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2005 DIGILAW 90 (CAL)

SARBESWAR GIRI v. BIMALENDU KHATUA

2005-02-08

NARAYAN CHANDRA SIL

body2005
Narayan Chandra Sil ( 1 ) THIS is to consider a revisional application under Article 227 of the constitution of India which arose out of order dated 28. 11. 2003 passed in civil Revision No. 1 of 2003 by Sri Kali Sadhan Samajder, the learned additional District Judge, Midnapore affirming the order dated 31. 08. 2001 passed in J. Misc. Case No. 46 of 1999 by Sri S. D. Chatterjee Civil Judge (Junior Division), 1st Court, Contai. ( 2 ) IT appears from the petition that one application under Section 8 (1)of the West Bengal Land Reforms Act for pre-emption to pre-empt the land sold in favour of the Opposite Party was filed as an owner of the adjacent land. Subsequently an application for amendment of the original application was filed having claimed pre-emption cm the ground of being co-sharer also of the vendor. It is also stated in Paragraph 6 of the petition that the o. P. did not raise any objection to such proposed amendment. But the learned trial Court by order dated 31. 08. 2002 rejected the said application in view of the amendment of the Civil Procedure Code which came into force on 1st July, 2002 Against that order the petitioner moved a revisional application before the learned Additional District Judge. But the said revisional application was also dismissed. This revisional application arose against such order of the learned Additional District Judge. ( 3 ) HEARD the learned Advocates for both the parties. Perused the materials-on-record including the orders impugned. On scrutiny it appears that the order of the trial Court is absolutely laconic in nature and it further appears that the concentration and consideration of both the Courts below were only on lack of due diligence to be exercised by the petitioner. Both the Courts below have acted on the amended provisions of the Code of civil Procedure without taking into consideration the saving and repealing clauses. ( 4 ) AT the time of arguments the learned Advocate for the O. P. has highlighted his objection on the question of limitation and it is submitted by him that the application for pre-emption under Section 8 of the W. B. L. R. Act was filed after three months of the expiry of limitation. ( 4 ) AT the time of arguments the learned Advocate for the O. P. has highlighted his objection on the question of limitation and it is submitted by him that the application for pre-emption under Section 8 of the W. B. L. R. Act was filed after three months of the expiry of limitation. It is of course admitted by him that the period of limitation is to be reckoned with from the date of registration of transfer. It is also admitted by the learned Advocate for the O. P. that they have already taken the ground of limitation in their written objection to the petition under Section 8 of the W. B. L. R. Act. It is pointed out by the learned Advocate for the O. P. that the application for amendment was filed at a very belated stage i. e. after the evidence of both the parties was closed. ( 5 ) THE learned Advocate for the petitioner submits that the provisions of Section 8 of the W. B. L. R. Act has already been amended and it requires that the petitioner is to take the ground of being co-sharer in order to file a petition for pre-emption. ( 6 ) HE has referred to a ratio decided in the case of Nur Bakta Gayen and Ors. v. Jahur Mohammad Gayen and Anr. , 2004 (4) CHN 228 . It was held there by Mr. Bhaskar Bhattacharya, J. as below :-" (i) The first point that arises for consideration in this application is whether in view of the amendment of the Code of Civil Procedure with effect from 1st July, 2002, the application for amendment is liable to be dismissed. In order to appreciate the aforesaid question, it will be necessary to refer to Section 16 of the Code of Civil Procedure (Amendment) Act, 2002. (ii) According to Section 16 (2) (b) quoted above, the provisions of Rules 5, 15, 17 and 18 of Order 6 of the First Schedule shall not apply in respect of any "pleading" filed before commencement of section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act. (iii) In the present case original pleadings, namely, plaint and written statement were filed before 1 st July, 2002, the date on which the 2002 amendment had come into force. (iii) In the present case original pleadings, namely, plaint and written statement were filed before 1 st July, 2002, the date on which the 2002 amendment had come into force. Therefore, the defendants having already filed their pleading, i. e. , written statement, prior to 1st july, 2002, the amended provision of Order 6 Rule 17 shall have no application and the present application for amendment should be disposed of in accordance with the law as it stood prior to the coming into operation of the aforesaid amendment. "in order to appreciate the situation herein before us it is required to take the provisions of Section 16 of the Code of Civil Procedure (Amendment)Act, 2002 which reads as below :-" (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except in so far as such amendment or provisions are consistent with the Principal Act as amended by this Act, stand repealed. (2) Notwithstanding that the provisions of this Act have come into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General clauses Act, 1897 (10 of 1987),- (a) the provisions of Section 102 of the Principal Act as substituted by Section 5 of this Act, shall not apply to or affect any appeal which had been admitted before the commencement of Section 5; and every such appeal shall be disposed of as if Section 5 had not come into force; (b) the provisions of Rules 5,15,17 and 18 of Order VI of the first Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment)Act, 1999 (46 of 1999) and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act. "section 16 of the Amendment Act of 2002 deals with the repeal and saving clauses. "section 16 of the Amendment Act of 2002 deals with the repeal and saving clauses. ( 7 ) ON perusal of the orders impugned it is clear that both the Courts below have ignored the above provisions of the Amendment Act of 2002 in rejecting the prayer for amendment of the petition under Section 8 of the w. B. L. R. Act. Rather it appears from their orders that they were concerned with Section 7 of the Amendment Act of 2002. By that section Order 6 of the old Code was amended and it reads as under:-"in the First Schedule, in Order VI for Rules 17 and 18 (as they stood immediately before their omission by clause (iii) of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) the following rules shall be substituted, namely :-"17. Amendment of pleadings.-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties : provided that no application for amendment shall be allowed aftet the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. "it is thus clear that the learned Courts below have overlooked the provisions of Section 16 (2) (b) of the Amendment Act of 2002 as quoted above and ignored the fact thereby that the original petition was filed long before the amendment Act of 2002 came into force. It is not disputed by the learned advocate for the opposite party that by incorporating the prayer to claim the pre-emption on the ground of being co-sharer also in the petition under sections of the West Bengal Land Reforms Act filed prior to the introduction of Amendment Act of 2002 there is no change in the nature and character of the petition or in the cause of action of the petitioner in any way. But still there remains a question of limitation which is open before the learned trial court to consider at the time of final hearing of the petition itself. But still there remains a question of limitation which is open before the learned trial court to consider at the time of final hearing of the petition itself. It may be pointed out in this connection that in the written objection filed by the o. p. before the learned trial Court they have taken the ground of limitation and thus in allowing the revisional application filed before this Court I shall keep the question of limitation to be determined by the learned trial Court. ( 8 ) THERE is no doubt that an application under Section 8 of the W. B. L. R. Act and written objection there against have been filed before the learned trial Court which are in fact the matter for consideration by the learned trial court. There is no doubt that those are virtually the pleadings of the parties in the nature of the petition and objection respectively and as such the judgment passed in the case of Nur Bakta Gayen (supra) squarely fits with the facts and circumstances of this case. In view of all above the revisional application is allowed on payment of cost of Rs. 2,000/- by the petitioner to the O. P. The orders passed by both the Courts below are hereby set aside. The trial Court is directed to give effect to the prayer for amendment and incorporate the same in the petition and register, if any, accordingly. The O. P. is given liberty to file additional written objection keeping the same confined to the extent of amendment allowed by this Court within a period of 15 days after the order is effected before the learned trial Court.