Authority: High Court at Calcutta

Order Date: 15.10.2026 (Judgment) – CO No. 1258 of 2025

Case Overview

  • Parties: Petitioner – Mr. Surajit Lahiri (appearing in person); Opposite parties – The President, Governing Body, JIS College of Engineering & others (represented by Mr. Sanjoy Baid and Mr. Arijit Sarkar).
  • Nature of Proceeding: Application under Article 227 of the Constitution challenging an order dated 27.02.2025 passed by the Civil Judge, Senior Division, 3rd Court at Barasat, in Title Suit No. 1007 of 2017.
  • Background:
  • The petitioner sought declaration that a suspension order dated 26.09.2016 and a dismissal order dated 11.03.2017 were unlawful, and prayed for a mandatory injunction to continue payment of subsistence allowance.
  • An earlier application for temporary injunction under Order 39 Rule 1 & 2 was dismissed on 30.11.2022; a subsequent application under Section 151 was rejected by the impugned order (27.02.2025).
  • The petitioner argued that no statutory appeal exists against a Section 151 order, making the Article 227 petition maintainable, relying on Supreme Court precedents (Radhey Shyam (2015) 5 SCC 423, State of U.P. vs Roshan Singh (2008) 2 SCC 488) and High Court decisions.
  • Opposite parties contended that the relief sought fell within Order 39, and any order on such an application is appealable under Order 43.
  • Legal Issues: Whether an application captioned under Section 151 but substantively seeking relief under Order 39 Rule 1 & 2 can be bypassed to avoid the appellate remedy provided by Order 43; and consequently, whether the High Court can entertain the Article 227 petition.
  • Court’s Reasoning:
  • The Court reiterated that the nature of the relief, not the caption, determines the applicable procedural provision.
  • If the relief sought is within Order 39 Rule 1 & 2, the order is appealable under Order 43 Rule 1(r), irrespective of being described as a Section 151 application.
  • Citing the decisions in Ravi Maharia vs. Reliance Petroleum (2000 1 CHN 439), Sukhendu Maity (2005 3 CHN 1), and Radhey Shyam (2015), the Court held that a litigant cannot bypass the Code of Civil Procedure by mis‑describing the application.
  • The present application, though framed under Section 151, sought a temporary injunction to continue subsistence allowance – a relief squarely within Order 39 Rule 1 & 2.
  • Therefore, the impugned order rejecting the application is appealable, and the High Court should not entertain the Article 227 petition.

Final Outcome

  • The Court held that an appeal lies against the order dated 27.02.2025 of the Civil Judge, Senior Division, Barasat.
  • Consequently, CO No. 1258 of 2025 is dismissed as not entertained; the pending application is disposed of.
  • No order as to costs was made.
  • The petitioner may approach the appropriate forum for relief in accordance with law.

Topics: Civil Procedure, Article 227 Jurisdiction