Kamala Kanta Kar v. State of West Bengal — 1988 DIGILAW 210 (CAL)

JUDGMENT This writ application is directed against appellate order passed in R.A.L. Case No. 83/81 confirming the order passed in R.A.L. Case No. 420/78 as well as appellate order in R.A. Case No. 31/85 confirming the order passed in R.A.L. Case No. 2626 of 1983. 2. The facts giving rise to this proceeding-may be briefly stated as follows :- Respondent No.6, Smt. Indu Rekha Kar filed an application under section 4 of the West Bengal Restoration of Alienated Land Act and the said case was registered as R.A.L. Case No. 420/78. The writ petitioner appeared and filed his objection. The Special Officer dismissed the application. Against that order R.A. Appeal No. 83/81 was preferred. The appellate court disposed of the appeal on the definite finding that the application before the Special Officer u/s 4 was barred by limitation. Respondent No.6 did not take any further step against the said order passed in appeal. During the pendency of the said appeal she again filed an application u/s 4, of the said Act in respect of the same transaction. The writ petitioner appeared before the Special Officer and raised objection. Hearing the parties and after considering the evidence adduced the Special Officer allowed the application. Against that order an appeal being No. 31/85 was preferred. The appeal was dismissed after hearing. In this background the petitioner has filed this writ application challenging the orders passed in R.A.L. Case as well as appeal against that order in the cases filed later on point of time. 3. The main contention raised in this application by Mr. Sahu is that by amendment of the said Act by West Bengal Restoration of Alienated Land (Amendment) Act, 1980. The words 'within 5 years from the date of such transfer or within 4 years from the date of commencement of this Act, whichever period expires later", the words "within 10 years from the date of commencement of this Act" was substituted. The effect of this amendment was an extension of time of limitation of filing of an application under section 4 of the Act. It will appear from the order passed in R.A.L. Appeal No. 83/81 challenging the order passed in R.A.L. Appeal No. 83/81 challenging the order passed in R.A.L. Case No. 420/78 the appellate order disposed of the same only on the finding that the application was barred by limitation. It will appear from the order passed in R.A.L. Appeal No. 83/81 challenging the order passed in R.A.L. Appeal No. 83/81 challenging the order passed in R.A.L. Case No. 420/78 the appellate order disposed of the same only on the finding that the application was barred by limitation. At the time when the application was filed the period of limitation was within 5 years from the date of such transfer or within 4 years from the date of commencement of the Act. The Appellate Court, found that the transfer was made on 5.4.78, accordingly the application should have been filed by 4.4.78 but the application was filed on 16.10.78. Only on this finding the appellate authority dismissed the appeal. In this connection it may be noted that the Special Officer while disposing of the case did not deal with the point of limitation. He entered into the merits of the application and dismissed the same on merit. Mr. Sahu ld. Advocate appearing for the writ petitioner has submitted that the latter application under section 4 is barred by principles analogous to res judicata. He has relied on (1) Smt. Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621 . According to him the amendment of 1980 of the Act was not rest was not retrospective in effect. Since the application was disposed of on merit by the Special Officer and the Special Collector Officer dismissed the appeal only on the ground of limitation it may be construed that the findings made by the Special Officer on merit was confirmed by him. After such adjudication between the same parties on the same question and the issue having been finally decided the principles of res judicate is attracted. On the other hand Mr. Das has placed his reliance on a decision reported in (2) Abdulla Asgarh Ali Khan v. Ganesh Dass, AIR 1917 Privy Council 201. The facts of that case involved was that the parties to the litigation carried on certain business in British Baluchisthan in partnership. In July, 1910 they agreed to dissolve the partnership. According to the plaintiff Ganesh Dass accounts were duly adjusted, when a sum of over Rs. 9,900 was found due from the defendant. The facts of that case involved was that the parties to the litigation carried on certain business in British Baluchisthan in partnership. In July, 1910 they agreed to dissolve the partnership. According to the plaintiff Ganesh Dass accounts were duly adjusted, when a sum of over Rs. 9,900 was found due from the defendant. Asgarh Ali on 12th July a formal deed of dissolution was executed by all the partners; and on the day following the defendant executed a bond on which the suit was brought. The defendant in that suit made out a case that the deed of dissolution which embodied the settlement and executed the bond agreeing to pay the amount alleged to be due from him on the fraudulent representation of the plaintiff that the adjustment of accounts was correctly made and on the assurance that should the defendant upon the examination of the accounts at his leissure discover any mistake they would be rectified. The suit for cancellation of the bond came for trial. The trial court held that the plaintiff had failed to establish his allegation of fraud. The defendant preferred an appeal and the trial court judgment was confirmed by the District Judge. Thereupon a second appeal was preferred before the Judicial Commissioner. The Judicial Commissioner found that the objection as to the frame of the suit was well found and accordingly they entered into the merits of the case dismissed the defendant's appeal against the order of the lower court dismissing his action. Thereafter, Ganesh Dass instituted the present suit on the bond executed by the appellant. The defendant again denied liability on the ground that it had been obtained from him by fraud. The Courts below held that the issue raised by the defendant was res judicata and they were precluded by the provisions of section 10 of Regulation IX of 1896 from entering upon an enquiry whether the bond had been obtained from him on fraudulent representation. The defendant's defence was held to be res judicata. It was found by the Privy Council that the matter in issue in the suit was no doubt same as to the defendant's own action. Relying on a decision reported in (3) ILR 24 Cal. The defendant's defence was held to be res judicata. It was found by the Privy Council that the matter in issue in the suit was no doubt same as to the defendant's own action. Relying on a decision reported in (3) ILR 24 Cal. 616 in connection with a case under section 11 of the I.P.C. which is in pari materia, identical with section 10 of the Baluchisthan Regulation agreed with the rule enunciated in that case, viz., to support the plea of res judicata it is not enough that the parties are the same and that the same matter is in issue. The matter must have been heard and finally decided If there had been no appeal in the first suit the decision of the Subordinate Judge would no doubt have given rise the plea but the appeal destroyed the finality of the decision. The judgment of the lower court was superseded by the judgment of the Court of Appeal and the only thing finally decided by the court of appeal was that in a suit constituted as the suit of 1885 no decision ought to have been pronounced on the merits. "Mr. Das urged that it is clear from the decision that the appellate court judgment did not decide the application on merit. It only dismissed the application on the ground of res judicata. Whenever an appeal is preferred against a judgment the judgment loses its character of finality and ultimately the judgment in appeal will determine whether any issue raised is hit by the principles of res judicata, According to him his earlier application was dismissed only on the ground of limitation and since by amendment of 1980 to section 4 of the Act the period of limitation was extended he, had every right to file the application and the same cannot be rejected on the plea that the matter has been adjudicated once earlier. 4. Referring to, (4) AIR 1966 SC 1332 , Mr. Das submitted that in that suit two appeals were preferred before the High Court against judgment in S.Nos. 77 and 91. One of the appeals was dismissed on the ground that it was filed beyond the period of limitation; while the other appeal was dismissed on the ground that the appellant therein had not taken steps to print the records. Das submitted that in that suit two appeals were preferred before the High Court against judgment in S.Nos. 77 and 91. One of the appeals was dismissed on the ground that it was filed beyond the period of limitation; while the other appeal was dismissed on the ground that the appellant therein had not taken steps to print the records. Accordingly, it was contended that the appeals were not heard and finally decided by the High Court, Accordingly, the principles of res judicata cannot be attracted. The court observed that a matter may be said to have been heard and finally decided can only be ascertained if decision was on the merits. Where for example the former suit was dismissed by the trial court for want of jurisdiction or for default of plaintiff’s aspects or on the ground of non-joinder of parties or misjoinder of parties or multiferiousness or on the ground that the suit was badly framed or on the ground of a technical mistake or for failure on the part of the plaintiff to produce probate or letters of administrationer succession Certificate when the same is required by law to entitle the plaintiff to a relief or for failure to furnish security or on the ground of improper valuation or for failure of pay additional court fee on a plaint which was under valued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal. If any, such decisions not being on merits would not be res judicata in a subsequent suit. Mr. Das urged that according to the principles laid down in this decision the instant case cannot be held to be barred by principles of res judicata as the appeal court only decide no the point of limitation alone, Mr. Sahu on the other hand contented that the grounds mentioned in this decision appears to be exhaustive. It does not speak of a suit barred by limitation. He contended that since the appeal was dismissed on the findings arrived at by the Special Officer was confirmed and accordingly, same is barred by limitation. 5. There is no doubt that the West Bengal Restoration of Alienated Land Act is a welfare legislation aims at restoring land to the poor transferors who were compelled to transfer their lands in distress and financial difficulties. 5. There is no doubt that the West Bengal Restoration of Alienated Land Act is a welfare legislation aims at restoring land to the poor transferors who were compelled to transfer their lands in distress and financial difficulties. Such social welfare legislation should be given a liberal construction. Amendment of 1980 extended the period of limitation if any transferor filed an application earlier to the amendment which was held to be barred by limitation it cannot be extended that the application was decided on merits. The appellate court judgment being the final judgment clearly indicate that the application was rejected only on the ground of limitation. The merit was not taken into account, therefore the second application filed by the writ petitioner is in my view maintainable. 6. Mr. Sahu contended that the courts below in holding that the application is not barred by the principles of res judicata as relied on section 7A of the Act. It lays down that notwithstanding anything to the contrary contained in any other law or in any judgment, decree or order of any court Tribunal or any other authority the provisions of sec. 11 of the C.P.C. shall not apply to any proceeding or appeal under this Act. Mr. Sahu rightly contended that section 7A applies only in respect of judgments and orders passed by any court, Tribunal or any other authority other than the authority under this Act. In the instant case, the earlier order which is pleaded as a bar to the second application is an order passed under this Act. Therefore, section 7A does not apply. But I have already indicated than even section 7A attracted the principles of res judicata cannot be applied on the facts of this case. 7. In this case Mr. Sahu has drawn my attention that during pendency of the appeal the second application was filed and therefore the Special Officer ought to have consider that the date on which the said application was filed the name was bit by the principles of resjudicata. Mr. Das submits that in such the second application should be kept pending until the appeal is disposed of (5) AIR 1931 Privy Council 262: In the instant case it does not appear that any step on the second application was taken till disposal of the appeal. Mr. Das submits that in such the second application should be kept pending until the appeal is disposed of (5) AIR 1931 Privy Council 262: In the instant case it does not appear that any step on the second application was taken till disposal of the appeal. Therefore, filing of the application during the pendency of the appeal does not affect the merit of the application. 8. Considering the contentions raised by the parties in this application, I am unable to find any merit in the same stands dismissed without any order as to cost. On the prayer of the learned Advocate for the petitioner, operation of this order is stayed for 3 (three) weeks from this date.