Calcutta High Court (Appellete Side)
Smt. Sovana Dey vs Sri Tapaban Dey on 3 August, 2021
95&96 03.08.2021
TN CO No. 2742 of 2007 With CO No.2072 of 2007 Smt. Sovana Dey Vs. Sri Tapaban Dey (Via video conference) Mr. Partha Sarathi Bhattacharyya, Mr. Raju Bhattacharyya, Mr. Tanweer J. Mondal .... for the petitioner Mr. Saptarshi Kumar Mal, Mr. Suprabhat Bhattacharyya, Mr. Aniruddha Chatterjee, Ms. Sangeeta Roy .... for the opposite party Re: CO No.2742 of 2007 The present application under Article 227 of the Constitution of India has been filed against an order whereby the revisional court below dismissed the petitioner's revisional application under Section 115A of the Code of Civil Procedure (for short "the Code") on the ground that the same was not maintainable. In view of such finding, naturally, any other observations made in the said order were tentative in nature and cannot be binding on the parties. 2 However, it appears that the revision under Section 115A arose out of an order passed by the appellate court affirming the dismissal of an application under Section 8 of the West Bengal Land Reforms Act, 1955.
It is well-settled that a preemption application under the said provision has the trappings of a civil suit and it has been held by co-ordinate Benches of this Court that, on such principle, Section 5 of the Limitation Act is not applicable thereto.
In such view of the matter, the order of the appellate court, if passed in favour of the petitioner, would have finally decided the preemption proceeding, which is in the nature of a suit.
Hence, the yardsticks of Section 115A of the Code are satisfied.
Hence, the revisional court below refused to exercise jurisdiction vested in it by law in passing the impugned order.
Accordingly, CO No.2742 of 2007 is allowed upon hearing both sides, thereby setting aside the impugned order dated March 21, 2007 passed in Civil Revision Case No.7 of 2005 and remanding the matter to the revisional court below for re-hearing of the said revisional application on merits, upon granting opportunity of hearing to both sides. 3 Re: CO No.2072 of 2007
In view of the disposal of CO No.2742 of 2007, the present revisional application, which was filed against the same order of the appellate court as in CO 2742 of 2007, for abundant caution, is rendered infructuous and, hence, is dismissed.
There will be no order as to costs. Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)