Calcutta High Court (Appellete Side)
Sri Krishnadas Mitra vs Sri Barid Kumar Mitra Alias on 13 September, 2019
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422,ML,Ct.21.
13.09.2019
AJ.
C.O. 1393 of 2017 Sri Krishnadas Mitra
-Vs-
Sri Barid Kumar Mitra alias Barid Baran Mitra & Ors.
Mr. Partha Pratim Roy, Mr. Chittapriya Ghosh, Mr. Samir Kumar Adhikari, Ms. Priyanaka Saha.
... for the petitioner.
Mr. Kartick Chandra Bhattacharya, Ms. Soumashree Dutta.
......for the opposite parties.
The preemptee, in a proceeding under Section 8 of the Land Reforms Act, 1955, is the petitioner of the present revisional application under Article 227 of the Constitution of India.
The application for preemption was dismissed by the learned Trial Judge on the ground that it is hit by the doctrine of partial preemption.
The preemptors preferred the connected appeal being Miscellaneous Appeal No. 24 of 2013 which is pending before the 4th Court of the learned Additional District Judge, Suri, Birbhum.
The preemptors in the said appeal filed an application seeking amendment of the application for preemption which has been allowed by the order impugned.
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The learned Trial Judge dismissed the said application for preemption due to non-inclusion of all the properties transferred under the impugned deed of transfer in the said application, holding that it is barred by doctrine of partial preemption.
The preemptors by the proposed amendment are seeking to include the said left out properties in the application for preemption.
The preemptee/petitioner is objecting to the said prayer of the preemptors on the ground that the said prayer in respect of the said left out property is barred by limitation as such proposed amendment cannot be allowed.
The bar of limitation to allow amendment of pleadings is not an absolute bar.
The prayer of the preemptors to preempt the disputed sale in respect of the property sought to be added by the proposed amendment in the application for preemption whether is barred by limitation or not shall be decided in the appeal.
The revisional application being C.O. 1393 of 2017 is, therefore, disposed of by directing the learned Judge of the appeal Court below to dispose of the said appeal taking into consideration of the said objection of the preemptee on the said point of limitation.
Mr. Ghosh, learned advocate appearing on behalf of the petitioner expresses his apprehension that the observations made in the order impugned may cause prejudice to his client at the time of final disposal of the appeal. 3
The said apprehension of Mr. Ghosh has no basis as the observations made by the learned Judge of the appeal Court below in the order impugned are all tentative observations being made while disposing an interlocutory application filed in the appeal, cannot bind the appeal Court below at the time of final disposal of the said appeal.
With the above, C.O.1393 of 2017 is disposed of. No order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Biswajit Basu, J.)