Calcutta High Court (Appellete Side)
For The vs Ila Roy & Others on 24 December, 2013
In the High Court at Calcutta
Civil Revisional Jurisdiction
Present:
The Hon'ble Justice Sahidullah Munshi.
Heard on: 17.12.2013
Judgment on: 24.12.2013
Mr. Anit Kumar Rakshit.
...for the petitioners.
C.O. No. 1851of 2007
Mihirlal Ghosh Dastidar & Another
Versus
Ila Roy & Others.
Sahidullah Munshi, J.: This is a revisional application at the
instance of proforma Opposite Parties Nos.3 and 4 in the pre-
emption application, and they have challenged Order No.71 dated
April 21, 2007, passed by the learned Civil Judge (Junior Division)
Second Court, Serampore, in Pre-emption Miscellaneous Case
No.100 of 1986. By the Order impugned the learned Judge has
rejected petitioners' application under Order 1 Rule 10(2) read with
Section 151 of the Code of Civil Procedure seeking for their
transposition in the category of petitioners in the Pre-emption
Application.
Order dated 26th July, 2007 reveals that Mr. Amlan Mukherjee
entered appearance for Opposite Party No.1, the Principal Opposite
Party, who is not present even at the second call. Mr. Anit Kumar
Rakshit appearing in support of the revisional application submits
that the matter is ready as regards service. He further submits that
Gosailal Ghosh Dastidar, the applicant for pre-emption died and in
his place Opposite Parties Nos.2, 3 and 4 were substituted.
Proforma Opposite Party No.5 in the revisional application is the
Opposite Party No.2 in the Miscellaneous Case pending before the
learned Court below. The said substituted Opposite Parties Nos.2
and 3 also died and their death have been duly recorded by Order of
this Court.
Mr. Rakshit appearing in support of the Civil Revisional
Application submits that the predecessor of the Opposite Parties
Nos.2 to 4 herein, namely, Gosailal Ghosh Dastidar filed an
application initially under Section 24 of the West Bengal Non-
agricultural Tenancy Act and prayed for pre-emption of the
disputed land described in the Schedule to the pre-emption
application, in the Court of the learned Munsif, Second Court,
Serampore. An application for amendment was made and the
application under Section 24 of the Non-agricultural Tenancy Act
was allowed to be converted into one under Section 8 of the West
Bengal Land Reforms Act, 1955. Such application for amendment
was filed by the petitioner in the pre-emption case in 2002. The pre-
emption application did not really proceed before 2002 until the
amendment was allowed converting the application under Section
24 of the Non-agricultural Tenancy Act into one under Section 8 of
the West Bengal Land Reforms Act, 1955.
It is the case of the petitioner in the pre-emption application
that one Gangadhar Ghosh and his brother, Tarapada Ghosh, both
sons of late Prafulla Chandra Ghosh, were the owners in the moiety
share of the non-agricultural property recorded under Plot No.1526
(tank) and 152/1770 (bastu) with pacca structure and the annual
rent of the suit property is Rs.36.75 paise in Dakhalkar right, but
the same has not been sub-divided. The suit property situates
within the municipal limit of Baidyabati Municipality and has been
recorded as joint property of both the two brothers Gangadhar and
Tarapada under Municipal Holding No.50 of Mohalla N.C.
Mukherjee Road within Ward No.8 of Baidyabati Municipality. It is
stated that the pre-emptor has been a monthly tenant of the
premises for a long time, under the landlords Gangadhar and his
brother Tarapada Ghosh. The pre-emptor came to know that the
absentee landlords were desirous of selling the suit premises and
that both the brothers agreed to sell their undivided 16 annas share
in the suit holding.
At first Tarapada Ghosh sold his undivided moiety share to the
pre-emptor who is the predecessor of the Opposite Parties Nos.2 to
4. Such sale was made on 25th July, 1983 for a sum of Rs.10,000/-
(ten thousand) by a registered sale deed. It is the case of the
petitioner that although pre-emptor alone purchased and paid the
entire consideration money yet out of love and affection for his
younger brothers Mihirlal Ghosh Dastidar and Kishanlal Ghosh
Dastidar, were also incorporated in the deed of transfer as
purchaser. The said Mihirlal Ghosh Dastidar and Kishanlal Ghosh
Dastidar are the present petitioners in the present revisional
application. The said Mihirlal Ghosh Dastidar and Kishanlal Ghosh
Dastidar being named in the deed of transfer, were also impleaded
as proforma Opposite Parties Nos. 3 and 4 in the pre-emption
application. It has been further contended in the pre-emption
application that at no point of time the non-agricultural lands and
tenancy in the structures and municipal holding had been
partitioned and this remained a joint property. It is contended that
Gangadhar Ghosh, the vendor/Opposite Party No.2 in the Misc.
Case had sold undivided 1/4th share out of his undivided half share
to the pre-emptee/Principal Opposite Party No.1 on August 17,
1984. It is the case of the pre-emptor that the Opposite Party No.1
in the pre-emption application is a stranger purchaser and,
therefore, the pre-emptor, namely, the predecessor of the Opposite
Parties Nos.2 to 4 in this revisional application is entitled to pre-
empt the sale deed dated August 17, 1984 and for the said purpose,
the pre-emption application was filed which was numbered as
P.M.C. No.100 of 1986 which is now pending before the learned
Civil Judge (Junior Division) Second Court, Serampore.
In the aforesaid pending Misc. Case being P.M.C. No.100 of
1986, the proforma Opposite Parties Nos.3 and 4/petitioners in this
revisional application filed an application for their transposition in
the category of petitioner in the pre-emption application. Such
application has been annexed to the revisional application.
In the said application, the proforma Opposite Parties Nos. 4
and 5 contended that at the time when the pre-emption application
was filed they were not present rather they were out of station and
for that reason they were made proforma Opposite Parties. They
submit that they have also a good cause to pray for pre-emption
with the petitioner in the pre-emption case.
The said application was taken up for consideration by the
learned Court below and by the Order impugned, the Court below
has rejected the said application under Order 1 Rule 10(2) read with
Section 151 of the Code of Civil Procedure on contest. The learned
Judge has rejected the application holding, inter alia, that the
application under consideration has been filed after long 20 years.
It has been also held that consideration and compensation money
was paid by the petitioner and not by the said proforma Opposite
Parties Nos.3 and 4. The learned Judge has also held that a co-
sharer can lodge his claim within a prescribed period and even
amongst the co-sharer, who lodged his claim for the first time,
would get the benefit for his claim in exclusion of others. The
learned Judge has opined that by such transposition of parties the
right, if any, incurred by the Opposite Party No.1 would be lost.
After going through the revisional application, the application
for transposition of parties being Annexure A to the revisional
application and the Order impugned, it appears that the claim of
the proforma Opposite Parties Nos.3 and 4, being the revision
petitioners herein, was never opposed by the Pre-emption petitioner.
The present petitioners were already on record as proforma
Opposite Parties and if the pre-emptor does not make any objection
for joining proforma Opposite Parties Nos. 3 and 4 as pre-
emptors/petitioners, the learned Court below was wrong in holding
that the interest of the Opposite Party No.1 in the pre-emption case
would be lost. Addition of a party either as defendant or as a
plaintiff does not, ipso facto, nullify the claim of either of the
parties; such addition is made subject to any plea that may be
taken at the final hearing of the pre-emption case.
As regards the question of delay in filing the application, it
does not appear that a co-sharer, being very much on record as a
proforma Opposite Party, can lose his right to make a claim for
being added as the pre-emptor particularly when the original pre-
emptor does not make any objection for such transposition under
Order 1 Rule 10(2) of the Code of Civil Procedure.
Learned Judge has held that by such addition the right of the
Opposite Party No.1, in the pre-emption case, would be lost, is,
however, not based on any sound reasoning. Her right cannot be
affected because of the addition of the proforma Opposite Parties
Nos.3 and 4/petitioners with the pre-emptor. Previously the pre-
emptor wanted to pre-empt alone, now will be pre-empted with the
proforma Opposite Parties Nos.3 and 4 and, therefore, the finding
arrived at by the Court below is not correct and the views taken are
erroneous in nature.
Provisions of Order 1 Rule 10(2) of the Code of Civil Procedure
give a very wide discretion to the Court to deal with any such
situation which may result to prejudicing the interest of affected
party if not impleaded in a proceeding or suit. The important aspect
which should be looked into by a Court while dealing with an
application under Order 1 Rule 10(2) is to avoid multiplicity of
litigations and also conflicting decisions being passed in different
suits which could only be safeguarded by allowing a necessary
party to be impleaded in the suit.
In the present case, since the Opposite Parties Nos.3 and 4
were already on record, in my view, justice will not be sub-served if
at a subsequent stage of the proceeding their application for
transposition is turned down. Those apart, addition of party or
transposition of defendants into the category of plaintiffs does not
mean addition of new cause of action and widening of particular
issue; the transposition and/or addition should be considered
leniently but subject to all objections that may be taken by the
contesting parties.
In view of the above observation, the Order impugned being
Order No.71 dated 21st April, 2007, passed by the learned Civil
Judge (Junior Division) Second Court, Serampore, in pre-emption
Misc. Case No.100 of 1986, cannot be sustained and, accordingly,
the same is set aside. The application under Order 1 Rule 10(2)
read with Section 151 of the Code of Civil Procedure filed by the
proforma Opposite Parties Nos.3 and 4 in the pre-emption case,
stands allowed. The revisional application is also allowed. But, in
the facts and circumstances, there will be no Order as to costs.
Mr. Rakshit has supplied a copy of the amendment application filed
by the petitioners in the Court below, the same may be kept with
the record.
Since 1986 the matter is pending before the Court below, the Court
below is directed to take all steps to dispose of the matter as
expeditiously as possible.
Sahidullah Munshi, J.
