Calcutta High Court (Appellete Side)
Imran Haque Mondal vs Pratima Bhattacharya on 16 May, 2014
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE PRESENT:
The Hon'ble Justice Subrata Talukdar CO 1054 of 1999 With CO 1055 of 1999 Imran Haque Mondal
-Vs.-
Pratima Bhattacharya For the Petitioner : Sri Jiban Ratan Chatterjee;
Sri Biswajit Basu;
Sri Sabyasachi Mukherjee;
Sri Debabrata Sen.
For the Opposite Party : Sri S.N.Jash;
Sri Priyabrata Batabyal
Heard on :
26/03/2014
Judgement on : 16/05/2014
Subrata Talukdar, J.: In the civil revisional applications Order no.42 dated 23rd March, 1999 passed by the ld. 1st Civil Court (Junior Division) at Krishnanagar is under challenge. By the said impugned order the 1st Civil Court (Junior Division) was pleased to record as follows:-
a) That a petition dated 2nd May, 1998 has been filed by the proforma opposite parties no.2 & 3 in preemption Misc. Case no.22 of 1995 for being transposed from the category of proforma opposite parties to that of the petitioners. The prayer made by the said proforma opposite parties to be transposed as petitioners in the said Misc. Case alongwith the existing petitioner for jointly proceeding with the preemption case has been recorded by the 1st Civil Court (Junior Division).
b) It has been recorded that the existing opposite parties in the preemption Misc. Case raised objection by filing a written objection to the effect that the case for preemption was not filed by the proforma opposite parties and hence they have no right to proceed in a cause of action which was originally confined only to the petitioner. It has been further argued by the Ops that a similar petition was rejected earlier by the 1st Civil Court (Junior Division) vide Order no.35 dated 17th January, 1998.
c) The 1st Civil Court (Junior Division) came to the finding that the contention of the ld. Lawyer for the OP of an earlier rejection of such petition is not correct. Although from the materials on record it appears that the proforma OPs went on record expressing their unwillingness to be transposed as petitioners, they have now appeared by filing a fresh Vakalatnama and swearing an affidavit that they are willing to be transposed as petitioners for protecting their interests.
d) Accordingly the 1st Civil Court (Junior Division) was pleased to allow the petition dated 2nd May, 1998 and transpose the proforma OPs 2 & 3 in Misc. (Preemption) Case no.22 of 1995 to the category of petitioners.
Challenging such order Sri Chatterjee, ld. Senior Counsel has placed the 3rd proviso to Section 8 of the West Bengal Land Reforms Act. The said proviso reads as follows:-
"[Provided also] that as amongst raiyats possessing lands [adjoining such plot of land] preference shall be given to the raiyat having the longest common boundary with the land transferred."
Sri Chatterjee further submits that confusion is likely to arise with regard to the prior right of preemption in respect of each of the petitioners, in other words, who shall then have the prior right of preemption.
He takes this Court to the prayer made by the proforma OPs 2 & 3 in their application for transposition filed before the 1st Civil Court (Junior Division). The said application appears at pg.12 of CO 1054 of 1999. The said application is brief and reproduced herein below:-
"That the case being a case U/S 8 of the W.B.L.R. Act for Pre- emption, to avoid unnecessary future trouble and as abundant caution, the petitioner need the Pro O.P. 2 and 3 to transpose as the petitioners in support of which and as consent to this, the Pro-O.Ps .2 and 3 also file separate petition to get themselves transposed to the category of the petitioner from that of Pro-O.Ps. The interest of the Petitioner and Pro-O.Ps.2 and 3 are same and identical. Hence it is prayed that the Pro-O.Ps. 2 and 3 be kindly transposed from the category of Pro-O.Ps. to that of petitioner as Petitioner No.D and E, otherwise petitioner shall suffer."
Sri Chatterjee draws the attention of this Court to the pleading in the said application to the effect that the interest of the petitioner and the proforma Ops 2 and3 are same and identical. Therefore, the said proforma Ops 2 and 3 have submitted that they should be allowed to be transposed to the category of petitioners. In the light of the above pleadings Sri Chatterjee fairly submits that he has no objection if the Court may permit the proforma opposite parties no.2 and 3 to be transposed as joint petitioners in Misc. (Preemption) Case no.22 of 1995. He lays emphasis on the specific pleadings as noted above in the transposition application that the interests of all the parties, viz. the petitioners and the proforma opposite parties 2 and 3 "are same and identical." Sri Chatterjee also brings to the notice of this Court Order dated 29th April, 2005 passed by an Hon'ble Single Bench permitting the present petitioner to convert the applications being CO 1054 of 1999 and CO 1055 of 1999 filed under Section 115 of the unamended Code of Civil Procedure to applications under Article 227 of the Constitution of India.
In view of such conversion Sri Chatterjee submits there is no legal bar to the maintainability of the present proceedings. Sri Chatterjee also submits that in view of the death of the proforma opposite party no.4 during the carriage of the proceedings, the names of his legal heir and representatives have been substituted in the present revisional applications. Sri Jash appearing for the opposite parties raises the preliminary point of maintainability of the present applications under Section 115 of the CPC. He says that in view of the clear bar under the proviso to the unamended Section 115 CPC the present civil revisional applications are not maintainable. Sri Jash further argues that it is for the ld. 1st Civil Court, being the Trial Court, to take a call whether the proforma opposite parties should be added as joint petitioners or petitioners separately. He submits that this Court cannot usurp the jurisdiction of the ld. Trial Court in this regard. Heard the parties. Considered the materials on record. On the point of maintainability of the present civil revisional applications which were originally filed under Section 115 of the Code of Civil Procedure this Court notices that by the Order dated 29th April, 2005 an Hon'ble Single Bench was pleased to allow their conversion to proceeding under Article 227 of the Constitution of India. This Court further notices that by the same Order dated 29th April, 2005 the said Hon'ble Single Bench was pleased to direct the petitioner to file necessary extra court fees within two weeks and the Section Officer of the Rule Section will examine the sufficiency of the court fees before reporting the matter back to the Hon'ble Bench competent to hear the same.
From a perusal of office reports dated 16th May, 2005 it appears that within the said period of two weeks the deficit court fees have not been paid by the petitioner entitling the petitioner to have the benefit of conversion under Article 227 of the Constitution of India. It does not either appear from any of the further reports and orders of this Court that the said necessary extra court fees have been deposited till date by the petitioner. However, neither the petitioner nor Sri Jash has brought to the notice of this Court such deficiency in court fees. It also does not appear to the notice of this Court that the Order dated 29th April, 2005 was challenged by Sri Jash, appearing for the opposite parties.
In the above facts and circumstances this Court is inclined to grant the petitioner the benefit of the Order dated 29th April, 2005 allowing conversion to proceedings under Article 227 of the Constitution of India. However, this Court makes it abundantly clear that this Order shall only take effect on compliance of the undertaking to deposit necessary extra court fees as directed by the Hon'ble Single Bench on the 29th of April, 2005. For this Order to take effect the petitioner is directed to deposit the necessary extra court fees, if not already deposited, within a period of two working days from the date of the delivery of this Order failing which CO 1054 of 1999 and CO 1055 of 1999 shall be held to be not maintainable and treated to be dismissed on that score.
On the point of transposition this Court finds that in their transposition application cited above the proforma opposite parties have pleaded unequivocally that the interest of the petitioner and their interests are "same and identical". In view of such prayer this Court finds substance in Sri Chatterjee's submission that in the event such transposition is allowed the proforma opposite parties 2 and 3 should be transposed as joint petitioners.
This Court is of the further view that Misc. (preemption) Case no.22 of 1995 and Misc. (Pre-emption) Case No.23 of 1995 were filed by the petitioner canvassing his cause of action as preemptor. The proforma opposite parties 2 and 3 did not consider it necessary at any stage to file fresh preemption cases canvassing their individual causes of action before the ld. 1st Civil Court. Furthermore, their prayer for protection of same and identical interest is noticed in the transposition application filed before the ld. 1st Civil Court. For the aforementioned reasons this Court is unable to accept Sri Jash's argument that it is for the ld. Trial Court to determine whether they shall be considered to be joint or individual petitioners. This Court further notices the Order impugned dated 23rd March, 1999 transposing the names of the proforma opposite parties 2 and 3 "to the category of petitioner".
This Court therefore finds it fit to modify the Order impugned of the ld. 1st Civil Court to the extent that the proforma opposite parties 2 and 3 being the present opposite parties no.4 and 5 be transposed as joint petitioners in Misc. (preemption) Case no.22 of 1995 and Misc. (Pre-emption) Case no.23 of 1995 .
This Court also finds that by Order dated 10th March, 2014 the minor petitioner, Imran Haque Mondal has attained majority and has been directed to represent himself by discharging his father acting as natural guardian, Ashan Habib Mondal.
CO 1054 of 1999 with CO 1055 of 1999 are accordingly disposed of. There will be, however, no order as to costs.
Having regard to the long efflux of time since pendency of Misc. (Preemption) Case no. 22 of 1995 and Misc. (pre-emption) Case No. 23 of 1995 this Court finds it fit to direct the ld. 1st Civil Court (Junior Division), Krishnanagar to dispose of both the Misc. (pre-emption) Cases no.22 and 23 of 1995 within a period of six months, subject to its calendar, from the date of communication of this Order without granting unnecessary adjournments to any of the parties. Needless to state the ld. 1st Civil Court shall be free to decide this matter on its own merits.
Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Subrata Talukdar, J)