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2011 DIGILAW 370 (CAL)

Haridar Sarkar (dead) v. Jitendranath Ghosh

2011-03-15

PRASENJIT MANDAL

body2011
JUDGMENT :- Prasenjit Mandal, J. These two applications are directed against the orders dated August 25, 2005 passed by the learned Additional District Judge, First Court, Siliguri in Civil Revision No.25(S) of 2004 and orders dated June 18, 2004 passed by the learned Civil Judge (Junior Division), Siliguri in Misc. Judicial Case No.17 of 1994 and Misc. Judicial Case No.16 of 1994. Since identical questions are involved in the two matters, these two applications are disposed of by this common judgment. For convenience, I am discussing the C.O. No.2462 of 2005 first. The short fact necessary for the purpose of disposal of this application is that an application under Section 8 of the West Bengal Land Reforms Act, 1955 for pre-emption was filed by the petitioner against the opposite party on the ground of vicinity. The opposite party entered appearance and he is contesting the said application by filing a written objection. The petitioner filed an objection against amendment of the objection. Thereafter, on taking evidence on behalf of both the sides, the application for pre-emption was allowed and the learned Trial Judge has directed that the right, title and interest of the opposite party in the land in case shall vest in the petitioner by an order dated April 25, 2000. Thereafter, the opposite party preferred the misc. appeal. It was contested by the petitioner. By an judgment dated July 17, 2001, the learned Additional District Judge, First Court at Siliguri set aside the order dated April 25, 2000 and sent back the misc. case on remand for fresh trial. The learned Additional District Judge gave liberty to the petitioner to amend their application and to adduce further evidence in terms of the observations made in the body of the judgment. At that time, the petitioner filed an application under Order 6 Rule 17 of the C.P.C. for introduction of certain facts which according to him are necessary for the ends of justice. That application for amendment of the plaint was allowed in part on contest with costs. Being aggrieved by that order, the original petitioner (now deceased), has come up with this application. Now, the question is whether the impugned order should be sustained. Upon hearing Mr. That application for amendment of the plaint was allowed in part on contest with costs. Being aggrieved by that order, the original petitioner (now deceased), has come up with this application. Now, the question is whether the impugned order should be sustained. Upon hearing Mr. Talukdar, learned counsel for the petitioner, I find that the original petitioner filed an application for pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955 against the opposite party on the ground of vicinity. That application for pre-emption was allowed on contest. Thereafter, the opposite party preferred a misc. appeal being no.11(S) of 2000. The said misc. appeal along with other misc. appeal were disposed of by an order dated July 17, 2001 and the impugned order dated April 25, 2000 passed in the said misc. case was set aside. The misc. case was sent back on remand for fresh trial. The learned Trial Judge was directed to give an opportunity to the petitioners to amend their misc. case, if any and to adduce further evidence in terms of the observations made in the body of the judgment. Accordingly, the matter came up before the learned Trial Court again. When the application for amendment of the application was filed, that was allowed in part. Therefore, I am to consider first what was the direction passed by the learned lower appellate Court in the misc. appeal. I have already stated that the application for pre-emption was sought for on the ground of vicinity, that is, the petitioner has land adjoining to the land in case. While disposing of the misc. appeal by the judgment dated July 17, 2001, the learned lower appellate Court has clearly observed that the Court below did not consider the holding in case and the holding of the petitioner and as such, the two holdings, namely, the holding of the land under pre-emption and the holding of the petitioners are to be clearly stated for the purpose of deciding whether the petitioners have adjoining land to the land in case or not. So, the application was sent back on remand with the limited scope of deciding the two holdings referred to above and for no other purpose. In the meantime, the definition of the holding has been abolished. The provisions of Section 8 has been changed. So, the application was sent back on remand with the limited scope of deciding the two holdings referred to above and for no other purpose. In the meantime, the definition of the holding has been abolished. The provisions of Section 8 has been changed. In place of the words “a part of the holding”, “a part of the land” have been incorporated and thereafter the remand order was passed but at that time, the petitioner did not pray for pre-emption on the ground that he is a co-sharer in respect of the land in case. The contention of Mr. Talukdar is that at the time of consideration of the application for amendment the merit of the application or the fact if it is barred by limitation should not be considered. If the claim for pre-emption on the ground of cosharer, as claimed by the petitioner in the application for amendment, is allowed, the nature of the application, that is, for pre-emption shall remain unaltered and in order to solve the dispute between the parties effectively, the proposed amendment should have been allowed. So, the learned Trial Judge has committed wrong in allowing the application in part. It may be noted herein that the learned Trial Judge has allowed the part of the amendment which is in conformity with the directions passed by the learned lower appellate Court, that is, with regard to elaboration in the nature of claim of the petitioners as adjoining landowners to the land in case. But the prayer portion which includes the claim for pre-emption on the ground of co-sharership has been rejected by the impugned order. The learned appellate Court did not grant the amendment on the ground of claiming for pre-emption on the basis of co-sharership. Therefore, I find that the learned appellate Court has sent back the application on remand with an opportunity to amend the same on the limited scope as to giving the particulars as to the adjoining landowners in details and not on other points and the portion of the amendment which is in conformity with the order of the learned appellate Court has been granted. So far as the claim for pre-emption on the ground that the petitioner is also a co-sharer of the land in case, I find that the remand was not given to that effect at all though the amendment of Section 8 of the West Bengal Land Reforms Act had already taken place in the meantime in 2000. Thus, I find that the learned Trial Judge has followed the directions given by the learned appellate Court. Mr. Talukdar has referred to the decisions of AIR 1978 Cal 482 particularly paragraph nos.2, 3, 6 and 9 and thus, he submits that such amendment has not changed any cause of action or a new claim has been introduced by the amendment. So, such grant of amendment is permissible. He has next referred to the decision of AIR 2004 SC 4120 particularly paragraph nos.12, 13, and 14 and submits that amendment of the pleading sought for after substantial delay can even be allowed in appropriate cases if that subserves the cause of justice and avoids further litigation. Similarly, Mr. Talukdar has referred to the decision of AIR 2001 SC 699 and particularly paragraph no.6 and he has submitted that though the application for amendment apparently appears to be barred by limitation, it could be allowed and the issue of limitation could be raised after allowing the amendment. Thus, Mr. Talukdar submits that a liberal approach should be taken at the time of consideration of the amendment and the learned Trial Judge should have allowed the application for amendment as a whole. With due respect to Mr. Talukdar, I am of the view that the learned Trial Judge has followed the directions of the learned appellate Court. The remand was not made an open one but with limited opportunity for amendment of the plaint for pre-emption by the petitioner on limited ground as observed by the learned appellate Court, that is, with regard to holdings of the land in case and the land of the petitioners. That portion of the amendment has been allowed by the impugned order, that is, the application for pre-emption lies on the ground of vicinity only. It was not an open remand at all to consider the other ground. The said three decisions relate to the general principles to be considered at the time of allowing the application for amendment in a general way. It was not an open remand at all to consider the other ground. The said three decisions relate to the general principles to be considered at the time of allowing the application for amendment in a general way. But the impugned order relates to amendment on the basis of the directions passed by the learned appellate Court. The learned Trial Judge was bound to follow the directions of the learned appellate Judge. This being the position, I am of the view that the learned Trial Judge is justified in allowing the application in part in conformity with the directions of the learned appellate Court. The petitioners did not pray for revision or otherwise to the higher forum against the order of the learned lower appellate Court and so the amendment was confined only with regard to the observations made in the judgment of the learned appellate Court and such direction has been followed by the learned Trial Judge. The revisional application was dismissed on the ground that it was not maintainable in view of the provisions of Section 115A of the C.P.C. Therefore, I am of the view that there is nothing to interfere with the impugned orders. This application is, therefore, meritless. It is, therefore, dismissed. Considering the circumstances, there will be no order as to costs. C.O. No.4263 of 2005 That application is also over the selfsame matter. In view of the observations made above, the application is held meritless. It is, therefore, dismissed. Considering the circumstances, there will be no order as to costs.