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1999 DIGILAW 361 (CAL)

SUNITI KR. PRATIHAR v. SARBANI SEN

1999-07-14

P.K.SEN

body1999
P. K. SEN, J. ( 1 ) -THIS application under Article 227 of the Constitution of India is at the instance of a respondent in a proceedings under section 8 of the West Bengal Land Reforms Act and is directed against an order passed by Sri S. Raha, Judge, Special Court (E. C. Act) cum Additional District Judge, Midnapore reversing the order passed by Sri A. Chakraborty, Munsif, Midnapore. ( 2 ) SMT. Sarbani Sen, who is the respondent before this court, made a prayer for pre-emption under section 8 of the West Bengal Land Reforms Act coupled with a prayer under section 5 of the Limitation Act for pre-emption of the disputed plot. The learned Munsif upon consideration of the facts and circumstances and the evidence disallowed the prayer for pre-emption on merits and also on the ground that it is barred by limitation. On being aggrieved by such order, the said petitioner Smt. S. Sen approached the learned District Judge, Midnapore with a prayer made under section 115 (A) of the Code of Civil procedure for relief. It is subsequently heard by Additional District Judge cum Judge, Special Court, who condoned the delay and directed the learned Munsif to decide the petition under section 8 of the West Bengal Land Reforms Act afresh and on merits. On being aggrieved by that order, the instant revisional application has been preferred by this court by Suniti Kr. Pratihar, who happens to be the respondent in the proceedings under section 8 of the West Bengal Land Reforms Act. ( 3 ) MR. Pijush Kanti Dutta, the learned advocate appearing for the opposite party (that is the original petitioner) has contended that with the introduction of section 115 (A) in the Code of Civil Procedure, this court sitting in revision cannot quash the order of the lower court. The provision containing in section 115 (A) was introduction by local amendment and the power of revision was conferred on the District Courts to entertain revisional application which so long was being exercised by the High Court alone. Thus, by the introduction of section 115 (A), co-ordinate jurisdiction has been created by the State amendment clothing the district courts to exercise the identical power in revision which can be exercised by the High Court within the meaning of section 115. Thus, by the introduction of section 115 (A), co-ordinate jurisdiction has been created by the State amendment clothing the district courts to exercise the identical power in revision which can be exercised by the High Court within the meaning of section 115. It is not disputed that in the instant case, the present respondent preferred a revision before the District Judge, Midnapore where the District Court passed an order and so according to Mr. Dutta after such order was passed this court cannot exercise its jurisdiction under section 15 of the Code of Civil Procedure. In support of such contention, Sri Dutta has referred to the decision of this court reported in AIR 1990 Cal page 262, but in that case it was held that a party seeking relief under the revisional jurisdiction of the District Court or the High Court cannot again prefer revision in either of the two courts. But, in section 115 sub section 4 emphasis has been given upon the words 'same party'. Here the parties are different in as much as the present petitioner was the opposite party-respondent before the District Court. Had it been a case that 'same party' has approached this court in revision, the position would have been different and provision of section 115 will operate as a bar. ( 4 ) IN the decision reported in AIR 1990 Cal 262 this court observed that 'same party' cannot seek relief under section 227 of the Code of Civil Procedure, if he had availed of the opportunity of section 115 (A) of the Code of Civil Procedure, but even then this court observed that if manifest injustice was caused, this court can interfere under Article 227. In AIR 1970 Supreme Court page 1 the position was different because in that case 'same party' applied for relief twice on the same ground. Similar is the case which was reported in 99 CWN page 1006. ( 5 ) REGARDING the scope of Article 227 of the Constitution of India it was held by the apex court in the case reported in 1997 (5) SCC 76 that High Court's power of superintendence under Article 227 includes within its sweep the power of judicial review and in cases of erroneous assumption of jurisdiction of the inferior court or tribunal rendering perverse decision the High Court has every authority to interfere and strike down the decision. In 1995 (2) CHN 103 it was held by this court that District Court exercising power of revision under section 115 (A) of the Code of Civil Procedure cannot be treated as equal to the High Court, it still remains a court subordinate to the High Court in view of the provisions of section 3 of the Code and so, the High Court in exercise of its constitutional jurisdiction under Article 227 of the Constitution of India can interfere with an order passed by the District Court under section 115 (A) of the Code and no amendment of statute, short or amendment of Constitution can take away the power of superintendence of the High Court conferred upon it under Article 227 of the Constitution. ( 6 ) IN a single Bench decision reported in 99 CWN, this court observed that an application under section 115 CPC is distinct as an application under Article 227 of the Constitution and one cannot be identified with the other. The scope of Article 227 is radically different and distinct from that of section 115 of the Code of Civil Procedure and that cannot be contemplated as alternatives to each other. The provision of Article 227 of the Constitution is required to be exercised in exceptional cases with a view to keep subordinate courts within the limitation of its jurisdiction. High Court has the power of superintendence over the subordinate courts functioning in the State. The arguments advanced by Sri Dutta that with the introduction of section 115 (A) of the Code of the Civil Procedure, the office of the District Judge has been made equal with that of the High Court and therefore, the instant petition in revision is not tenable in law in view of the provision of section 3 of the Code of Civil Procedure. ( 7 ) NORMALLY, this court would not have exercised its jurisdiction in view of the same jurisdiction having been exercised by the District Court, but if there is any gross illegality or any order having been passed without jurisdiction, this court can still exercise its superintending power under Article 227 of the Constitution of India. ( 8 ) ADMITTEDLY, there was a sale deed dated 27. 5. 83 by which the present petitioner Sri S. K. Pratihar claimed to have purchased the disputed property. ( 8 ) ADMITTEDLY, there was a sale deed dated 27. 5. 83 by which the present petitioner Sri S. K. Pratihar claimed to have purchased the disputed property. The present respondent made a prayer under section 8 of the Land Reforms Act for pre-emption of the disputed property. The impugned sale deed was executed on 27. 5. 83 but the prayer under section 8 was presented on 17. 5. 99. The case of the party who seeks for pre-emption, is that he came to know of the fact of transfer only on 18. 2. 99 and he applied for pre-emption on 17. 5. 99 as there was an apprehension that the relief might be barred by limitation so she made a prayer for condonation of delay under section 5 of the Limitation Act. ( 9 ) THE court of the first instance that is the learned Munsif found that she failed to make out any case of pre-emption and also her relief was barred by limitation. Accordingly, the learned Munsif rejected the prayer for pre-emption as barred by limitation but the learned Additional District Judge, who heard the revision allowed the prayer made under section 5 of the Limitation Act. But the learned District Judge did not set aside the findings of the Munsif on the petition under section 8 of the West Bengal Land Reforms Act by which the learned Munsif disbelieved the case of the petitioner applying for pre-emption. It appears that learned Munsif gave a definite finding that the petitioner could not prove that she acquired her knowledge only on 18. 2. 99. Therefore, when the learned Additional District Judge did not set aside such findings, it remains. It only shows that the learned Additional District Judge did not apply his mind while disposing of the petition. ( 10 ) THUS, from the findings of the learned Munsif, it is clear that the learned Munsif disbelieved the case of the petitioner that she acquired her knowledge only on 18. 2. 99 which means that she was aware of such transfer prior to that date. So, the question of limitation comes in. In the most recent decision of a Division Bench of this court reported in 1999 (1) CWN 365 it was held that Limitation Act is not applicable to a proceedings under section 8 of the West Bengal Land Reforms Act. So, the question of limitation comes in. In the most recent decision of a Division Bench of this court reported in 1999 (1) CWN 365 it was held that Limitation Act is not applicable to a proceedings under section 8 of the West Bengal Land Reforms Act. To counter-act such decision, Sri P. K. Dutta has referred to two decisions of this court given by two different single Judge. In one decision reported in 1994 (1) CLJ 106 . It was held that section 5 of the Limitation Act cannot be applied in proceedings or to an application under section 8 of the Land Reforms Act. Another decision reported in 1997 (1) CLJ 289 it has been contended by the learned advocate appearing for the Opposite Party that the Limitation Act will apply to a proceeding under section 8 of the West Bengal Land Reforms Act. But this decision was not referred before the Division Bench which decides the case as reported in 1999 (1) CHN 365 . In the Division Bench, the court found that Limitation Act is not applicable to a proceedings under section 8 of the West Bengal Land Reforms Act and therefore the question of condonation of delay under section 5 of the Limitation Act cannot arise. ( 11 ) THUS, in view of the definite findings of the learned Munsif with regard to same facts and circumstances as referred to above, I find that the relief as applied for by Smt. Sarbani Sen was barred by limitation and the impugned order of learned Additional District Judge suffers from inherent lack of jurisdiction and it is patently illegal and, therefore, in exercise of the powers of the superintendence as conferred under Article 227 of the Constitution of India, I allow this revision and set aside the impugned the order dated 16. 11. 91 passed by the Additional District Judge, Midnapore. Thus, the relief as claimed by the original petitioner Smt. Sarbani Sen is barred by limitation and accordingly the petition under section 8 of the West Bengal Land Reforms Act stands rejected. All interim orders, if there be any, are vacated. Petition allowed.