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TMI Blog2010 (9) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... erim order will continue till the disposal of the writ petition and it has to be understood the request of the Appeal Court to the Learned Trial Judge is a mandate and that mandate as far as practicable has to be respected - accordingly, once again request the Learned Trial Judge without wasting any further time, to decide the writ petition itself within fortnight from date of production of this order without fail - 344 of 2010 - - - Dated:- 13-9-2010 - Kalyan Jyoti Sengupta and Kanchan Chakraborty, JJ. REPRESENTED BY : Shri Banerjee, Advocate, for the Petitioner. Shri Roychowdhury, Sr. Counsel, for the Respondent. [Order]. The Court : This appeal is against an interim judgment and order dated 17-6-2010 passed by the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ground of alternative remedy. On that proposition of law the said appeal was allowed. 5. It appears that in spite of the aforesaid direction of the Appeal Court the writ petition for some reason or other should was not heard out for which we do not want to probe into the matter. There may be varieties of reasons for not disposing of the matter within the time fixed by the appeal Court. 6. No interim order was passed in the writ petition at the early stage not even by the Appeal Court on earlier occasion. It was thought that writ petition would be disposed of within eight weeks as desired by the Appeal Court. 7. Taking advantage of pendency of the writ petition without any interim protection the respondents started taking coercive m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit petition in terms of the direction of the Appeal Court. The bogie of alternative which is sought to be advanced in this case over and over again is not entertainable in view of the judgment rendered by us on previous occasion and now this point is hit by the principles of res judicata, since no challenge has been made against the aforesaid Division Bench judgment and order. 10. Mr. Banerjee, further submits that if the impugned order of Tribunal is allowed to be operative then the recovery will be made from the third party, it cannot be done under the law as the third party is not answerable or liable to pay any duty and this duty has to be paid by the manufacturer. The ultimate consumer is not required to pay. Mr. Roychowdhury, Learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application for interim relief only and no endeavour was made to hear out the writ petition although by that time eight weeks time limit having been expired. We find that interim order passed by the Learned Trial Judge in the first application was not appealed against. The only question is whether it needs to be modified to make it operative or not. We are of the view that since the writ petition could not be heard within the time limit some interim measure is required. The learned Trial Judge by the first order has granted some relief but something more has to be provided, because it is not the fault of the appellant/writ petitioner but it is that of the Court for the writ petition could not be heard out within the time limit as stipu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly, once again request the Learned Trial Judge without wasting any further time, to decide the writ petition itself within fortnight from date of production of this order without fail. Since Mr. Roychowdhury submits that the affidavit-in-opposition to the writ petition is ready to be filed and the same may be filed at the time of hearing of the writ petition, however, copy of the same shall be supplied in course of tomorrow to the Advocate on record of Mr. Banerjee s client. Affidavit-in-reply may be made ready for affirmation within a period of two weeks from date, and the same may be filed at the time of hearing. 15. The application is disposed of. 16. It is recorded that affidavit-in-opposition is handed over with the Advocate on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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