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Pankaj Kumar HazrA. Vs. Dr. Arabinda Nayak and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata Appellate High Court
Decided On
Case NumberC.O. No. 1042 of 2010
Judge
AppellantPankaj Kumar HazrA.
RespondentDr. Arabinda Nayak and ors.
Appellant AdvocateMr. P. B. Sahu,; Mr. N. K. Das, Advs
Respondent AdvocateMr. J. R. Chatterjee,; Mr. S. K. Dutta,; Mr. Supratim Dhar, Advs
Excerpt:
.....suo motu as a custodian of justice. the supreme court emphasized that from an order of the single judge passed under article 226, a letters patent appeal or an intracourt appeal is maintainable. but no such appeal is maintainable from an order passed by a single judge of a high court in exercise of the power under article 227. the supreme court, on an analysis of the precedents on the subject , formulated the principles for the exercise of the jurisdiction of the high court under article 227 of the constitution thus: " a petition under article 226 of the constitution is different from a petition under article 227. the mode of exercise of power by the high court under these two articles is also different. in any event, a petition under article 227 cannot be called a writ petition. high..........nos. 3 & 4. according to the plaint case, the defendant no.4 was the absolute owner of the suit property and the defendant nos.1 & 2 being the son-in-law and the daughter of the defendant no.4 represented that the defendant no.4 executed and registered two deeds of gift in favour of the defendant nos.1 & 2. by making such representation, the defendant nos.1 & 2 sold out the suit properties in favour of the plaintiff. at the time of taking possession, the defendant no.3, son of the defendant no.4, resisted him. at that time, the plaintiff came to know that the defendant no.4 executed an agreement for sale in favour of the defendant no.3 earlier. under the circumstances, a suit being o.s. no.27 of 2000 is pending and an order of status quo was passed. the defendant nos.1 & 2 agreed.....
Judgment:
1. Challenge is to the order no.104 dated January 29, 2010 passed by the learned Civil Judge (Junior Division), First Court, Contai in Title Suit No.89 of 2001. The defendant no.3 is the petitioner. The plaintiff/opposite party instituted a title suit being Title Suit No.89 of 2001 before the learned Civil Judge (Junior Division), First Court, Contai against the opposite party nos.2 & 3 as the defendant nos.1 & 2 and the petitioner herein and the opposite party no.4 herein as the defendant nos. 3 & 4. According to the plaint case, the defendant no.4 was the absolute owner of the suit property and the defendant nos.1 & 2 being the son-in-law and the daughter of the defendant no.4 represented that the defendant no.4 executed and registered two deeds of gift in favour of the defendant nos.1 & 2. By making such representation, the defendant nos.1 & 2 sold out the suit properties in favour of the plaintiff. At the time of taking possession, the defendant no.3, son of the defendant no.4, resisted him. At that time, the plaintiff came to know that the defendant no.4 executed an agreement for sale in favour of the defendant no.3 earlier. Under the circumstances, a suit being O.S. No.27 of 2000 is pending and an order of status quo was passed. The defendant nos.1 & 2 agreed to pay the compensation at first. But, ultimately, they denied to make any payment. So, the plaintiff was compelled to file the suit for cancellation of the deed executed in his favour and for compensation and other reliefs. The defendants are contesting the said suit by filing separate written statements denying the materials allegations of the plaint case. The suit was at the stage of recording evidence. At that time, the so-called agreement for sale dated May 31, 1987 was tendered by the defendant no.3. But, since the said agreement was not a registered one, it was marked x for identification and the learned Trial Judge observed that the agreement for sale was required to be sent to the Collector, Purba Medinipur for assessing stamp duty and penalty thereon in accordance with law and to submit a report accordingly. A report came assessing the valuation of the suit property to the tune of Rs.14,80,740/- as per present market value. The petitioner was directed to pay the court fees and penalty amount on the valuation accordingly by the impugned order. Being aggrieved, this application has been preferred.

2. Now, the question is whether the impugned order should be sustained.

3. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the defendant no.3 is basing stand over the suit property on the basis of an agreement for sale dated May 31, 1987 which is an unregistered agreement. It was not marked as an exhibit and the learned Trial Judge directed the Collector, Purba Medinipur for assessing the stamp duty and penalty after assessing the valuation of the land. It is pertinent to mention that the learned Trial Judge has passed such orders on the basis of an application filed by the defendant no.3 before the learned Trial Judge. The Collector, Purba Medinipur sent a report assessing the valuation of the suit property as per present market value.

4. Mr. P. B. Sahu has contended that valuation should have been assessed on the basis of the fact that what was the valuation of the suit property in the year of 1987 when the agreement for sale was executed. Mr. Sahu has referred to the decision of AIR 1971 Cal 167, particularly paragraph no.6 wherein it has been held that the Court can pass appropriate orders suo motu under Article 227 of the Constitution of India when there is a grave or serious prejudice is caused to a party for non-exercise of jurisdiction.

5. He has also referred to the decision of (1990) 1 SCC 513, particularly paragraph no.16 & 17 and thus he has submitted that it is the duty of the Court to take appropriate measures in appropriate situation and no person should be allowed to suffer because of the mistake of the Court. So, though there was some delay in preferring the application, it should not be taken as a bar to entertain the claim of the petitioner.

6. It is pertinent to mention that the said agreement was sent to the concerned Collector for assessment of stamp duty at the instance of the defendant no.3 as per order no.61 dated June 28, 2004. The report was received by a letter dated August 3, 2009. In order to assess the stamp duty and the penalty, I think the Collector was justified in taking into consideration the current market value of the suit property and not the valuation of the property which was at the time of agreement of sale on May 31, 1987. If sale deed is to be executed on the basis of the decree for specific performance of contract to be passed, such valuation should be the consideration in the matter of calculation of stamp duty and the fees for registration. So, I do not find any illegality in the matter of assessment of the stamp duty to be paid by the petitioner. It was initiated at the instance of the defendant no.3 and when it was noticed that the valuation of the land was high, he came back from his stand which he cannot do after lapse of so many years since the time of passing of the order on June 28, 2004.

7. Therefore, I do not find any illegality or impropriety in the impugned order. The learned Trial Judge has not failed to exercise the jurisdiction vested in him. So, there is no scope of interference with the impugned order. This application, therefore, fails to succeed.

8. It is, therefore, dismissed.

9. Considering the circumstances, there will be no order as to costs.

10. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.


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