Subrata Talukdar, J.@mdashBy filing CO 4218 of 1991 the petitioner challenges the order impugned No. 33 dated 13th of November, 1991 passed by the Ld. Munsif 1st Court at Arambagh in Misc. J case No. 5 of 1985.
2. The petitioner is the preemptee in the said Misc. J case No. 5 of 1985 and the opposite party is the preemptor therein.
3. The case of the petitioner-preemptee in brief is that the preemptor opposite party filed an application for preemption u/s 24 of the West Bengal Non-Agricultural Tenancy Act claiming preemption in respect of a property in respect of which a sale transaction took place in the year 1978.
4. According to the petitioner, the opposite party claimed preemption on the ground that he became a co-sharer of the suit property by virtue of purchase of a portion thereof in the year 1967. However, the other co-sharers of the suit property sold their shares in favour of the petitioner without notifying the petitioner about the sale.
5. The claim to co-sharer ship by the opposite party was denied by the petitioner arguing that the modified settlement records of the holding of the petitioner stood separated and was not the same as that claimed by the opposite party. The Ld. Munsif (now Civil Court, Junior Division) was pleased to allow the Misc. J Case No. 5 of 1985 by order dated 27th November, 1986 on contest.
6. The petitioner thereafter preferred Misc. Appeal No. 61 of 1986 before the Ld. District Judge at Hooghly. The said Misc. Appeal was finally decided by the Ld. 2nd Additional District Judge, Hooghly by his judgment and order dated 7th April, 1990.
7. The Ld. Appellate Court was pleased to send back the Misc. Appeal on remand to the Ld. Trial Court with a direction that the Ld. Trial Court should grant an opportunity to the opposite party to amend the petition for preemption in the manner as indicated by the Ld. 1st Appellate Court. It was, inter alia observed by the Ld. 1st Appellate Court that upon amendment of the West Bengal Land Reforms Act by the West Bengal Land Reforms (Amendment) Act, 1981, an application u/s 24 of the West Bengal Non-Agricultural Tenancy Act is not maintainable and the petitioner must be given an opportunity to amend his preemption petitions suitably to convert the same to a petition u/s 8 of the West Bengal Land Reforms Act.
8. Pursuant to the judgment and order of the Ld. 1st Appellate Court as indicated above the preemptor-opposite party filed a proposed amendment claiming preemption u/s 8 of the West Bengal Land Reforms Act instead of Section 24 of the West Bengal Non-Agricultural Tenancy Act and also applying for condonation of delay vide the provisions of Section 5 of the Limitation Act. The petitioner-preemptee contested the amendment petition by filing a written objection.
9. It was strenuously argued by the petitioner on remand that the original petition for preemption resting only on a claim of co-sharership, the preemptor could not by way of amendment introduce a new claim of vicinage. Failure on the part of the preemptor to claim vicinage in time has resulted in the accrual of a valuable right in favour of the petitioner which, ought not to be frustrated by way of an amendment.
10. However, the Ld. Munsif by the order impugned No. 33 dated 13th November, 1981 was pleased to allow the application for amendment dated 7th August, 1990.
11. Sri Ram Prakash Banerjee, Ld. Counsel for the petitioner has argued that the amendment could not be allowed at the stage after remand and the order of remand cannot be construed so widely so as to repudiate the basic nature and character of the case presented before the Ld. Munsif. Sri Banerjee points out that by way of an amendment the preemptor cannot be allowed to raise a new plea.
12. He further submits that under the provisions of the West Bengal Land Reforms Act a time period of limitation has been provided for claiming preemption, viz., a period of 4 months u/s 8 of the said act.
13. According to Sri Banerjee, the claim to preemption would arise 4 months from 24th of February, 1979, i.e. when the transaction was completed and the preemptor having failed to claim preemption on the ground of vicinage within the said period of 4 months, he could not be granted the privilege of claiming the same by way of a belated amendment.
14. Sri Banerjee therefore assails the judgment and order impugned of the Ld. Trial Court as being without jurisdiction.
15. Sri Bhaskar Ghosh, Ld. Senior Counsel appearing on behalf of the opposite party-preemptor supports the order of the Ld. Trial Court on the ground that there is no change in the basic nature and character of Misc. J Case No. 5 of 1985. Sri Ghosh submits that in view of the amendment to the West Bengal Land Reforms Act, the claim to vicinage became available to the preemptor-opposite party and the claim to preemption under the West Bengal Non-Agricultural Tenancy Act stood barred. In such circumstances, the preemptor-opposite party was entitled to rest his claim to preemption on all the grounds available to him by statute.
16. Arguing that there can be no estoppel against statute Sri Ghosh points out that the basic relief to preemption claimed by the opposite party stood unaltered and the opposite party was entitled under the statutory mandate to place all his claims in a composite preemption application to avoid multiplicity of proceedings. In such view of the matter the Ld. Trial Court committed no error in allowing the amendment and the preemptee-petitioner was given the opportunity to file his additional written objection, if any.
17. Sri Ghosh further points out that the claim to preemption by way of vicinage became available to him only upon amendment to the West Bengal Land Reforms Act and therefore, the plea of limitation raised by Sri Banerjee cannot succeed.
18. In support of his arguments Sri Ghosh relies upon two decisions of this Hon''ble Court. The first is reported in
19. At paragraph 9 the Hon''ble Division Bench further held as follows:-
The Supreme Court in
Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.
In our view, when an application for amendment is made beyond the period of limitation, the Court is to consider whether by refusing such amendment an injustice will be made to the party seeking the amendment and also whether by granting such amendment an injury would be caused to the other side. We may also refer to a Bench decision of this Court consisting of P.N. Mookerjee A.C.J. and A.C. Gupta J. (as he then was) in
20. The second decision relied upon by Sri Ghosh is reported in 1993(2) CHN 149 in the matter of Tarapada Som Vs. Parbati Charan Sarkar where the ratio of the decision in Debrabrata Bhowmick''s case (supra) is noticed and the Court came to a similar conclusion. The Court was of the considered view that when the preemptor filed an application for amendment by introducing an additional ground of vicinage which was opposed as barred on the ground of limitation it is necessary to consider whether the facts and circumstances require amendment and the Court will not be slow to allow such an amendment when refusing such an amendment will cause injustice to the party seeking the amendment, no matter whether the amendment was sought for after the period of limitation. At paragraph 6 the Court held as follows:-
6. Upon a discussion of all the above decision, it is thus quite clear, that it is the settled principle of law in the matter of allowing amendments, that the Court''s power is not circumscribed by the law of limitation, if, in its opinion, the amendment should otherwise be allowed. When an application for amendment is made beyond the period of limitation, the Court is to consider whether by refusing such amendment an injustice will be made to the party seeking the amendment. No doubt, in such a case, the Court is also to consider whether by granting such amendment an injury would be caused to the other side, but if the facts and circumstances of the case require an amendment to be allowed, the Court will not be slow to allow such amendment, no matter, whether the amendment was sought for after the period of limitation.
21. Sri Ghosh also brings on record by way of a supplementary affidavit, with copy served to Sri Banerjee that in respect of two other matters the case of the preemptor as made out in the amendment stood allowed and execution proceedings in respect of the suit property have concluded in favour of the preemptor-opposite party.
22. Sri Banerjee does not dispute the above position of fact as recorded in the supplementary affidavit filed by Sri Ghosh.
23. Heard the parties and considered the materials on record.
24. This Court is of the considered opinion that upon amendment of the West Bengal Land Reforms Act the application of the preemptor u/s 24 of the West Bengal Non-Agricultural Tenancy Act was rendered as not maintainable. The preemptor was therefore entitled to convert his application to an application u/s 8 of the amended West Bengal Land Reforms Act. The ground of vicinage consequentially became available to the preemptor on the conversion of his application to one u/s 8 of the West Bengal Land Reforms Act.
25. This Court is of the further view that once such conversion is allowed and the preemptor is entitled to maintain an application u/s 8 of the amended West Bengal Land Reforms Act, it would result in a grave miscarriage of justice if the reliefs available to the preemptor under the amended statutory provisions are denied to him.
26. This Court is in respectful agreement with the decisions of the Hon''ble Single Bench reported in Tarapada Som''s case (supra) and notices that the ratio of the decision in Debabrata Bhowmick''s case (supra) must be respectfully followed.
27. Both the cases relied upon by Sri Ghosh are found to be apposite to the facts and circumstances of this case. By allowing the amendment the Ld. Trial Court justifiably came to the view that there is no change to the basic nature and character of the claim to preemption and the amendment sought to be made is not mala fide. The preemptor could not have made the amendment earlier which became available to him only upon amendment to the West Bengal Land Reforms Act and the preemptor was entitled to seek all the reliefs available to him under the statute. As noticed by this Court in Debabrata Bhowmick''s case (supra) and in Tarapada Som''s case (supra) in the matter of allowing amendments the power of the Court cannot be considered to be circumscribed by the law of limitation. Sri Ghosh rightly argues that, if at all, the point of limitation may be considered by the Ld. Trial Court at the appropriate stage.
28. For the foregoing reasons the order impugned No. 33 dated 13th November, 1991 passed by the Ld. 1st Munsif at Arambagh in Misc. J. Case No. 5 of 1985 is not interfered with.
29. CO 4218 of 1991 accordingly stands dismissed.
30. Since the Misc. J. Case No. 5 of 1985 is pending for a long period the competent Civil Court, Junior Division now having jurisdiction to hear the matter is directed to dispose of the same within a period of six months from the date of the communication of this order, subject to its calendar, on its own merits and without granting unnecessary adjournment to either of the parties.
31. Before parting with the matter this Court notices that the present civil revisional application being CO 4218 of 1991 was filed u/s 115 of the CPC which clothed this Court then with the jurisdiction to hear the said matters. However, with the amendment in the statute this Court is now restrained from exercising revisional powers u/s 115 of the Code of Civil Procedure.
32. Therefore the present application be treated as one under Article 227 of the Constitution of India in the light of the decision in
33. There will be, however, no order as to costs.
34. Urgent certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.
In the matter of:
CO 2120 of 1992
Sri Debaprasad Ghosh and Ors.
Vs.
Sri Abhoy Pada De
35. The present application arises between the same parties as in CO 4218 of 1991. Both the Ld. Counsel agree that the identical issue as decided by this Court in CO 4218 of 1991 is also involved in this application being CO 2120 of 1992, which throws a challenge to the order impugned No. 79 dated 13th June, 1992 passed by the Ld. 2nd Munsif at Arambagh in Misc. Case No. 58 of 1981 thereby allowing the amendment of the preemption application.
36. The petitioner is the preemptee in the said Misc. Case No. 58 of 1991 and the opposite party is the preemptor therein.
37. On a parity of reasoning the ratio of the judgment and order dated 23rd July 2014 in CO 4218 of 1991 shall apply to the present CO being 2120 of 1992. Accordingly, the order impugned No. 79 dated 13th June 1992 allowing amendment of the preemption application is not interfered with.
38. Let the judgment in CO 4218 of 1991 be treated as a part of this judgment in CO 2120 of 1992.
39. CO 2120 of 1992 accordingly stands dismissed.
In the matter of:
CO 2095 of 1992
Smt. Rebati Bala Ghosh and Anr.
Vs.
Sri Abhoy Pada De
40. The present application arises between the same parties as in CO 4218 of 1991. Both the Ld. Counsel agree that the identical issues decided by this Court in CO 4218 of 1991 is also involved in this application being CO 2095 of 1992 which throws a challenge to the order impugned No. 58 dated 13th June 1992 passed by the Ld. 2nd Munsif at Arambagh in Misc. Case No. 19 of 1982 allowing amendment of the preemption application.
41. The petitioner is the preemptee in the said Misc. No. 19 of 1982 and the present opposite party is the preemptor.
42. On a parity of reasoning the ratio of the judgment and order dated 23rd July 2014 in CO 4218 of 1991 (supra) shall apply to CO 2095 of 1992. Accordingly, the order impugned No. 58 dated 13th June, 1992 passed by the Ld. 2nd Munsif at Arambagh in Misc. Case No. 19 of 1982 allowing amendment of the preemption application is not interfered with.
43. Let the judgment in CO 4218 of 1991(supra) be treated as a part of this judgment in co 2095 of 1992.
44. CO 2095 of 1991 accordingly stands dismissed.
45. There will be however, no order as to costs.
46. Urgent Photostat certified copies of this judgment and order, if applied for, be supplied to the parties upon compliance of all requisite formalities.
