Jayanta Kumar Aryya & Anr. Vs Madhushree Nag — Calcutta HC (2024) — LawSathi Research

Jayanta Kumar Aryya & Anr. Vs Madhushree Nag — Calcutta HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

Recall of the coordinate Bench's dismissal order dated October 3, 2024 relating to S.A. 455 of 2009, with condonation of the delay in filing the restoration application; restoration of the appeal to its original file and number; restoration of the interim order subsisting on October 3, 2024 under the conditions of the original grant (if any); direction that the Advocate for respondent nos. 1–3 file a 'No Objection' Vakalatnama within a fortnight, failing which the erstwhile Advocate's appearance is deemed to subsist; and instruction that the appellants' Advocate communicate the order to the instructed 'No Objection' Advocate at the earliest.

Issue for consideration

Whether the dismissal of the appeal (S.A. 455 of 2009) by the coordinate Bench on October 3, 2024 was justified, given that the Registrar's report showed the 'No Objection' Vakalatnama requirement was directed at the respondents' Advocate and not the appellants. +1 more

Court's answer

The factor — evident from the Registrar Administration (L & OM) report dated May 1, 2024 — that the 'No Objection' Vakalatnama direction had been addressed to the learned Advocate for respondent nos. 1, 2 and 3, and not to the appellants, was obviously overlooked by the concerned Division Bench; accordingly, the appeal could not have been dismissed for the non-compliance of the court's direction by the respondents.

Ratio / Principle

The delay in preferring the present recall applications has been sufficiently explained and is therefore accepted (condoned).

Key takeaways

CAN 11 of 2025 and CAN 12 of 2025 are allowed: the order dated October 3, 2024 passed in SA 455 of 2009 is recalled on condonation of the delay in filing the restoration application, and the appeal is restored to its original file and number.ratio¶11
The interim order subsisting on October 3, 2024 immediately before the dismissal stands hereby restored, in terms of the conditions imposed in the original order granting such interim order, if any.ratio¶12

Detailed headnote1 paragraphs

S.A. 455 of 2009 (Jayanta Kumar Aryya and another v. Madhushree Nag), decided 5 March 2025 by Sabyasachi Bhattacharyya, J. and Uday Kumar, J. — recall applications CAN 11 and CAN 12 of 2025 allowed. A coordinate Bench had dismissed the appeal on 3 October 2024 because the appellants' Vakalatnama of 15 March 2022 was filed without 'No Objection' from their previous Advocate, read as a breach of the court's earlier directions. This bench found, from the Registrar Administration (L & OM) report of 1 May 2024, that the 'No Objection' Vakalatnama requirement had in fact been directed to the Advocate for respondent nos. 1–3, not the appellants; that overlooked factor meant the appeal could not properly have been dismissed for the respondents'-side non-compliance. The delay in filing the recall applications was held sufficiently explained. Accordingly, the 3 October 2024 order was recalled with condonation of the delay, the appeal was restored to its original file and number, and the interim order subsisting just before dismissal was reinstated under its original conditions (if any). The respondents' Advocate was directed to file a 'No Objection' Vakalatnama within a fortnight, failing which the erstwhile Advocate's appearance continues by default. No precedents or statute references appear in the judgment; the issuing court is not identified in the supplied text.

5^th March, 2025 (AK) 05

S.A. 455 of 2009 IA No: CAN 11 of 2025 CAN 12 of 2025

Jayanta Kumar Aryya and another Vs. Madhushree Nag

Mr. Indra Nath Mukherjee Mr. Sabyasachi Mukherjee

...for the appellants.

The present application has been filed for recall of an order dated October 3, 2024 passed by a coordinate Bench on the ground that the appellants have filed Vakalatnama on March 15, 2022 without taking ‘No Objection’ from the previous Advocate, which was construed by the coordinate Bench to be a violation of the previous directions of the court.

However, from the annexures to the application, we find that the report of the Registrar Administration (L & OM) dated May 1, 2024 indicated that it is the learned Advocate for the respondent nos.1, 2 and 3 who was directed to file Vakalatnama with ‘No Objection’ endorsement and not the appellants.

Hence, the said factor was obviously overlooked by the concerned Division Bench and the appeal could not have been dismissed for non-compliance of the court’s direction by the respondents.

The delay in preferring the present applications has also been sufficiently explained.

2

Accordingly, CAN 11 of 2025 and CAN 12 of 2025 are allowed, thereby recalling the order dated October 3, 2024 passed in SA 455 of 2009 on condonation of the delay in filing the restoration application and restoring the said appeal to its original file and number.

The interim order subsisting on October 3, 2024 before the said dismissal, stands hereby restored in terms of the conditions imposed in the original order granting such interim order, if any.

The learned Advocate for the respondent nos.1 to 3 shall positively file a ‘No Objection’ Vakalatnama within a fortnight from date.

In the absence of such Vakalatnama, it will be deemed that the appearance of the erstwhile learned Advocate for the respondents subsists.

Let this order be communicated to the learned Advocate having instruction to appear on ‘No Objection’ on behalf of the respondent nos.1 to 3 by the learned Advocate for the appellants at the earliest.

(Sabyasachi Bhattacharyya, J.)

(Uday Kumar, J.)