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Debabrata Bhowmick Vs. Sm. Nani Bala Some - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 1242 of 1976
Judge
Reported inAIR1978Cal482,83CWN62
ActsWest Bengal Land Reforms Act, 1956 - Section 8; ;Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantDebabrata Bhowmick
RespondentSm. Nani Bala Some
Appellant AdvocateS.P. Roy Chowdhury and ;Ashoke De, Advs.
Respondent AdvocateRanjit Kr. Banerjee and ;Abhijit Banerjee, Advs.
Cases ReferredBisweswar Bajpai v. Jajneswar Bajpai
Excerpt:
- .....for amendment of the application for pre-emption. in the application for preemption, the opposite party claimed that she was a co-sharer and, as such, she was entitled to pre-empt the petitioner. by the application for amendment, the opposite party claimed to pre-empt the petitioner on the ground of vicinage as provided in section 8 of the act. the learned munsif by his order no. 14 dated march 2, 1974 allowed the said application 'subject to the condition that in case of new cause-of-action, this amendment will not save any limitation'. at the final hearing of the application for pre-emption, the learned munsif came to the finding that in view of the decision of the full bench of this court in ma-dan mohan ghosh v. sishu bala atta. : air1972cal502 the opposite party was not a co-sharer.....
Judgment:

M.M. Dutt, J.

1. This Rule, which arises out of an application under Article 227 of the Constitution, is directed against the order of the Subordinate Judge, Balurghat, allowing on appeal the application for pre-emption of the opposite party. The principal question that is involved in this Rule is whether the learned Subordinate Judge was justified in allowing the application for amendment filed by the opposite party.

2. By two deeds of sale, both dated Dec. 8, 1972, the petitioner purchased portions of plot No. 2867 appertaining to a raiyati holding, from two co-sharers of the same. On March 20, 1973, the opposite party, who is a co-sharer of the holding by purchase, made an application for pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955 against the petitioner. On Jan. 19, 1974 the opposite party made an application for amendment of the application for pre-emption. In the application for preemption, the opposite party claimed that she was a co-sharer and, as such, she was entitled to pre-empt the petitioner. By the application for amendment, the opposite party claimed to pre-empt the petitioner on the ground of vicinage as provided in Section 8 of the Act. The learned Munsif by his order No. 14 dated March 2, 1974 allowed the said application 'subject to the condition that in case of new cause-of-action, this amendment will not save any limitation'. At the final hearing of the application for pre-emption, the learned Munsif came to the finding that in view of the decision of the Full Bench of this Court in Ma-dan Mohan Ghosh v. Sishu Bala Atta. : AIR1972Cal502 the opposite party was not a co-sharer of the holding and, accordingly, the application for pre-emption was not maintainable. It appears that the learned Munsif did not deal with the claim of the opposite party for pre-emption on the ground of vicinage which was incorporated in the application for preemption by amendment of the same. Be that as it may, in view of the said finding, the learned Munsif dismissed the application for pre-emption.

3. The opposite party preferred an appeal which was heard by the learned Subordinate Judge. The learned Subordinate Judge considered the case ofthe opposite party for pre-emption on the ground of vicinage. He overruled the contention of the petitioner that the amendment should not be allowed, for it introduced a new case and a new cause-of-action beyond the period of limitation. The learned Subordinate Judge found that on account of the said Full Bench decision in Madan Mohan Ghosh's case (supra), the opposite party was advised to add the new ground for pre-emption. He also took the view that the amendment did not add any new cause-of-action, and that in any event, the addition of a new ground after the expiry of the period of limitation would not do any injustice to the petitioner. Upon the said finding, the learned Subordinate Judge set aside the order of the learned Munsif and allowed the claim of the opposite party for preemption on the ground of vicinage. The petitioner felt aggrieved by the said order of the learned Subordinate Judge and obtained the instant Rule.

4, Mr. Shyama Prosanna Roy Chow-dhury, learned Advocate appearing on behalf of the petitioner has strenuously urged that by the amendment the opposite party having made a new case on a new cause of action beyond the period of limitation, the learned Subordinate Judge acted in excess of his jurisdiction in allowing the claim of the opposite party for pre-emption on the ground of vicinage. It is not disputed that the opposite party became a co-sharer by purchase in the year 1953. In Madan Mohan Ghosh's case : AIR1972Cal502 (supra) it has been held by the Full Bench that on the date of vesting under the West Bengal Estates Acquisition Act, 1953, the raiyats of a holding ceased to be co-sharers and the holding is split up into separate holdings, and that accordingly, the question of exercise of the right of pre-emption under Section 26F of the Bengal Tenancy Act cannot arise, for, the condition precedent to the exercise of the right of pre-emption under that section being that the person exercising that right must be a co-sharer of the person making the transfer. The said Full Bench case was disposed of on July 28, 1972, that is, a few months before the application for pre-emption was filed by the opposite party. It seems that the opposite party or his lawyer was not aware of the effect of the said Full Bench decision and so he originally claimed for pre-emption on the ground of her being a co-sharer of theholding by purchase. It is true that in the application for amendment there is no indication that the opposite party was not aware of the Full Bench case, but we are in agreement with the observation of the learned Subordinate Judge that owing to the said Full Bench decision, the opposite party was advised to add the new ground for preemption by amendment.

5. The question is whether by claim' ing pre-emption on the ground of vicinage under Section 8 of the Act, the opposite parly has sought to make out a new case on a new cause-of-action. In A. K. Gupta and Sons Ltd. v. Damodar Valley Corporation, : [1966]1SCR796 , it has been observed by Sarkar J. (as he then was) that the expression 'causerof-ac-tion' for the purpose of amendment only means a new claim made on a new basis constituted by new facts. In the case before the Supreme Court, the appellant filed a suit against the respondent only claiming a declaration that on a 'proper interpretation of a clause in the works contract it was entitled to enhance 20% over the tendered rates, as the sole difference between the parties was about interpretation. Subsequently, by an amendment, the appellant claimed the recovery of the sum of Rs. 65,000/- or such other amount which might be found due on proper account being taken. Admittedly, the claim for the recovery of Rs. 65,000/- was barred by limitation on the date the amendment was prayed for, The Supreme Court observed that the amendment sought to introduce a claim based on the same cause-of-action, that is, the same contract. The amendment was allowed by the Supreme Court and the judgment of the High Court in so far as it refused the amendment was set aside. The Supreme Court relied on its earlier decision in L. J. Leach and Co. Ltd. v. M/s. Jardine Skinner and Co., : [1957]1SCR438 , where a suit for damages for conversion was by amendment allowed to be converted into a suit for damages for breach of contract after that claim had become barred. Again, in Charan Das v. Amir Khan, AIR 1921 PC 50, an amendment adding a claim for possession after a suit for such claim had become barred was allowed in a suit which wag originally a suit for declaration of a right of pre-emption.

6. In view of the said decision of the Supreme Court in A. K. Gupta's case re-ferred to above, let us see whether by the amendment, the opposite party seeks to introduce a new claim on a new cause-of-action. Under Section 8 of the Act, the right of a co-sharer raiyat to make an application for pre-emption arises on the transfer of a portion or share of a holding to any person other than a co-sharer in the holding. On such transfer, the right of pre-emption under S, 8 also accrues to a raiyat possessing land adjoining such holding. In other words the accrual of the right to pre-empt under Section 8 is the accrual of a cause-of-action for the exercise of that right. When the opposite party asked for pre-emption on the ground of her being a co-sharer of the holding, the cause-of-action was the transfer of the portion of the holding to a person other than a co-sharer. The claim to pre-emption made by the opposite party on the ground of vicinage by the amendment of the application, did not change the cause-of-action which remained the same, namely, the transfer of a portion of the holding to a stranger. The claim is also the same in both the cases, namely, a claim for pre-emption. Only the ground in support of the said claim is a new one, that is, the ground of vicinage. So considered from the point of view of the principles laid down by the Supreme Court in A. K. Gupta's case (supra), the amendment has neither changed the cause-of-action, nor a new claim has been introduced by the same.

7. Much reliance has been placed on behalf of the petitioner on a single Bench decision of the Punjab and Har-yana High Court in Gurmukh Singh v. Dalip Singh, AIR 1971 'Punj and Har 418. In that case, the original claim for pre-emption was based on relationship and by amendment the plaintiffs sought to introduce beyond the period of limitation a new ground for such claim, namely, a superior right of pre-emption. The learned Chief Justice of the Punjab and Haryana High Court took the view that as the claim based on a new ground would have been time barred if a suit had been brought, the amendment should not have been allowed. It seems that the learned Chief Justice thought that the introduction of the new ground was introduction of a new case on a new cause-of-action. In view ofthe reasons already stated, most respectfully we are unable to subscribe to the view expressed in the said case.

8. In this connection, we may refer to a Bench decision of the Jammu and Kashmir High Court in Mst. Gulab Bibi v. Smt. Shakuntala Devi, AIR 1964 J and K 82. In that case, what happened was that the plaintiff filed a suit for possession of the suit property on the ground that he had a right of pre-emption based on contiguity. During the pendency of the suit, the law of preemption based on contiguity was held void by the Supreme Court and the High Court, as it was repugnant to Article 19(1)(f) of the Constitution. Immediately, the plaintiff filed an application for amending the plaint so as to pre-empt the property on the basis of a right of easement, but he did not mention in the application that the amendment was sought for, because a right of contiguity had been declared ultra vires Article 19. It was held that the amendment sought in the case did not alter the nature of the suit because even after such amendment, the suit would still be a suit for pre-emption. The facts of. this case are somewhat similar to the facts of the instant case, for in both, a new ground for pre-emption was introduced by amendment. In our view, also the amendment made by the opposite party claiming pre-emption on the ground of vicinage did not change the nature and character of the proceeding for pre-emption, nor did it introduce a new and inconsistent case.

9. The Supreme Court in Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, : [1970]1SCR22 observed as follows (at p. 1269) :

'Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.'

In our view, when an application for amendment is made beyond the period of limitation, the Court is to considerwhether 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. We may also refer to a Bench decision of this Court consisting of P. N. Mookerjee A.C.J. and A. C. Gupta J. (as he then was) in Bisweswar Bajpai v. Jajneswar Bajpai, : AIR1968Cal213 . In that case, it has been observed by P. N. Mookerjee A.C.J., that it is well known that in the matter of allowing amendments, the Court's power is not circumscribed by the law of limitation, if,- in its opinion, the amendment should otherwise be allowed. We have already stated as to what the necessity was for the opposite party to make an application for amendment. Considering the said circumstance, we think that it would be unjust not to allow the amendment as prayed for. The learned Subordinate Judge, in our view, acted quite in accordance with justice, equity and good conscience in allowing the amendment as prayed by the opposite party. The amendment, in our view, has not caused any injury or injustice to the petitioner. The contention of the petitioner in this regard is overruled.

10. Lastly, Mr. Roy Chowdhury has urged that before the application for pre-emption is allowed, the applicant must satisfy the Court that the transfer of the portion or share of the holding to the applicant does not exceed the limit mentioned in Section 14-M of the Act. It is pointed out on behalf of the petitioner that no finding has been made by the learned Subordinate Judge in that regard. It is true that no such finding has been made as contended on behalf of the petitioner, but it is clear that the transfer of the land to the opposite party will not exceed the limit as prescribed by Section 14-M of the Act. It may be that there is some discrepancy in the evidence of P. W. 1 Sushil Kr. Shome. But in para. 7 of the affida-vit-in-opposition filed by the opposite party in this Court, it has been categorically stated that the opposite party is the owner and in possession of 10 acres of land and her family consists of 7 members. The petitioner has not filed any affidavit-in-reply to deny the said averment in para. 7. We do not find any reason not to accept the said statementin para. 7 read with the deposition of P. W. 1. This point does not appear tohave been argued on behalf of the petitioner before the learned Subordinate Judge. In these circumstances, we do not think that there is any merit in the contention of the petitioner.

11. For the reasons aforesaid, the order of the learned Subordinate Judge is affirmed and the Rule is discharged, but there will be no order for costs.

D.C. Chakravorti, J.

I agree.


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