Calcutta High Court (Appellete Side)
Molu Ali Saha @ Maishu Ali Saha vs Sri Bimal Kumar Dinda & Ors on 21 June, 2012
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
Form No.J(2) IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
C.O. No. 2810 of 2007
Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Molu Ali Saha @ Maishu Ali Saha.
Versus
Sri Bimal Kumar Dinda & ors.
For the petitioner: Mr. P.B. Sahu,
Mr. Amit Baran Dash.
For the opposite parties: Mr. K.K. Bera,
Mr. Krishnendu Bera.
Heard On: 04.06.2012 & 11.06.2012.
Judgement On: June 21, 2012.
Prasenjit Mandal, J.: Challenge is to the Order No.212 dated July 6, 2007 passed by the learned Civil Judge (Junior Division), 1st Additional Court, Contai in Misc. Case No.27 of 2007 thereby rejecting an application for amendment of the application under Section 8 of the W.B.L.R. Act and also rejecting another application under Order 1 Rule 10 of the C.P.C.
The petitioner herein is the pre-emptor of the application under Section 8 of the W.B.L.R. Act. He filed the application for pre-emption being Misc. Case No.27 of 2007 against the pre- emptees. The pre-emptees are contesting the said misc. case and the misc. case was at the stage of peremptory hearing when the application for amendment of the misc. case and another application for addition of parties were filed. Those prayers were rejected by the impugned order. Being aggrieved by such orders, the pre-emptor has preferred this application.
Now, the question is whether the learned Trial Judge is justified in rejecting the prayers of the pre-emptor.
Having considered the submissions of the learned Advocates of both the sides and on perusal of the materials on record, I find that the pre-emptor has sought for pre-emption against the pre- emptees in respect of a registered sale deed dated May 18, 1984. The said misc. case for pre-emption was filed in the year 1991 and since then the same is still pending for decision. After major change of the W.B.L.R. Act in 2000, the pre-emptor amended the misc. case incorporating the ground of being a co-sharer in respect of the land in case for pre-emption. Thereafter, the matter came up for peremptory hearing again when the applications for amendment and addition of parties as referred to above have been filed.
So far as amendment is concerned by the proposed amendment, I find that the plaintiff has contended that the proposed amendment is related to subsequent event which transpired from the additional written statement filed by the opposite parties in the pre-emption proceeding. It may be noted herein that, by an order dated November 28, 2006 in C.O. No.2880 of 2006, this Hon'ble Court directed the opposite parties to file an additional written statement to deal with the allegations incorporated by way of amendment of the misc. case earlier. Accordingly, the application for amendment appearing as Annexure-'G' at page no.45 has been filed which lays down certain formal amendment, such as, adjacent possessor and co-sharer etc. and that the main amendment has been recorded in paragraph no.2 appearing as page no.46 which lays down that the vendor of the petitioner colluded with other opposite parties and brought a suit being Title Suit No.78 of 1993 and thus, got an ex parte decree by practising fraud and misrepresentation. So, the said contention should be incorporated.
It may be noted herein that previously the application under Section 8 of the said Act was on the ground of vicinity and by the amendment as noted earlier, the plaintiff had incorporated the ground of pre-emption as co-sharership. So, I am of the opinion that the amendment as sought for in paragraph no.1 is not at all necessary.
So far as the contention in paragraph no.2 is concerned, I am of the view that if the plaintiff succeeds, he would get the right, title and interest in the property already transferred by his vendor in favour of the third party. The pre-emption right is a weak right and it has very limited scope as per provisions of Section 8 of the said Act and there is no scope of considering whether fraud and misrepresentation had been practised in respect of the suit being Title Suit No.78 of 1993 filed by the vendor against other opposite parties.
Moreover, since the suit was filed in the year 1993 and the plaintiff obtained the certified copy of the said decree in the year 1996, such belated application for amendment cannot be considered at all. Again the question of title or other considerations save the clauses as noted in Section 8 of the said Act cannot be considered at all within the domain of Section 8 of the Act.
Mr. P.B. Sahu appearing on behalf of the petitioner has referred to the decision of Sribas Chandra Biswas & ors. v. Jiban Krishna Biswas reported in 2012(2) WBLR (Cal) 245 and submits that this Bench pased an order in details as to the right of a co- sharer of a raiyat and pre-emption application. This decision does not seem to be applicable in the instant case.
With due respect to Mr. Sahu, I am of the view that the said decision passed by this Bench deals with the definition of raiyat and co-sharer of a raiyat in a plot of land. But the main fact is as to the impact of Section 30 of the West Bengal Land Reforms (Amendment) Act with relation to Sections 8, 14 & 14M and also the limitation in respect of non-notified co-sharer. Therefore, I am of the view that this decision is not applicable.
On the other hand, Mr. K.K. Bera appearing on behalf of the opposite parties has referred to the decision of J. Samuel & ors. v. Gattu Mahesh & ors. reported in (2012)2 WBLR (SC) 350 and submits that in granting amendment it should be considered whether the applicant has shown that in spite of due diligence, such amendment could not be sought for earlier.
With due respect to Mr. Bera, I am of the view that this decision also will not be applicable in the instant case because the pre-emption proceeding was filed in the year 1991.
Having considered the above situation and the decisions, I am of the view that these belated applications, in my opinion, have been filed for dragging the matter for an unending period. The unnecessary amendment should not be allowed at the belated stage. Even such amendment was not sought for at the earlier stage when previously, the petitioner sought for amendment by his application dated January 21, 2005, though he had obtained the certified copy of the decree of Title Suit No.78 of 1993 on December 13, 1996. Accordingly, I am of the view that the learned Trial Judge has rightly rejected the application for amendment of the pre-emption proceeding.
So far as the addition of party is concerned, I find that in a pre-emption proceeding, the pre-emptee or his successors are the necessary parties to the proceeding. Even the vendor may not be a necessary party. By the application for addition of party, the petitioner has wanted to incorporate the heirs of Sadhu Ali, the vendor of the deed in question.
It may be noted herein that the vendor died on December 27, 2006 and the decree in Title Suit No.78 of 1993 was passed on November 16, 1994. The petitioner is not required to seek for any relief against the heirs of the vendor in the proceeding for pre- emption. Accordingly, I am of the view that the learned Trial Judge has rightly recorded that the heirs of the vendor are neither necessary parties nor proper parties even in the pre- emption proceeding. So, I am of the view that the application under Order 1 Rule 10 of the C.P.C. has been rightly rejected.
In that view of the matter, I am of the opinion that there is no scope of interference with the impugned order at all.
This application is totally devoid of merits and is, therefore, dismissed.
Considering the circumstances, there will be no order as to costs.
However, since the pre-emption proceeding is a very old one, the learned Trial Judge is directed to dispose of the same within three months from the date of communication of this order to him.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)