Calcutta High Court
Serish Maji vs Nishit Kumar Dolui on 1 March, 1999
Equivalent citations: (2000)2CALLT125(HC)
Author: R. Pal
Bench: Ruma Pal
JUDGMENT R. Pal, J.
1. The application before us applied to enforce his right of preemption as a continuous owner under section 8 of the West Bengal Land Reforms Act, 1955. His prayer was rejected by the Munsiff by an order dated 26th January, 1996 on the ground that the claim was barred by limitation and that section 5 of the Limitation Act, 1963 did not apply. The applicant challenged this decision by way of a revisional application. The learned single Judge found that there was a conflict of views on the question whether the provisions of section 5 of the Limitation Act, 1963 apply to proceedings under section 8 of the West Bengal Land Reforms Act, 1955 (referred to as the WBLRA). The matter was referred to a Larger Bench. This Bench has been constituted to resolve the apparent conflict of judicial opinion.
2. The two contrary decisions are Chandra Sekhar Sarkar v. Baidyanath Chosh : where Guha-J took the view that section 5 applied to applications under section 8 of the WBLRA and Minor Subir Ranjan Mandal v. Sttanath Mukherjee: (1994) 1 CLJ 106 where T. Chatterjee-J held that section 5 of the Limitation Act did not apply to applications under section 8 of the WBLRA.
3. Chatterjee J. distinguished the view of Guha J. in Chandra Sekhar Sarkar v. Baidyanath Chosh (supra) on the ground that Guha J. had not considered the view of the Supreme Court in Hukumdev Narayan Yadav v. Lalit Narayan Mishra : nor the scheme of the Act nor the provisions of section 29(2) of the Limitation Act. Chatterjee J. also said that Guha J had overlooked the decision of Chittatosh Mukherjee J. (as His Lordship then was) in Sm. Ashalata Balrogya v. Gopal Chandra Chakraborty : 1975(1) CLJ 494 in which it has been held that the statutory right under section 8 had to be exercised strictly in accordance with the provisions of section 8.
4. In addition Chatterjee-J held that an "application" under section 8 cannot be considered to be an application within section 5 of the Limitation Act. According to Chatterjee-J the application under section 8 must be considered to be in the nature of a plaint field in a suit. In coming to this conclusion the learned Judge noted that by the presentation of the application under section 8 an "original proceeding" was started before the Munslff Just as a plaint initiated proceedings in a suit. He held that the word 'suit" used in the Limitation Act should be given a wider meaning ;.o as to include a claim for preemption in whatsoever form it is presented to Court either by plaint or otherwise, whenever a proceeding before the Court commences. Chatterjee-J noted that the Munsiff was clothed with the Special Jurisdiction and exercised powers as a Court. He-was conferred with the powers of the Code of Civil Procedure and he also adjudicates the claims finally for preemption and his Judgment is enforceable by way of filing an application for execution. The several decisions relied upon by the preemptor were distinguished on the ground that the decisions-dealt with different provisions of different Acts and did not consider whether the application for preemption under section 8 of the WBLRA filed before a Munslff was in the nature of a plaint filed in a suit. On this ground also Chatterjee-J held section 5 of the Limitation Act would not be applicable.
5. The learned Judge justified his view denying the benefit of section 5 of the Limitation Act to section 8 of the WBLRA by stating that the right of preemption had been held by the Supreme Court in Bishen Singh and Ors. v. Khazan Singh & Anr. : ; Radhakishan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi: to be a very weak right and that it could be defeated by all legitimate methods including the ground of limitation. Chatterjee-J accordingly dismissed the several revision applications which had been tiled before him as the applications under section 8 of the WBLRA had been made by the preemptors beyond the period of limitation prescribed in section 8 of the WBLRA therefor. However, the submission that the Limitation Act was inapplicable because the WBLRA was a complete Code was rejected by Chatterjee J. The learned Judge said that because some of the provisions of the WBLRA incorporated the provisions of section 5 of the Limitation Act. the WBLRA could not be said to be a self contained and complete Code.
6. Chatterjee-J reiterated his views on the question of the applicability of the provisions of the Limitation Act to applications under section 8 in Dasarath Bhunia v. Haripada Bhunia : 1996 (11] CHN 8. The decision of another learned single Judge in Ananda Mohan Khara v. Jaladhar Mondal (1998 WBLR Cal 369) which followed Chatterjee J.'s view in Subir Ranjan Mondal v. Sitanath Mukherjee, we are told, is the subject matter of a special leave petition pending before the Supreme Court.
7. It is debatable whether there is an extant conflict of Judicial opinion on the issue which requires resolution by a larger Bench. That situation normally arises when one decision is delivered without considering the other. Chatterjee J. had considered and distinguished the view expressed by Guha J. in Chandra Sekhar Sarkar v. Baidyanath Ghosh (supra). What we are really called upon to consider is whether Chatterjee J. was correct in so distinguishing the earlier view.
8. Before expressing any opinion in the matter we would like to express out indebtedness and appreciation for the invaluable assistance rendered by the learned counsel appearing for the parties, viz. Mr. Gopal Chandra Mukherjee for the pre-emptor/petitioner and Mr. Pushpendra Blkash Sahu for ihe respondent.
9. The relevant extract of section 8 provides :
"8. Right of purchase by co-sharer or contiguous tenant.--(1) If a portion or share of a holding of a ratyat is transferred to any person other than co-sharer in the holding, the bargadar in the holding may within three months of the date of such transfer, or any co-sharer raiyat of the holding may, within three months of the service of the notice given under subsection (5) of section 5, or any raiyat possessing land adjoining such holding, may, within four months from the date of such transfer, apply to the Munsif having territorial jurisdiction, for transfer of the said portion or share of the holding to him. subject to the limit mentioned in section 14M, on deposit of the consideration money together with a further sum of ten percent of that amount (3) Every application pending before a Revenue Officer at the commencement of section 7 of the West Bengal Land Reforms (Amendment) Act, 1972 shall, on such commencement, stand transferred to and be disposed of by, the Munsif having jurisdiction in relation to the area in which the land is situated and on such transfer every such application shall be dealt with from the stage at which it was so transferred and shall be disposed of in accordance with the provisions of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972."
10. Prior to 15.2.71 an application under section 8 was required to be made to the "Revenue Officer specially empowered by the State Government in this behalf. This phrase was substituted by the phrase "Munsif having territorial jurisdiction" by the WBLR (Amendment) Act, 1972 with effect from 15.2.71.
11. Section 9 of WBLRA provides for the procedure to be followed by the Munsif for disposing of the application of the pre-emptor and also gives the right to any person aggrieved by the order of the Munsif to appeal within 30 days of the order to the District Judge having jurisdiction over the area. There is no discretion granted by sections 8 or 9 on either the Munsif or the District Judge to entertain the application or appeal beyond the period of limitation.
12. Given the provisions, the first question is does section 5 of the Limitation Act in any event apply. The question must be answered with reference to section 29(2) of the limitation Act which provides:
"29. Savings.
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in section 4 to 24 (Inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.
13. Analysed, the section will apply if
(i) The special or local law prescribes a period of limitation; and
(ii) The period of limitation is different from that prescribed in the Schedule to the Limitation Act; and
(iii) The provisions of sections 3, 4-24 are not expressly excluded by the special or local law."
14. In this case section 8 of WBLRA fulfils conditions (I) and (II). But this is not enough. In determining whether and to what extent section 8 of the WBLRA excludes the application of the Limitation Act, it is necessary to resolve what the words "expressly exclude" mean.
15. Despite the use of the word "expressly", none of the cases cited required that the special or local law must in terms state that the Limitation Act is excluded. Proceeding to consider the decisions cited chronologically, the earliest is Hukumdev Narain Yadau v. Lalit Narain Mishra : where it was said :
"If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act In our view, even in a case where the special law does not exclude the provisions of sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation."
16. This decision was followed in Hari Shankar Trapathi v. Shiv Harsh : as also in Anwart Basavaraj Patil v. Siddaramalah : and accepted as settled law in Simhadri Satya Narayan Rao v. M. Budda Prasad : 1994 Supp(1) SCC 449.
17. In Mangu Ram v. Delhi Municipality : cited by the appellant, it was held that :
"Mere provision of a period of limitation in howsoever preemptory or imperative language is not sufficient to displace the applicability of section 5."
18. The observation does not help the applicant. it assumes that an imperative provision coupled with other factors might be sufficient to exclude the applicability of the Limitation Act. Ultimately it would be a question of interpretation of the special or local law in question.
19. Thus in Mukri Gopalan v. C.P. Aboobacker : the Supreme Court considered the legislative history of section 18 of the Kerala Building (Leasing and Rent Control) Act, 1965 to construe whether the appellate authority constituted thereunder has the power to condone the delay in filing of the appeal before it under that section. The Supreme Court noted that the Rent Act of 1965 was preceded by the Rent Act of 1959. The 1959 Act contained a provision expressly stating that the provisions of section 5 of the Indian Limitation Act, 1908 would apply to all proceedings under the Act. According to the Supreme Court, this was necessary because section 29(2) of the Indian Limitation Act. 1908 did not include section 5 as one of the provisions to be applied to special or local laws. In the Limitation Act, 1963, section 5 has been included in section 29(2) as one of the provisions which would apply to special and local laws. Therefore when the Rent Act of 1965 was enacted it was not necessary to include an express provision incorporating the provisions of section 5 of the Limitation Act, because by virtue of section 29(2) the provisions of section 5 would get automatically attracted.
20. In Rathinasamy v. Kamalavalli: AIR 1983 Madras 4 the provisions of the Limitation Act were held to be applicable to appeals under the Rent Act because there is no provision in the section dealing with appeals excluding the application of section 5 of the Limitation Act "just as there is a specific exclusion in section 25" (which deals with revision petitions).
21. The words "specific exclusion" referred to in section 25 were in fact an implied exclusion. This is clear from the following passage of the judgment :
"Therefore, section 5 of the Limitation Act cannot be invoked to a revision petition filed in the High Court under section 25 of the Act 18 of 1960, because the said application of section 5 fs implledly excluded by prescribing a special period of extension of time for limitation."
22. Incidentally, the Supreme Court in Mukri Gopalan's case approved the view held by the Madras High Court.
23. In Chandra Sekhar Sarkar v. Baidyanath Ghosh (supra) Guha-J relied on the decision of the Supreme Court in Mangu Ram v. Municipal Corporation of Delhi : to hold that section 29 sub-section 2 of the Limitation Act, 1963 made the provisions of the 1963 Act applicable to the 1955 Act in the absence of any express exclusion in the 1955 Act of the provisions of the 1963 Act. Guha J. misconstrued the decision of the Supreme Court in Mangu Ram v. Delhi Municipality. He appears to have wrongly assumed that the case was an authority for the proposition that the words "expressly excluded" in section 29(2) of the Limitation Act were to be construed literally. The authorities have clearly held that the words include exclusion by necessary implication.
24. Chatterjee J. on the other hand in taking a contrary view in Minor Subir Ranjan Mondal v. Sitanath Mukherjee (supra) relied upon the decision in Hukumdev Narayan Yadav v. Lalit Narain Mishra: and held that even though there were no words in section 8 expressly excluding section 5 of the Limitation Act, nevertheless having regard to the fact that other sections of the WBLRA expressly referred to the application of section 5 of the Limitation Act, and taking into consideration the fact that the legislature had not included any reference to section 5 while amending section 8, he held that the operation of section 5 of the Limitation Act had been "expressly excluded" by necessary implication.
25. According to Chatterjee J. the history behind the enactment of section 8 of the WBLRA also showed the application of section 5 of the Limitation Act was excluded. He noted that previously applications for preemption had to be made before the Revenue Officer. Courts had then consistently held that there was no question of application of section 5 of the Limitation Act to proceedings for preemption under section 8. Section 8 was amended and the forum was changed from a Revenue Officer to a Munsiff. Despite this the Legislature did not set at naught the earlier decisions by expressly making applicable the provisions of section 5 of the Limitation Act to proceedings under section 8 before the Munsiff.
26. We see no reason to differ from the view taken by Chatterjee J. The scheme of the WBLRA clearly shows that the right of preemption must be exercised within the time specified in the section as noted by Chatterjee J. The provisions of section 5 of the Limitation Act, 1963 have been made expressly applicable to appeals under section 14H and appeals preferred under section 19 of the WBLRA. Other provisions have incorporated the principles of section 5 by words "within such further time as the appellate authority may, on sufficient cause being shown, allow" (see for example section 140). Section 51A deals with the preparation of the record of rights by the Revenue Officer. The Revenue Officer also has the power to dispose of an application for revisions of the Record of Rights. Section 51A gives the power of appeal from an order passed by the Revenue Officer disposing of an application for revision, to a prescribed authority. Rule 26 of the West Bengal Land Reforms Rules, 1965 provides that every appeal under section 51A must be preferred within one month from the date of passing of the order appealed against.
"provided that an appeal may be admitted after the said period if the appellant satisfies the Additional District Magistrate of the District in which the land is situate that he had sufficient reasons for not preferring the appeal within the said period."
27. The fact that section 5 or its principles have been specifically incorporated in these various sections and their omission from section 8 appears to be deliberate evidencing the intention of the legislature not to grant an applicant under section 8 a similar benefit. By this omission in section 8 it would appear that the sections of the Limitation Act have been expressly excluded within the meaning of section 29(2) of the Limitation Act.
28. It is also noteworthy that in the preamble to the WBLRA it is said to be :
"An act to reform the law relating to land tenure consequent on the vesting of all estates and of certain rights therein and also to consolidate the law relating to reforms in the State."
29. Section 3 of the WBLRA also provides :
"3. Act to override other laws.--The provisions of this act shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force or in any custom or usage or contract, express or implied, or agreement or decree or order or decision or award of a court, tribunal or other authority."
30. In the case of such a statute amending and consolidating a particular branch of the law the Supreme Court in Prof. Sumer Chand v. Union of India has held that the Limitation Act being a general enactment governing the law of limitation must give way to the special enactment.
31. According to the applicant it was necessary to incorporate the provisions of section 5 specifically to sections 14H, 14O. 19 and 51A because these sections dealt with proceedings before the Revenue Officer and the prescribed authority who were not Courts. It was said that being so the Limitation Act did not apply. It is contended that subsequent to the 1971 amendment to the WBLRA, there was a change of forum. Applications under section 8 and appeals under section 9 were both to be heard and disposed of by Courts (See : Paresh Nath Mondal v. Btjan Behari Mondal: 1932(2) CLJ 33; Beharilal Santta v. Bishnupada Pattanoyak : 79 CWN 103; Balaram Tiwari v. Secretary, Department of Education, State of West Bengal: 81 CWN 586 (DB); Kaltdast Nath v. Obedullah Sheikh : 81 CWN 866(DB); Smr. Karuna Sardar v. Sri Gopal Sardar : 1997(1) CLJ 289) and therefore it was not necessary to provide separately for the application of section 5.
32. The distinction sought to be drawn does not correctly reflect the facts. Even when applications under section 8 and appeals under section 9 were to be heard by a revenue Officer or authority prescribed by the Government, the legislature had not included the provisions of section 5 to applications under section 8. The legislature had drawn a distinction even then between proceedings under section 8 and other proceedings before the Revenue Officer. This fact alone would be sufficient to indicate the intention of the legislature to treat applications under section 8 in a different category. That is why in construing section 8 as it stood prior to its amendment the Division Bench in Smt. Ashalata Bairagya v. Gopal Chandra Chakraborty :
1975 (1) CLJ 494, 497 said :
"The right conferred under section 8 is a statutory right and therefore, it has to be exercised strictly in accordance with the provisions of section 8 and obviously no question of equity arise."
33. Assuming that the provisions of the Limitation Act do apply to applications for preemption under section 8, the question still remains whether section 5 of the Limitation Act applies to proceeding under section 8 of the WBLRA. Section 5 of the Limitation Act does not apply to suits. It only applies to appeals and applications. It is true that the word used in section 8 of the WBLRA is "application" nevertheless it is to be seen whether the word as used in the WBLRA has been used in the same sense in the Limitation Act. As held in Utkal Contractors & Joinery Pvt. Ltd. v. State of Orissa & Ors. : AIR 1987 SC 1453 at 1459 "No provision in the statute and no word of the statute may be construed in isolation. Every provision and every word must be looked at generally before any provision or word is attempted to be construed".
34. The words "application" and "suit" have been defined in section 2(b) and 2(1) of the Limitation Act as follows :
(b) "application" includes a petition;
(1) "suit" does not include an appeal or an application;
35. Both are judicial proceedings. The word "proceeding" refers not only to a complete remedy but also to a step that is part of a larger action or special proceeding. The definition of the word "proceeding" in Black's Law Dictionary, 5th Edition at page 1083 gives a description of the characteristics of a suit :
"The word may be used synonymously with 'action' or 'suit' to describe the entire course of an action at taw or suit in equity from the issuance of the writ or filing of the complaint until the entry of a final Judgment, or may be used to describe any act done by authority of a court of law and every step required to be taken in any cause by either parry. The proceedings of a suit embrace all matters that occur in its progress Judicially."
36. Following from the definition it may safely be said that there are two broad categories of proceedings; first, a proceeding which is the entire course of action and second, a proceeding which is a step ancillary to or taken in course of the first. A suit is a complete or independent proceeding falling within the first class of proceedings. Applications, according to the Limitation Act, are governed by Article 118 to 137. Characteristically they are in connection with or ancillary to a suit, its decree or execution. They are not, in this sense, an independent or complete proceeding. An application in the sense used in the Limitation Act thus falls within the second class of proceeding.
37. An application under the Limitation Act also does not initiate an action. The sections of the Limitation Act namely, sections 4, 6, 7, 11, 15, 16, 17, 21 and 31 all talk of institution of suits and making of applications. An appeal is preferred. The meaning of the word "Institute" is to begin or originate. Therefore a proceeding under the Limitation Act can be initiated or begun and the machinery of law set in motion only by a suit not by an application.
38. The other distinction between suits and applications which appears from the Limitation Act is that suits primarily decide "issues or causes of action. For example, section 14 of the Limitation Act grants exclusion of time in suits when the same matter is in issue or prosecuted in goods faith in a Court which from defect f Jurisdiction etc. is unable to entertain it. Sub-section (2) of section 14 however allows an exclusion of time in an application, if the applicant has been prosecuting another civil proceeding for the same relief (See S.K. Dutt. v. Punachandra Sinha : AIR 1949 Cal 24, 43 para 57).
39. I would therefore conclude that for the purpose of the Limitation Act a suit may be defined as an independent proceeding which must be initiated for the final determination of an issue or issues of fact or law between the parties.
40. This definition finds support in Black's Law Dictionary, 5th Edition, where "suit" has been defined as :
"Suit. A generic terms, of comprehensive signification, referring to any proceeding by one person or persons against another or others in a Court of justice in which the plaintiff pursues, in such Court, the remedy which the law affords him for the redress of an injury or the enforcement of a right, whether at law or in equity."
41. The words 'application" and "petition" often refer to the form and not to the substance of the proceeding. This interchangeabillty has led to semantic confusion and the substantallve right has been defined with reference to the procedure prescribed for enforcement of the right.
42. The procedure cannot define the right and no distinction can be made between the same substantive rights merely on the basis of the procedure involved. If this were so then by choosing a particular procedure a party could determine the period for enforcing the right.
43. The applicant has however contended that only those proceedings which are initiated by a plaint can be termed to be a suit for the purpose of the Limitation Act. If we were to accept this submission of the applicant we would fall into the semantic trap noted above and also come to a conclusion contrary to the authorities on the point.
44. In construing the word "suit" in section 11 of the Code of Civil Procedure the Supreme Court in Pandurang Ramchandra Mandlik v. Shantibai Ramchandra Ghatge : 1989 Supp (2) SCC 627 said :
"In its comprehensive sense the word 'suit' is understood to apply to any proceeding in a Court of justice by which an individual pursues that remedy which the law affords. The modes of proceedings may be various but that if a right is litigated between parties in a court of Justice the proceeding by which the decision of the court is sought may be a suit."
45. There are several instances where suits re initiated otherwise by filing a plaint. Section 20(2) of the Arbitration Act, 1940 provides that an application to file an arbitration agreement in Court shall be registered and numbered as a suit and the parties are described as plaintiff and defendant respectively. Similarly, matrimonial suits under the Indian Divorce Act, 1869 are originated by filing a petition (Vide Chapter XXXVA of the Original Side Rules of this Court). A testamentary suit is also initiated by an application for grant of probate or letters of administration iVIde Rules 4(1) and 28 of Chapter XXXV of the Original Side Rules of this Court], An Originating Summons suit is initialed by summons supported by an affidavit and is filed and numbered as an ordinary suit (Vide Chapter XIII of the Original Side Rules of this Courl).
46. Even section 26 of the Code of Civil Procedure, 1908 provides that "every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed".
47. It is true that the Privy Council decision in Hansaraj v. Dehradun Mussoarie Electric Tramway Co. Ltd. said :
"The word 'suit' ordinarily means, and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint."
48. The decision was rendered in the context of the Limitation Act, 1908. Besides the observation expressly recognises that a suit in a certain context need not necessarily be instituted by a plaint. It would depend on the context whether the proceeding is a suit or not.
49. This in Balram Singh v. Dudh Nath : AIR 1949 All 100, a Division Bench of the Allahabad High Court held that an application under section 12 of the U.P. Agriculturists Relief Act, 1934 was a suit and that the decision whether the proceedings under the 1934 Act were a suit or not would not depend merely on the fact that the proceeding were initiated by an application.
50. Conversely in considering whether an application for execution was barred under Article 182 of the Limitation Act, 1908, the Supreme Court said that "It may be plausibly argued that the plaint, which makes a request to the Court, is an application".
51. The decisions cited by the appellants viz. Antata Cope v. Sarbo Gohain: ; Pansy Fernandas v. M.F. Queoros: and Msr. Putnbasi Majhlanl v. Shiba Bhue : are not relevant. The first decision was in respect of the applicability of the Court Fees Act, 1970 to proceedings under the Hindu Marriage Act, 1955. in the second and third decision the applicability of the Court Fees Act to the Succession Act, 1925 was considered. The Courts were considering the nature of proceedings for the purpose of levying Court Fees. The context, the object and the language of the Court Fees Act are materially different from the Limitation Act.
52. There is another aspect of the matter. A preemptive right under the Limitation Act, 1963 is one which is enforceable only by way of a suit. Thus section 8 provides:
8. Special exceptions.-Nothing in section 6 or in section 7 applies to suits to enforce rights of preemption, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period of limitation for any suit or application.
53. Article 97 of the Limitation Act provides for the period to enforce a right of pre-emption and is contained in the first division of the schedule to the Limitation Act. 1963 which deals with suits.
54. In fact, a pre-emptive right is ordinarily enforced by way of a suit [Vide : Sk. Mohammed Rafiq v. Khalilul Rehman : : Rampher v. Ayodhya Singh : AIR 1925 Oudh 369: Ramjtlal & Ors. v. Ghisaram & Ors. : ]. it appears from Prem Singh & Ors. v. Joginder Singh & Ors.: that the right of pre-emption under the Punjab Pre-emption Act, 1913 is to be filed by making an application for pre-emption. Significantly holding that the right of preemption in favour of Kingsfolk was unconstitutional in Atamprakash v. State of Haryana: the proceedings have been referred to as suits [See also Ramjilal v. Ghisaram (supra)].
55. The distinction between "suit" and "application" do not appear to have been argued and as such not decided in the Kerala State Electricity Board, Trivandrum v. T.P. Kunhalliumma : when it observed :
"The changed definition of the words 'applicant' and 'application' contained in section 2(a) and 2(b) of the 1963 Limitation Act indicates the object of the Limitation Act to include petitions, original or otherwise, under special laws."
56. The appellant emphasised the use of the word "original" in this sentence. The sentence cannot be construed as a statute [See M/s. Amar Nath Omprakash v. State of Punjab ; : Gasket Radiators Private Limited v. Employees State insurance Corporation : 1985(2) SCC 681. The observation must be read in the context of the issue which was being decided in that case. The only issue was whether Article 137 applied to applications which were not under the Code ofCivl! Procedure. The Supreme Court held that Article 137 was not confined to applications under the Code. This ratio has in fact been followed in several decisions e.g. The Additional Special Land Acquisition Officer v. Thanboredas : .
57. In this background and coming more specifically to proceedings under section 8 of the WBLRA, it is not in dispute that it is an original and independent proceeding initiated before the Munsif which culminates finally in his order. It does not matter that this final order is not called a decree. Merely because civil proceedings before Courts are normally conducted according to the Civil Procedure Code does not mean all civil proceedings must be so conducted or that the terminology of the Code should be seen as defining the nature of proceedings under other statutes. in any event a "decree" according to the Code means :
"the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit."
58. The decision of the Munsif on the right of the applicant to claim preemption subject to appeal under section 9, is final and in that sense is a decree.
59. In fact an application under section 8 was treated as a suit in Debabrata Bhowmick v. Nani Bala Some : 83 CWN 82 (DB). The question whether an additional ground for pre-emption could be introduced in an application under section 8 by way of amendment was resolved with reference to principles governing amendments of causes of actions in suits. Allowing application, it was said :
"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."
60. If section 5 of the Limitation Act were applicable to applications under section 8 the only consideration would have been whether the applicant had sufficient cause for not applying on the additional ground of preemption earlier.
61. It was then said by the applicant that under section 8 every application pending before the Revenue Officer after the commencement of section 7 of the West Bengal Land Reforms Act, 1972 (Amendment Act) stood transferred to and was to be disposed of by the Munslf having Jurisdiction in relation to the are in which the land is situated and on such transfer every such application is to be dealt with from the stage at which it was so transferred and shall be disposed of in accordance with the provisions of the WBLRA, as amended by the West Bengal Land Reforms (Amendment) Act, 1972. it was submitted that it is clear therefore that the application before the Munslf is nothing but the same application or nature of application before the Revenue Officer, otherwise the phrase "from the stage at which it was so transferred" would not have been used. it is said that this clearly proves that the said application under section 8 is not a suit.
62. The submission is misconceived. A proceeding may change its nature with the forum. For example with the creation of Administrative Tribunals under the Administrative Tribunals Act, 1985 all pending proceedings including applications under Article 226 covering matters over which the Tribunals had Jurisdiction were transferred to the Tribunal under section 29 of the Act. The writ proceedings ceased to be applications under Article 226 by such transfer (See: L.Chandra Kumar v. Union of india : ).
63. Indeed it was argued by the appellant himself that the provisions of the Limitation Act now apply to proceedings under section 8 because the Munslf is a Court. As already held civil proceedings before a Court can be a suit or application. That being so, it would follow that section 8 of the WBLRA wilt have to be construed to see which of the provisions of the Limitation Act apply to such proceedings.
For the reasons stated we hold that the view expressed by Chatterjee J in Minor Subir Ranjan Mondal v. Sitanath Mukherjee that section 5 does not apply to proceedings under section 8 of the WBLRA to be a correct view and also hold that the view" held by Guha J. in Chandra Sekhar v. Baidhyanath Ghosh (supra) does not correctly represent the law.
64. Order accordingly