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Smt. Drupadi Rani Mahati Vs. Purna Ch. Mahapatra - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata High Court
Decided On
Case NumberC.R. No. 3500 of 1978
Judge
Reported inAIR1980Cal158
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 6, Rule 17; ;West Bengal Land Reforms Act, 1956 - Section 8
AppellantSmt. Drupadi Rani Mahati
RespondentPurna Ch. Mahapatra
Appellant AdvocateP.B. Sahu, Adv.
Respondent AdvocateB.K. Panda, Adv.
DispositionApplication succeeds
Excerpt:
- .....petition for pre-emption and that as these words were necessary, the amendment was prayed for. the learned munsif rejected that application for amendment on the ground that fay the proposed amendment the petitioner sought to introduce a new case, different in character, which will demolish the plea taken by the defence, against the said order of rejection the petitioner has come up in revision. the petitioner has relied upon a case reported in (1979) 83 cal wn 62 in support of his submisssion that the amendment would not change the nature and character of the application for pre-emption by adding a new ground, the ground being that he was a co-sharer and claiming as such to pre-empt the land in dispute.3. on the other hand, mr, panda, learned advocate appearing for the opposite parties.....
Judgment:
ORDER

Jyotirmoyee Nag, J.

1. This Rule is directed against an order dated 7-11-78 passed by the learned Munsif, 2nd Court, Midnapore in J. Misc. Case No. 32 of 1975 refusing the prayer of the petitioner for amendment of the plaint.

2. The petitioner had filed an application under Section 8 of the West Bengal Land Reforms Act for pre-empting the transferred lands appertaining to kha-tian Nos. 14 and 46 of mouza Janageriya within Narayangarh Police Station and the said proceeding was registered as J. Misc. Case No. 32 of 1975. The petitioner had purchased some lands appertaining to khatian No. 14, the shares of opposite parties Nos. 10 and 11 by registered sale deed dated 9-6-69 and therebybecame co-sharer of khatian No. 46 and by purchase from Chittaranjan Maity and Basanta Maity by a sale deed dated 13-11-68 became adjoining land owners and as such became entitled to pre-empt the disputed lands. The petitioner filed an application praying for amendment of the pre-emption petition by adding or inserting the following words: 'Co-sharers in the said Jote' which expression had been dropped through inadvertence in the second paragraph of the petition for pre-emption and that as these words were necessary, the amendment was prayed for. The learned Munsif rejected that application for amendment on the ground that fay the proposed amendment the petitioner sought to introduce a new case, different in character, which will demolish the plea taken by the defence, Against the said order of rejection the petitioner has come up in revision. The petitioner has relied upon a case reported in (1979) 83 Cal WN 62 in support of his submisssion that the amendment would not change the nature and character of the application for pre-emption by adding a new ground, the ground being that he was a co-sharer and claiming as such to pre-empt the land in dispute.

3. On the other hand, Mr, Panda, learned Advocate appearing for the opposite parties has submitted that if the proposed amendment is allowed that would not only change the nature and character of the claim made by the petitioner but also it is barred by limitation. He has referred to Section 8 of the West Bengal Land Reforms Act and has pointed out that that section provides that a person may claim pre-emption on two grounds firstly as a co-sharer and secondly on the ground of vicinage. So far as first ground is concerned, the period of limitation prescribed in Section 8 of the West Bengal Land Reforms Act is three months from the date of notice while the period of limitation for pre-emption on the ground of vicinage is four months from the date of sale. Even if it is conceded that no notice was served upon the petitioner as pleaded by him, the period of limitation under Article 18 of the Limitation Act is three years. In any event, the application for amendment is time barred as the application was made on 2-6-78 whereas sale was on 3-5-73 much beyond three years. Mr. P. B. Sahu, learned Advocate appearing for the petitioners has submitted that once the application for pre-emption is filedno matter on which of the two grounds provided in Section 8 of the West Bengal Land Reforms Act, the period of limitation is saved and, therefore, if amendment is prayed for the question of limitation does not arise as only the ground is sought to be introduced by insertion in the petition for pre-emption on the basis of being a co-sharer and in this connection the learned Advocate has relied upon the decision reported in (1979) 83 Cal WN 62. I accept this submission of the learned Advocate and relying upon the decision of this Court reported as aforesaid, I uphold the contention made by the learned Advocate Mr. Sahu. Mr. Panda has referred to the case reported in : AIR1978Cal298 a decision by his Lordship Mr. Justice Sabyasachi Mu-kharji. There his Lordship held that as soon as the cause of action becomes barred by limitation any amendment seeking to amend the cause of action should not be allowed being so barred. The distinguishing feature of the case before me and that referred to by the learned Advocate, Mr. Panda is that here the petition for pre-emption was filed within the period of limitation prescribed by the Land Reforms Act, but a new ground has been sought to be added as observed earlier and that will not be affected by the bar of limitation.

Mr. Panda, thereafter sought to argue that I have no power to revise the order passed by the learned Munsif under Section 115 Civil P. C. I am afraid, I cannot agree with this submission of Mr. Panda inasmuch as the learned Munsif failed to exercise his jurisdiction where he should have by refusing the amendment as prayed for (sic).

4. In the result, this application succeeds.

5. The impugned order of the learned Munsif is set aside.

6. The Rule is made absolute.

7. There will be no order as to costs.


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