Research › Search › Judgment

Calcutta High Court · body

2012 DIGILAW 809 (CAL)

Devdas Halder v. Sankar Biswas

2012-08-28

MRINAL KANTI CHAUDHURI

body2012
JUDGMENT Mrinal Kanti Chowdhury, J. 1. This revisional application is directed against Order No. 73 dated 7th May, 2011 passed by learned Civil Judge (Jr. Division, 1st Court, Baruipur, 24-Parganas (South) in Misc. Case No. 26 of 2005. By virtue of this order learned Court below rejected the petition dated 4th December, 2010 praying for vacating the order of striking out the defence passed by the learned Court below as well as the petition dated 7th August, 2010 filed by the revisionist challenging the maintainability of the Misc. Case for non depositing of the consideration amount together with ten per cent of the said amount. I have heard learned advocate for the revisionist (pre-emptee) as well as the learned advocates for the pre-emptee that the striking out the defence in the pre-emption case is unknown to law and learned Court had acted illegally and without jurisdiction in striking out the defence as well as refusing to vacate the order of striking out the defence. It is further submitted by the learned advocate for the revisionist that the pre-emptor/opposite party did not deposit the recorded consideration amount together with ten per cent of the said amount as per provision of section 8 of the West Bengal Land Reforms Act. 2. It is further submitted by the learned advocate that the pre-emptee filed petition challenging the maintainability of the case but his petition was rejected. As against the said order he preferred revisional application. Hon'ble High Court passed order directing the learned Court below to determine the actual amount of consideration money before passing final order. Since the said order was not complied with, the revisionist against filed petition challenging the maintainability of the Misc. Case. The said petition was also rejected by the learned Court below. Hence revisional application is filed by the present revisionist/pre-emptee. 3. On the other hand it is submitted by the learned advocate for the opposite parties pre-emptor that Hon'ble High Court rightly passed order directing the Court below to determine the actual amount of consideration money and for that purpose the evidences are to be recorded. Since the defence after pre-emptee was struck out, learned Court below fixed date for argument. On the other hand it is submitted by the learned advocate for the opposite parties pre-emptor that Hon'ble High Court rightly passed order directing the Court below to determine the actual amount of consideration money and for that purpose the evidences are to be recorded. Since the defence after pre-emptee was struck out, learned Court below fixed date for argument. It is further submitted that the revisionist/pre-emptee did not challenge the order of learned Court below whereby learned Court below allowed time as last chance on 12th April 2007 for bringing stay order of Hon'ble Court. 4. I have heard rival submissions made by the learned advocates of both the parties. I have perused the impugned judgment and also materials on record as well as the decision of law cited from the advocates of opposite party/pre-emptor. 5. On careful perusal of the materials on record it appears that the pre-emptor/ opposite party filed Misc. Case bearing No. 26 of 2005 on 28th February 2005 by depositing Rs. Sixty thousand towards consideration money on the ground for inflated price was recorded in the deed itself. Opposite party/ revisionist filed a petition challenging the maintainability of the Misc. Case for non-deposit of recorded consideration amount together with ten percent of the said consideration money. This petition was filed on 18th March, 2006. This petition was rejected by learned Court below on 16th December 2006. 6. As against the order the revisionist preferred revision vide No. C.O. 803 of 2007. The said revision application was disposed of vide order dated 12th March, 2010 by this Court with direction to the learned Court below to determine the exact consideration amount first before it proceeds to pass final order in that application. However, order dated 16th December, 2010 was not interfered with but will not stand in the way of such determination. 7. On 19.01.2007 this revisionist/pre-emptee prayed for stay all further proceedings and again on 6th March, 2007 this revisionist also prayed for stay of the proceedings. Learned Court below allowed time on 12th April, 2007 as last chance for bringing stay order from the Hon'ble Court in default learned Court below observed that defence would be struck out. Since the revisionist could not bring the stay order the defence was struck out vide Order No. 29 dated 28th April, 2007. 8. Learned Court below allowed time on 12th April, 2007 as last chance for bringing stay order from the Hon'ble Court in default learned Court below observed that defence would be struck out. Since the revisionist could not bring the stay order the defence was struck out vide Order No. 29 dated 28th April, 2007. 8. On the point of striking out of the defence by the learned Court below, no cogent reason has been assigned. In West Bengal Premises Tenancy Act, there is no provision of law in the West Bengal Land Reforms Act specially in the case of under sections 8 and 9 of the West Bengal Land Reforms Act to strike out the defence of the pre-emptee. 9. In case the pre-emptee fails to bring any stay order of Hon'ble Court, the natural consequence is to proceed with the pre-emption case in accordance with law. Defence cannot be struck out at all. Merely because the revisionist did not challenge the order of learned Court below whereby the learned Court below on 12th April, 2007 allowed last chance for bringing stay order, the same cannot at all result in the fact that defence will automatically struck off. Therefore, I am constrained to hold that learned Court below acted illegally in exercise of the jurisdiction. Therefore, the said portion of the order is set aside. 10. The petition filed by the revisionist dated 4th December 2010 refusing to vacate the order of striking out of the defence is, therefore, set aside. 11. With regard to the remaining portion of the order, Order No. 73 dated 7th May 2011, it is apparent from the materials on record that on the petition dated 18th March 2006 challenging the maintainability of the Misc. case for not depositing of consideration amount was rejected by the learned Court below on 16th December, 2006. The revisionist preferred a revisional application being C.O. No. 803 of 2007. This Court vide order dated 12th March 2010 directed the learned Court below to determine the exact amount of consideration money passed final order in the application. 12. Therefore, learned Court below is duty bound to comply with the said order. The revisionist preferred a revisional application being C.O. No. 803 of 2007. This Court vide order dated 12th March 2010 directed the learned Court below to determine the exact amount of consideration money passed final order in the application. 12. Therefore, learned Court below is duty bound to comply with the said order. Section 9(1) of the West Bengal Land Reforms Act provides that on the deposition mentioning in sub-section (1) of section 8 being made, the Court shall also give notice of the application to the transferee, and shall cause a notice to affix on the land for the information of persons interested. On such notice being served, the transferee or any person interested may appear within the time specified in the notice and proved the consideration money paid for the transfer and other sums, if any, on the property paid by him in respect of the lands including any sum paid. The Court below may after such enquiry as he considers necessary direct the applicant to deposit such further sum, if any, within the time specified by him and on such sum being deposited, he shall make an order that the amount of the consideration money together with such other sums are proved to have been paid by the transferee or the person interested plus ten per cent of the consideration money be paid to the transferee from the person interested out of the money in deposit, the remainder, if any, being refunded to the applicant. The Court below shall then made a further order that the portion or share of the plot of land be transferred to the applicant and on such or being made, the portion or the share of the plot of land shall vest in the applicant. The provision of law is to the effect that in case of any dispute with regard to any consideration amount, matter shall be enquired into and determine by the Court below as it thinks fit and proper in accordance with law. 13. In the present case while disposing of the application bearing No. C.O. 803 of 2007 this Court passed the same order and the compliance of the said order is awaiting. 13. In the present case while disposing of the application bearing No. C.O. 803 of 2007 this Court passed the same order and the compliance of the said order is awaiting. In support of the said provision of law as incorporated under section 9(1) of the West Bengal Land Reforms Act together with the order passed in C.O. 803 of 2007, learned advocate for the pre-emptor cited several decisions of law which are so well settled that those decisions can not be interfered with. The doctrine of stare decisis as provided in Shankar Raju vs. Union of India reported in (2011) 2 SCC 132 is sharply applicable. In the decision reported in 1998 CWN 758 (Sahid Ali vs. Abul Kasem) it has been clearly laid down that in case of dispute as to the amount of consideration money the matter is enquired into by the Court below. Section 9, however, makes the provision for the proof of actual amount paid by the transferee for the transfer in that favour along with other sum. Therefore, the enquiry for truth and correctness of such amount is to be made in case of such dispute. 14. Similarly in a decision reported in 1986 (1) CLJ 170 (Sadhan Chandra Samanta & Ors. vs. Jaladhi Bala Dasi and Anr.) similar principle of law has also been cited. 15. In a decision reported in AIR 1972 Cal 409 (Dwijapada Haldar vs. Prafulla Chandra Haider), it has been clearly held that while consideration money is disputed the matter is enquired into by the Court concerned and thereafter passed directed to deposit the balance amount, if any, within such time as specified by the Court below. The aforesaid decisions of law as cited by the learned advocate of the pre-emptor/opposite parties are so settled that those cannot be interfered with at all and nothing has been stated by the learned advocate for the pre-emptee on the aforesaid decision of law. Since the matter of determination of the consideration amount is awaiting for compliance of the learned Court below, it would be pro-mature to dispose of the petition challenging the maintainability of the Misc. case filed by the revisionist on 7th August, 2010. However, learned Court below is not justified to observe that the point of maintainability on the ground of non-deposit of consideration amount was disposed of in the revisional application bearing No. C.O. 803 of 2007. 16. case filed by the revisionist on 7th August, 2010. However, learned Court below is not justified to observe that the point of maintainability on the ground of non-deposit of consideration amount was disposed of in the revisional application bearing No. C.O. 803 of 2007. 16. The revisional application was disposed of by this Court passing direction upon the learned Court below to determine the amount of consideration and thereafter passed a final order. The petition dated 7th August 2010 is pre-mature one. The said application requires to be determined in case the pre-emptor refuses or does not comply with the order of learned Court below for depositing further amount of money after enquiry. Since the order of striking out of the defence was passed by learned Court below, consequently the revisionist prayed for vacating the order striking out of defence. Since the order of striking out the defence and the order of rejection for vacating the said order have been set aside in view of the above mentioned observation, learned Court below shall give opportunity of both the parties to advance and adduce evidence for holding enquiry and determine the actual consideration amount and therefore, comply the order passed in C.O. 803 of 2007 and thereafter proceed to pass final order in accordance with law. 17. The revisional application is accordingly disposed of. 18. No order as to costs. Urgent photostat certified copy of this judgment be supplied to the parties, if applied for, subject to compliance with all necessary formalities.