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Gadadhar Sarkhel Vs. Gopal Chandra Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Reported inAIR1936Cal343,166Ind.Cas.641
AppellantGadadhar Sarkhel
RespondentGopal Chandra Das and ors.
Cases ReferredM. Satya Narayan Brahman v. M. Seethaya
Excerpt:
- .....small share in the patni feld his application for pre-emption. to the said application he made opposite parties 2 to 12 parties on the footing they were the remaining co-sharer landlords of the said holding. the said application which was accompanied by the requisite deposits was registered as a miscellaneous case on 25th february 1935. process fees for the service of notice of the application on all the opposite parties to the application, that is, for service of the notice of the application on the purchaser and on the remaining co-sharer landlords, was filed along with the application, but the court overlooked the said fact and was under the wrong impression that the said fees had not been deposited. accordingly it did not direct the issue of the notices and recorded on 30th march.....
Judgment:

R.C. Mitter, J.

1. The petitioner and opposite parties 2 to 12 are the owners of a certain patni taluk. There is an occupancy holding under the said patni taluk held directly under the patnidars at a rent of Rs. 7-12-0. Opposite party 1 purchased 3/4th share of the same for Rs. 150. In the document of transfer pposite parties 2 to 11 and petitioner were named as the immediate superior landlords and the notice of the transfer was served on them on 16th December 1934. No such notice was served on oppesito party 12.

2. On 11th February 1935 the petitioner, who had a very small share in the patni feld his application for pre-emption. To the Said application he made opposite parties 2 to 12 parties on the footing they were the remaining co-sharer landlords of the said holding. The said application which was accompanied by the requisite deposits was registered as a miscellaneous case on 25th February 1935. Process fees for the service of notice of the application on all the opposite parties to the application, that is, for service of the notice of the application on the purchaser and on the remaining co-sharer landlords, was filed along with the application, but the Court overlooked the said fact and was under the wrong impression that the said fees had not been deposited. Accordingly it did not direct the issue of the notices and recorded on 30th March 1935, the following order in the order sheet.

It appears that process has not been filed. Petitioner to file the same at once failing which the petition will stand rejected; fix 6th April 1935 for orders.

3. On 6th April 1935, the following order was passed:

Process fee filed. Issue notice on the opposite party fixing 4th May 1935 for hearing.

4. The notices were issued on 10th April 1935 and served on opposite parties 2 to 12 on 27th April 1935. Opposite parties 2 to 6 and 12 applied for being made coapplicants for pre-emption on 4th May 1935, and opposite parties 7 to 11 made similar applications on 24th June 1935. In his application opposite party 12 stated that no notice of transfer under Section 26-C, Bengal Tenancy Act, had been served on him and that he came to know of the transfer for the first time when notice of the application for pre-emption made by the petitioner was served on him through Court. He stated that if the notice under Section 26-C had been served on him he would have applied for pre-emption under Section 26-F, Sub-section (1), and he wanted to pre-empt. This statement has been repeated in the counter-affidavit, filed before me on his behalf. As no evidence was recorded in the lower Court and parties chose to proceed on question of law only, I must accept his statements. He also asked the Court to intimate to him what money he should deposit under Section 26.F, Sub-section 4, Clause (b), but the Court not having passed any orders on his application he deposited Rs. 82-8-0 being half the amount which the petitioner had deposited with his application for pre-emption.

5. The purchaser did not oppose preemption and the contest was amongst the co-sharer landlords. The petitioner maintained and still maintains that he is entitled to pre-emption on the whole; opposite party 12 maintains that he and the petitioner are the only two persons entitled to preempt, and the other opposite parties, namely 2 to 11, maintain that an order for pre-emption should be made in favour of all the cosharer land-lords, The learned Munsif has allowed all the patnidars to pre-empt.

6. Before me Mr. Das, who appears for the petitioner, has contended that the order of the learned Munsif is wrong and that his client alone should have been allowed to pre-empt. He says that the learned Munsif had exceeded his jurisdiction in entertaining the application of his co-sharers to become co-applicants as those applications had been filed beyond the time mentioned in Section 26-F, Sub-section 4. Clause (a). This argument would have been unanswerable if opposite party 12, whose application must be considered not only as an application to become a co-applicant but an independent application for pre-emption under Sub-section (1), Section 26-F, had been served with the notice of transfer. The matter is further complicated by the fact that owing to a mistake committed by the Court the notice of the petitioner's application for pre-emption was not issued on opposite parties 2 to 12, the remaining cosharer landlords, within one month of the filing of the said application.

7. To repel the contentions urged by Mr. Dass, the opposite parties have raised two points, namely: (a) that the time for joining as co-applicants as provided for in Section 26-F, Sub-section 4, Clause (a) ought to be extended in this case on account of the aforesaid mistake of the Court, and (b) that as opposite party 12's application regarded as an application for pre-emption under Sub-section (1), Section 26-F, is in order, he having come in within a reasonable time of acquiring knowledge of the transfer as no notice under Section 26-C had been served on him, the other opposite parties have .the right to become co-applicants in his, opposite party 12's application, within one month from the date of the said application and some of them having applied to become co-applicants on the date when that application was filed and the rest also within a month thereof, the order made by the learned Munsiff is correct.

8. I hold that both these contentions of opposite parties 2 to 12 are sound and the Rule ought to be discharged. So far as the second of the aforesaid contentions is concerned it is covered by authority. The point came up for consideration before my learned brother Lodge, J., in Tara Sundar Banerjee v. Kishory Mohan Bay Civil Revn. No. 130 of 1935, Decided on 31st May 1935. He held that under the circumstances present in this case the application of a cosharer landlord (B), who had not been served with the notice of transfer, to become a co-applicant in the application for pre-emption made by another co-sharer landlord (A), who had been served with such a notice, is to be considered as an application for pre-emption under Sub-section (1), Section 26-F, and as soon as such an application is made the remaining co-sharer landlords C and D would have right to become co-applicants, if they make an application for being made so within one month of B's application for pre-emption, although they ask for pre-emption beyond a month of A's application. This decision is supported by the language of the statute. A simpler case can be conceived. Suppose there are three persons X, Y and Z who are the immediate landlords of the holding sold. The notice of transfer is served on the said three persons on three dates wide apart from each other. The notice of transfer is served on X on 2nd October 1935, and Y on 2nd November 1935, and on Z on 2nd December 1935. Y makes the application for pre-emption under Sub-section (1), Section 26-F on 2nd January 1936, i.e., on the very last date, and Z makes an application for pre-emption under the same Sub-section on 2nd February 1936.

9. Although X cannot become a co-applicant in Y's application for pre-emption if, he makes his application on 4th February 1936, because it would be beyond two months of the date of service of the notice of transfer on him and also beyond one month of Y's application for preemption, he would be within time to become a co-applicant to Z's application, for though his application is beyond two months of the service of the notice of transfer on him, he would be within one month of Z's application. A co-sharer landlord may not like to pre-empt the property from the purchaser, he may not have any personal objection to a particular co-sharer having the whole holding to himself by exercising the right of preemption, but he may have objection to another co-sharer of his having by preemption the whole of the holding transferred. It cannot therefore be held either on the words of the statute or on general principles, that a co-sharer landlord must exercise his right to acquire a share of the holding by becoming a co-applicant at the earliest opportunity, that is as soon as the first application for preemption is made by one of his co-sharers. I accordingly uphold the second contention raised by the opposite parties. This is sufficient for the disposal of the Rule, but in deference to the arguments advanced before me on the first point raised by the opposite parties I express my views thereon. The said point has for its basis the fact that owing to a mistake of the Judge unwillingly, committed, the notice of the application for pre-emption made by the petitioner was not issued promptly but was issued after a month of the petitioner's application for preemption. The question is whether the Court should set right the injury caused to the rights of the co-sharer landlords opposite parties. On the facts of this case, it cannot be said that the petitioner's application for pre-emption was not in order. He had filed the said application within time and had made the remaining co-sharer landlords parties. He had put in process fees along with his aplication for pre-emption. It cannot be urged that he by his act had not given opportunity to his co-sharers to join as co-applicants, but if the Court had done what it was required to do, that is to issue the notice of the application for pre-emption immediately after the process fees were deposited, the notice of the petitioner's application for pre-emption would have been served within a month of the said application. The said notices were served late owing to the Court's mistake. The question is whether the Court has inherent power under tese circumstances to do what justice requires. It is true that the Court cannot invoke the aid of Section 5, Lim. Act, as that section has not been extended to applications for pro-emption made under Section 26-F. It is true that it has been laid down, though the decisions are not uniform in that respect, that questions of extensions of time or exclusion of time ought to be answered solely by reference to the provisions contained in the Limitation Act. I have in mind the cases where suspension of time had been pleaded apart from the statute, of which the cases of Ranee Surna Moyee v. Shooshee Mukhee (1867-69) 12 M I A 244 and Sarat Kamini v. Nagendra Nath Pal 1926 Cal 65 are types. In the last mentioned case which has been followed by the Madras High Court in M. Satya Narayan Brahman v. M. Seethaya 1927 Mad 597 my learned brother Mukerjee, J., after an elaborate review of the case law, repelled the claim for exclusion of time based not on the provisions of the Limitation Act but on equitable principles. But I do not consider that these decisions can be invoked in the case before me. It is an established principle that where rights of third parties have not intervened it is not only in the power, but it is the duty, of the Court, to relieve a party of the injury done to him by it, by reason of its mistakes and defaults or mistakes and defaults of its officers inadvertently committed. Actus curiae 'neminem gravabit. This principle, in my judgment, ought to be applied even when for relieving a party from such injury the Court has to consider the question of time. I accordingly discharge this Rule with costs. Hearing-fee one gold mohur to be divided between the appearing opposite parties in equal shares.


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