further reference was made to the case of Smt. Niharika Kundu v. Kalipada Dey reported in (1995) 1 Cal LJ page 1, where a reference to the aforesaid decision was made and where it has been observed by placement of reliance on the said decision that the given case is a classical case where strict adherence to the rules of procedure may make justice a casualty because an avenue is made open to a party to explore his remedy but he is not allowed to toddle that parth to ventilate his grievance. It appears that the said judgment is in line with the earlier decision.

(2.) The said contention of Mr. Ray has been repelled by Mr. Bhattacharya firstly by drawing a line of distinction, as according to him, the same may be assumed to be correct proposition of law but that is distinguishable in a given case where a Court of coordinate jurisdiction has passed even assuming an erroneous order at an earlier stage which is binding on a successive stage before a Court of coordinate jurisdiction. Mr. Bhattacharyya has referred to some of the decisions but before embarking into analysis of the same though more reference was made to the same but the Court at its own try to apply its mind with regard to the decision not cited from the Bar which may have its bearing on the question. This Court of its own tends to refer to the case of Laxmi Shankar Srivastava v. State (Delhi Administration), reported in AIR 1979 SC 451 at para 11 thereof where it has been held by the Supreme Court that if no analysis of law is made, it ceases to be a binding authority. Here, the order of Brother Tewari, J. passed in revision is not backed up by any analysis of law and as such in the light of the aforesaid decision it becomes doubtful to this Court as to how far and whether the said order can have a binding authority at a successive stage. This Court is constrained to remind itself once again that it cannot harmonise itself with the operative part of the order of Tewari, J. in C.O. No. 2666 of 1997 where His Lordship has directed that if the scheme has already been finalised, the learned trial Court shall vacate thestatus quo order passed by the learned appellate Court. The said observation apparently appears to militate against rudimentary notion of fundamental concept as this Court cannot be reconcile itself to the operative part of the order where direction as to the effect that the trial Court will vacate the order of the appeal Court as it may have a far reaching effect making erosion into the system of judicial hierarchy. Mr. Bhattacharyya, the learned Advocate appearing for opposite parties, inter alia , amongst other decisions cited by him has drawn to the case of Authorised Officer, Land Reforms v. M. M. Krishnamurthy Chetty, reported in (1998) 9 SCC 138 and he has drawn to the last sentence of a cryptic order passed by the Supreme Court that it is well settled that even orders which may not be strictly legal become final and are binding between the parties if they are not challenged before the superior courts. There is no doubt with regard to the general proposition emanating from the said observations of the Supreme Court but as it is by way of remand, therefore, the order of remand is required to be interpreted. Therefore the question which is left open to be agitated before this Court is about the construction of the order of remand. There appears that though parties have submitted themselves to the order of remand but how the order of remand is to be construed and what is the nature of direction contained in the order of remand. There is doubt raised about the nature of the order of remand and the said order of remand provides for one way arrangement and not for the other way. The rule of precedence is followed as a procedural law to prevent anarchy in judicial system. It is not out of context to make a mention that construction of rules or procedure should promote justice and prevent its miscarriage to do justice in myriad situation of all which cannot be envisaged. Rules or procedure should not be allowed to become mistress but they should be relegated of position to the hand made of justice and in support of such observation this Court with respect tends to rely on the case of Pero v. Fernandeo Lopez, reported in AIR 1989 SC 2206 which is relied upon by this Court of its own without being cited from the Bar. Therefore, there is difficulty to interpret the order of remand and if interpretation of the order of remand and the nature of direction contained therein are difficult to decipher, the Court cannot but be in a region of uncertainty to give effect to the same and accordingly the question arises as to how far the same retains its binding character on the Court if the directions contained in the order of remand cannot be appreciated nor it can be explained normally from the reading of the same then different authorities may interpret the order differently and that will encourage anarchy into judicial system and therefore in order to prevent one mischief, the other mischief will creep its head from the other direction. Therefore, this Court is poised in a crucial and critical situation as in its experience does not face such a curious and crucial proposition of law and as it is required to resolve, it, therefore, it has taken the pains to analyse it in its own way after giving much introspection to it by application of its originality in the prospective of limited light being radiated from available judgment. Therefore, the other judgment cited by Mr. Bhattacharya may not subserve the parties to answer to this question as this proposition of law is answered by this Court in the manner by being conscious of trapping of its limitation that if an order passed erroneously where construction of the tenor of the order is difficult and there is also development of one of the myriad situation where a subordinate Court is directed to vacate the subsisting order of an interim nature of a superior Court which will disturb the entire pattern of judicial hierarchy. The said order passed in revision does not provide for alternative, namely, as to what will happen if the connected scheme has not been finalised, namely, keeping one option for the Court open but by not making the other provision how to exercise in the event if the scheme is not finalised. Therefore, this Court feels that such type of orders which may appear to be puzzling in nature apart from having their intrinsic element of erroneous character, the Court cannot but be reduced to a state of automation as pointed out by Sir Asutosh in the celebrated judgment as cited before. This Court cannot reconcile itself to the reality of its relegation to the position of automation by way of abdication of mental process, therefore, this Court tends to lay down the proposition of law that a Court of coordinate jurisdiction can overlook and byepass an order passed in the earlier stage of coordinate jurisdiction if the order appears to be not understandable and the same is contrary to the structural pattern ofthe system of judicial hierarchy and if there is possibility of giving wide interpretation of the nature of construction contained in the order of remand, the different Courts in interpreting the said order may be in the state of disarray. Therefore, the estimate of this Court by placement of reliance on the above-noted decision is of the view that in an order of remand passed by coordinate jurisdiction, such Court if it finds from that order of remand and the direction contained therein are palpably erroneous and they militate against t_ order of remand as envisaged under provisions of Order 41, Rules 23 to 27 and the directions are required to be couched in a lucid manner. It is not out of context to mention with regard to an old case where Chief Justice Rankin has given a caution that while making an order of remand, the Court making a remand is expected to arrive at its own conclusion and should not pass over the same to subordinate Court which it could have done itself. Here, the revisional Court can after looking at the scheme arrived at its own interpretation and such delegation under the garb of remand has been deprecated in most caustic term by Justice Rankin in the case of Promotha Nath Mazumdar v. Nagendra Nath Mazumdar reported in 33 Cal WN page 1211 at 1214 to 1215 : (AIR 1930 Cal 235).

(3.) Now coming back to the resuming of the facts of the case, it appears that the plaintiffs , who are opposite parties in this revisional application, filed a connected Title Suit against the Calcutta Electric Supply Corporation Limited and its officers praying for a decree of declaration that the plaintiffs are the sole and absolute owners of the suit properties and the defendants have no authority to interfere with the peaceful possession of the plaintiffs by fixing High Tension Overhead Wires for the purpose of transmission of electric energy from the generating Station of Pujali, Budge Budge, without the consent and approval of the plaintiffs and also for a decree of permanent injunction for restraining the generating agency from continuing to fix the concerned High Tension energy line over the suit properties. The plaintiffs prayed for interim injunction directing the defendants to be restrained from drawing high voltage energy line over the suit properties. The prayer was refused by the Court below but in the appeal being Misc. Appeal No. 89/97, the appeal Court passed an order upon the Calcutta Electric Supply Corporation Limited to maintain status quo. The same was challenged in the connected revisional application under Section 115 of the Code of Civil Procedure being C.O. No. 2226/97 and on the basis of the said order the matter was directed to be heard by the trial Court in the light of the aforesaid directions. The directions have already been mentioned hereinbefore and the directions are specifically to the effect that the trial Court will examine whether the amended scheme published in April, 1992 has been finally approved and sanctioned under Section 28 of the Electricity (Supply) Act, 1948 and if the scheme has already been finalised the trial Court would vacate the order of status quo passed by the appeal Court.