MARIE FRANSISCA MAGNO ADVANI AND ORS. vs ASHIM KUMAR DUTTA AND ANR.

IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE

Present:
The Hon’ble Justice Rai Chattopadhyay


C.O. 3856 of 2025

Marie Fransisca Magno Advani & Ors.
Vs.
Ashim Kumar Dutta & Anr.


For the Petitioners : Mr. Anupam Bhattacharya
: Mr. Aniq Hafeeq
: Mr. Sudhakar Thakur
: Ms. Sana Sultana




For the opposite parties : Mr. Tarique Quasimuddin
: Ms. Sanchita Chaudhuri
: Mr. Adnan Lodi


Heard on : 28.08.2026

Judgment on : 02.09.2026

Uploaded on : 02.09.2026

Rai Chattopadhyay, J. :-

1. In the instant revision, the petitioners have challenged the
following two orders, firstly, an order of the Judge Bench-II,
Presidency Small Causes Court, Calcutta dated July 28, 2025 in
Ejectment Suit No. 192 of 2016 and secondly, a judgment and
order dated September 24, 2025 in Civil Revision Case No. 2 of
2025 by the Chief Judge, City Civil Court, Calcutta.
2. The petitioners’ grievance inter alia is as follows: -
The petitioners are the legal heirs and successors of the
original defendants in the Ejectment Suit No. 192 of 2016. That,
the petitioners filed four successive prayers in the said suit before
the learned Trial Court. Vide the petition dated May 10, 2024, the

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petitioners/defendants prayed for recall and/or modification of the
Court’s order dated July 15, 2023. The order dated July 15, 2023
by the Judge Bench-II, Presidency Small Causes Court, Calcutta
was to direct addition of the Administrator General, Government of
West Bengal, as a party in place of defendant No. 2 in the said
suit. That order was passed by the learned Trial Court by allowing
an application under Order I, Rule 10(2) filed by the present
opposite party/plaintiff, before the learned Trial Court.

3. The second application of the petitioner before the learned Trial
Court was that under Section 151 of the Code of Civil Procedure
dated February 12, 2021 in which the petitioner/defendant prayed
for a direction upon the plaintiffs to restore possession of the
defendant tenants in respect of godown/servants’ quarter situated
on the ground floor at the rented premises, in its original condition
for use and occupation by the said defendants.
4.
The third application by the present petitioners/defendants before
the learned Trial Court was that dated June 21, 2025 praying for
recall of the Court’s order dated February 19, 2025 directing for
amendment of plaint of the plaintiffs in terms of their application
under Order VI, Rule 17 of the Code of Civil Procedure.
5. The fourth and last application which was filed by the present
petitioners/defendants before the Trial Court is that dated June
21, 2025, in which the petitioners prayed for the relief before the
learned Trial Court for removal of roller shutter from over the
tenanted portion of the property and other obstructions allegedly
put on the entrance door of the suit premises by the plaintiffs/
landlords.
6. The petitioners are aggrieved that by dint of the impugned order
dated July 28, 2025, the Judge Bench-II, Presidency Small Causes
Court at Calcutta has dismissed all the four applications of the
petitioners as mentioned above. The petitioners say that such

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order of the learned Trial Court is illegal, improper and without
jurisdiction.
7. The said order of the Judge Bench-II, Presidency Small Causes
Court, Calcutta dated July 28, 2025 was challenged by the present
petitioners/defendants in a revision before the learned Chief
Judge, City Civil Court at Calcutta in Civil Revision Case No. 2 of
2025. Such revision has been dismissed by the said Court in the
order dated September 24, 2025 which is also impugned in the
instant case. According to the present petitioners/defendants, the
said order of the learned Chief Judge, City Civil Court, Calcutta
suffers from material irregularity, non-consideration of the
relevant facts as well as the provisions of law and thus from gross
illegality.
8. Mr. Anupam Bhattacharya, learned advocate has appeared on
behalf of the petitioners in the instant revision. He submits that
construction of roller shutter over the suit premises by the
defendants is ipso facto a proof of dispossession of the defendants
from the suit property by the plaintiff himself. It is submitted that
during pendency of the ejectment suit, such construction which
have an effect of dispossession of the defendant who is a bona fide
tenant over the suit property tantamount to abuse of the Court’s
process. Therefore, according to the petitioners, the Court should
have allowed the prayer of the petitioners for immediate removal of
the roller shutter and other obstruction from over the suit
property, giving free access thereto to the defendant/plaintiffs.
9. Regarding the order of the Court for adding Administrator General,
Government of West Bengal as a party in the suit in place of
defendant No. 2, it is submitted that the defendant No. 2 has left
behind at the time of his death, his legal heirs and successors who
are eligible and desirous to proceed with the ejectment suit as
above, in accordance with law. Therefore, such direction of the

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Court was absolutely unnecessary, unjust and unreasonable. He
submits that in the impugned order as above, the learned Trial
Court has not considered these factors and, therefore, erroneously
dismissed the petitioner’s application dated May 10, 2024 filed
before it.
10. Mr. Bhattacharya has further submitted that during pendency of
the ejectment suit, the plaintiff/opposite party has taken steps in
order to dispossess the valid tenant from the suit property by
unauthorizedly and illegally taking over possession of the godown
at the ground floor of the said premises. Therefore, according to
him, restoration of possession thereof in favour of the petitioner/
defendants is imperative for the purpose of proper adjudication of
the suit. He alleges that by refuting to allow the petitioner’s prayer
in his petition dated February 12, 2021, the Court has acted
unreasonably and in abuse of the process of law. He further
submits that dispossessing the valid tenant from the suit property
amounts to final determination of the suit itself for ejectment and
the decree which the Court would eventually pass in the said suit
would be impossible for execution any further, as the landlord has
already taken over possession of the suit property in his favour,
though only unauthorizedly.
11. Further, it has been submitted that the plaintiff/landlord filed his
prayer under Order VI Rule 17 of Code of Civil Procedure before
the learned Trial Court only motivatedly and with mala fide
intention for extending the scope of the suit. He submits that the
same is not tenable in the eye of law. He submits further that in
the plaint, the plaintiff/opposite party sought for ejectment on the
ground of reasonable requirement as well as default by the
defendants. However, in its petition under Order VI, Rule 17 of the
Code of Civil Procedure, the plaintiff sought to add a further
ground of nuisance which was not originally there in the plaint.
According to the defendants/petitioners, the same tantamounts to

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expanding the scope of the plaint, which is not permissible in the
eye of law. Further, it is submitted that the order of the Court
allowing such prayer of the plaintiff/opposite party under Order
VI, Rule 17 of the CPC was passed only ex parte without granting
opportunity to the present petitioners/defendants to contest with
respect to the said prayer of the plaintiff. Therefore, the
defendants/petitioners are aggrieved with such order of the
learned Trial Court allowing the plaintiff’s prayer for amendment of
plaint and by filing their petition dated June 21, 2025, the
petitioners/defendants sought for recall of the said order. Mr.
Bhattacharya, learned advocate for the petitioners has submitted
that the Court has misdirected itself and considered erroneously
the nature of the amendment petition and found the same to be
formal only. Such gross error on part of the learned Trial Court is
required to be revised in the instant petition, in view of the
attending facts and circumstances, Mr. Bhattacharya has
submitted.
12. Lastly, it has been submitted that the tenants/defendants cannot
be restrained to take over and enjoy peaceful vacant possession of
the suit property though the plaintiff has tried to do the same by
constructing roller shutter over the suit premises and other
obstructions creating hindrance as to the free access and
possession of the suit property, by the tenants/defendants. This
not only amounts to illegal, mala fide act of the plaintiffs but
renders the suit to be decided finally without the Court having
adjudicated upon the same. Mr. Bhattacharya has submitted that
this not only violates the substantive right of the tenant as to the
peaceful possession of the suit property but also is an abuse of the
process of the Court. All these factors have never been considered
by the learned Trial Court in the said impugned order while
considering the petitioner’s prayer and application dated June 21,

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2025. Hence, therefore, according to him, the said impugned order
suffers from impropriety even on this score.
13. Mr. Bhattacharya refers to the judgment of this Court in Gopal
Chandra Ghosh versus Tinkari Ray reported in (2016) 2 CHN 1 .
The following paragraph thereof is relied on: -
“65. Under such circumstances the action taken by the opposite party/landlord
is illegal and contrary to the provisions of Rent Act. He did all mischief which
amount to gross abuse of process of law and also violative of the order passed
by the learned Civil Court. Therefore, it would be the duty of the Court to
restore back possession to render justice and to set right grievous wrong. Be it
noted that if any dispossession is made by gross abuse of process of Court or in
violation of an order passed by a learned Court, it is the duty to restore back
possession. It may be at whatever stage of the proceeding, the petitioner who
is so dispossessed by unlawful manner and clear violation of Constitutional
mandate should be restored back possession.”

14. The petitioners have also relied on a judgment of Allahabad High
Court in Smt. Raj Shri Agarwal @ Ram Shri Agarwal & Anr.
versus Sri Sudheer Mohan & Ors. (judgment dated April 25,
2022 in Matters under Article 227 No. 6686 of 2018.
15. The plaintiff/opposite party is represented in the instant case. Mr.
Tarique Quasimuddin has represented the plaintiff/opposite party.
Mr. Quasimuddin has categorically submitted that the first
defendant died in the year 2019 and second defendant, her
brother died in the year 2022. After death of both the defendants,
the legal heirs even if there are any of the said defendants, did not
pursue the suit any further. It is submitted that the legal heirs of
the original defendants are the permanent residents and citizens of
United Kingdom. He submits that those persons do not pursue the
suit or protect the suit property, for which a tenant is duty-bound.
It is submitted that since after 2019, nobody resided over the suit
property. It is submitted further that the suit property is left
unguarded and vacant by the defendants/tenants for which the
outsiders have free access to the same posing huge threat to the
proper maintenance and safety of the suit premises. It is for this

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reason, Mr. Quasimuddin has submitted that the plaintiffs have
been compelled to put on roller shutter and other protective
measures to safeguard the property from invasion of the outsiders.
The roller shutter was installed in the year 2023.
16. With reference to the relevant portion of the evidence of the
plaintiffs, it has been submitted that the fact as above is an
admitted fact in the suit which does never become a threat for
petitioner’s rights or possession over the suit property. It is
submitted that the plaintiffs have acted absolutely bona fide and
participated in the proceedings before the Court by giving evidence
and also accepting therein the fact that some steps as above have
been taken up by the plaintiffs to safeguard the property itself. It is
submitted that challenge as to the impugned order of the learned
Trial Court is now infructuous in so far as the plaintiffs have
already been examined by the Court, cross-examined and
discharged. It is submitted further that the plaintiffs’ actual
physical presence in the suit property would automatically render
the protective measures taken up so far by the plaintiffs to be
removed from there, in order to give free access of the suit property
to the defendants/tenants and that the plaintiffs have no mala fide
intention to jeopardize the right of possession of the defendants/
tenants over the suit property till the time the Court passes any
decree in their favour, if any.
17. So far as plaintiffs’ application before the learned Trial Court
under order VI, Rule 17 of the CPC is concerned and the allegation
of the defendants for ex parte consideration thereof by the Court, it
is submitted by Mr. Quasimuddin that it would be evident from
order of the Court dated April 04, 2022 that copy of the said
petition filed by the plaintiff was duly served upon the defendants.
Therefore, the allegation of the Court having not granted any
opportunity of hearing to the tenants in this respect is only
unfounded, Mr. Quasimuddin has submitted.

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18. Mr. Quasimuddin has further informed about the alleged dilatory
tactics being undertaken by the defendants in the learned Trial
Court in proceeding with the suit, in so far as the said defendants
have said not to co-operate with the plaintiff or comply with the
Court’s order by duly attending the proceedings to enable the
Court to further proceed with the evidence in the case.
19. Mr. Quasimuddin has referred to an order of the Supreme Court
dated May 05, 2025 in Special Leave to Appeal (C) No. 12190 of
2025 to submit that according to the order of the Hon’ble Supreme
Court, the suit was to be decided within a period not later than
nine months from the said date of order by the Hon’ble Supreme
Court. It is submitted that such period is over way back the reason
therefor being attributable to the lackadaisical attitude of the
defendants in proceeding with the suit property. It is submitted
that in exercise of supervisory jurisdiction under Article 227 of the
Constitution, this Court may look into all the attending facts and
circumstances as above and pass a time-bound direction within
which the learned Trial Court may dispose of the suit, without
interfering into the impugned orders in the instant civil revision.
20. The scope of Article 227 and the extent of power and jurisdiction of
this Court thereunder has been authoritatively dealt with by the
Supreme Court in the judgment of Nandi Infrastructure
Corridor Enterprises Ltd. Versus B. Gurappa Naidu reported in
2026 SCC OnLine SC 745 . Let the following paragraphs from
there be quoted –
“31. In exercise of its supervisory jurisdiction, the High Court cannot act as
an appellate court, nor can it sit in appeal over the correctness of the
orders passed by courts and tribunals over which it exercises the power of
superintendence under Article 227.


35. In short, the principles laid down in the above matters is as follows:

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a) The power of superintendence under Article 227 is not to be exercised
unless there has been an (a) unwarranted assumption of jurisdiction, not
vested in Court or tribunal, or (b) gross abuse of jurisdiction or (c) an
unjustifiable refusal to exercise jurisdiction vested in Courts or tribunals.
b) It is also well settled that the High Court while acting under this Article
cannot exercise its power as an appellate court or substitute its own
judgment in place of that of the subordinate court to correct an error,
which is not apparent on the face of the record.
c) The High Court exercising supervisory jurisdiction does not act as a court
of first appeal to reappreciate, reweigh the evidence or facts upon which
the determination under challenge is based. Supervisory jurisdiction is not
to correct every error of fact or even a legal flaw when the final finding is
justified or can be supported. The High Court is not to substitute its own
decision on facts and conclusion, for that of the inferior court or tribunal.”

21. It could be beneficial for discussion the other judgments of the
said Court, relied on by the Supreme Court in Nandi
Infrasturcture judgment (supra) –
“This court in Shalini Shyam Shetty v. Rajendra Shankar Patil, has held:
….the power of superintendence is not to be exercised unless there has
been an (a) unwarranted assumption of jurisdiction, not vested in Court or
tribunal, or (b) gross abuse of jurisdiction or (c) an unjustifiable refusal to
exercise jurisdiction vested in Courts or tribunals. The learned judge
clarified if only there is a flagrant abuse of the elementary principles of
justice or a manifest error of law patent on the face of the record or an
outrageous miscarriage of justice, power of superintendence can be
exercised. This is a discretionary power to be exercised by Court and
cannot be claimed as a matter or right by a party.
This court in the case of Estralla Rubber v. Dass Estate (P) Ltd., has held
that the power of the High Court in interfering with the order of the Court
or Tribunal, would be restricted to cases of serious dereliction of duty and
flagrant violation of fundamental principles of law or justice.
This Court in a recent judgment of Garment Craft v. Prakash Chand Goel,
had an occasion to again deal with the exercise of Jurisdiction under Article
227 of the Constitution of India and held that, High Court exercising
supervisory jurisdiction would not act as a Court of First Appeal.”

22. Hence, it is therefore, a very well-settled proposition of law that
sitting in jurisdiction under Article 227 of the Constitution of

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India, this Court is not to act as an Appellate Court to look into
the correctness of the order of the learned Trial Court but only to
the legality, propriety, due and appropriate exercise of jurisdiction
by the Trial Court and also any manifest error of law patent on the
face of the record and/or outrageous miscarriage of justice.
23. In a suit of ejectment protection of the suit property is pivotal. It is
apparent from the records that the original defendants died in the
instant case, in the years 2019 and 2022 respectively. It is also
apparent and not disputed that the legal heir and successors of
the original defendants are British nationals and permanent
residents of the said country. Since after death of the original
defendants, none of the legal heirs and successors of them have
ever visited the Court to follow the proceedings in the same. In
such circumstances, the plaintiff/landlord might have been
compelled, for the sake of protection of the suit property, to
construct a roller shutter over the suit property. The learned Trial
Court having considered all the attending facts and circumstances,
have reached to a conclusion that the suit should be proceeded
with by rejecting the petitioner’s application seeking restoration of
possession. The same amounts to no impropriety or illegality as
alleged; rather it is a conscious and considered decision of the
learned Trial Court, for which it is not restrained by operation of
any law. Rather on the contrary, the prayer made by the defendant
petitioners before the learned Trial Court appears to be frivolous in
so far as since after 2022, there has not been anyone to reside over
or protect the suit property.
24. Similar is with regard to the order of the learned Trial Court with
respect to the petitioner’s prayer seeking setting aside of its earlier
order, allowing amendment of plaint by the plaintiffs. Firstly, the
record has revealed that the petitioners/defendants cannot be said
to have not granted any opportunity in this respect since the copy
of the application by the plaintiff filed before the learned Trial

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Court was duly served upon the defendants. Secondly, that by
allowing the application as above, the Trial Court has taken into
consideration the incidents which were generated only after filing
of the plaint and appeared to the Trial Court as relevant for
disposal of the disputed issues before it in the suit. This Court
finds no reason to interfere into such order of the learned Trial
Court.
25. There appears to be no patent illegality or manifest error in the
impugned orders of the Court. In exercise of power of
superintendence under Article 227 of the Constitution of India the
Court is empowered and authorized to go this far without going
into the merits as regards correctness of the order of the learned
Trial Court. No manifest miscarriage of justice is apparent in so far
as it is the plaintiffs in confirmation before the learned Trial Court
that no sooner the defendants/tenants would physically come and
take possession and charge of the tenanted suit property, the
protective measures put up by the petitioners over the said
property should be removed.
26. So far as the order of the learned Chief Judge, City Civil Court
dated September 24, 2025 in Civil Revision No. 2 of 2025 is
concerned, there is virtually no serious challenge as to the same
by the petitioner in the instant revision. Suffice is to say that the
order suffers with no illegality in view of the ratio of the judgment
of this Court in the case of Shib Shakti Cooperative Housing
Society, Nagpur versus M/s. Swaraj Developers & Ors. reported
in 2003 6 SCC 659 . Let is also be mentioned here that in this
regard, Mr. Quasimuddin appearing for the opposite parties have
argued that both the orders cannot be simultaneously challenged
by the petitioner in this case.
27. Having discussed as above, this Court is therefore, constrained to
find that the instant civil revision case is bound to fail. That, the

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impugned orders dated July 28, 2025 in Ejectment Suit No. 192 of
2016 by Judge Bench-II, Presidency Small Causes Court, Calcutta
and dated September 24, 2025 in Civil Revision Case No. 2 of 2025
by the Chief Judge, City Civil Court, Calcutta suffer with no
palpable illegality or manifest error of law to warrant interference
by this Court.
28. Hence, the Civil Revision No. CO 3856 of 2025 is dismissed.
29. Urgent certified copy of this judgment, if applied for, be supplied to
the parties upon compliance with all requisite formalities.

(Rai Chattopadhyay, J.)