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2014 DIGILAW 16 (CAL)

Sankari Bala Santra v. Tapan Kumar Ghana

2014-01-15

TARUN KUMAR GUPTA

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Judgment : Tarun Kumar Gupta, J. This revisional application is directed against judgment dated 22nd of November, 2011 passed by Hon’ble Justice Md. Abdul Ghani in C. O. No.3946 of 2009. By the order impugned learned Single Judge allowed said revisional application by way of granting an order of pre-emption in respect of subject land in favour of O. P. No.1 –4. The admitted position of the case is that O. P. Nos. 1 – 4 filed an application for pre- emption under Sections 8 and 9 of the West Bengal Land Reforms Act, 1955 (hereafter to be referred as an Act of 1955) against present petitioner purchaser vide J. Misc. Case No.40 of 2002 in the trial court. After contested hearing learned trial court dismissed said claim of pre-emptor co-sharers on the ground of limitation. The O. P. pre-emptors filed an appeal being Misc. Appeal No.7 of 2009 which was also dismissed by the learned Appellate Court on the same ground. Being aggrieved with said order of learned Appellate Court O. P. pre-emptors filed said revisional application being C. O. 3946 of 2009. After contested hearing learned single Judge of this court allowed the same. Learned Single Judge was of the opinion that as the preemptors were non-notified co-sharers they were entitled to file the petition for pre-emption within three years by invoking Article 137 of the Limitation Act, 1963 from the date of transfer. In the case in hand, the transfer took place on 12.12.1999 and the registration of the deed was finalized on 13.12.1999 and the case for pre-emption was filed on 3rd October, 2002 i.e. after two years nine months and nineteen days and accordingly learned Single Judge opined that the case was filed within time and hence the pre-emptors were entitled to get an order of preemption. Mr. Aniruddha Chatterjee along with Mr. Kushal Chatterjee appearing for the petitioner pre-emptee submits that the impugned judgment of learned single Judge suffers from error apparent on the face of the record as he applied a wrong test of limitation by applying Article 137 of the Limitation Act though as per provisions of the Act of 1955 the period of limitation was only three months. Mr. Chatterjee next submits that the words “sufficient reason” in Order 47 Rule 1 of the Code of Civil Procedure are quite wide to include a misconception of fact or law. Mr. Chatterjee next submits that the words “sufficient reason” in Order 47 Rule 1 of the Code of Civil Procedure are quite wide to include a misconception of fact or law. In support of his contention he refers case laws reported in AIR 1958 SC 875 (M. K. Venkatachalam, I. T. O. and another vs. Bombay Dyeing and Mfg. Co. Ltd.) and (2005) 4 SCC 741 (Board of Control for Cricket in India and another vs. Netaji Cricket Club and others). He next refers a case law reported in 2009 (4) CHN 197 (Prasanna Kumar Nag & Ors. vs. Prokash Chandra Poddar @ Jaiprokash Poddar) to impress upon this Court that it was already decided in said case by one of the Hon’ble Judges of this Court that the limitation for filing a case of pre-emption under Sections 8 and 9 of the Act of 1955 by a non-notified co-sharer is one year from the date of completion of sale under Article 97 of the Limitation Act. He also refers a case law reported in 2005 (1) CHN 140 (Aparna Ghosh & Anr. vs. Sarupchand Roychowdhary & Ors.) to submit that even if it is admitted for argument’s sake that no notice in terms of Section 5 of the Act of 1955 was served upon the pre-emptors, even then it cannot exceed one year as envisaged under Article 97 of the Limitation Act, from the date of knowledge of said sale. He lastly refers the case law reported in 2013 (2) CHN (CAL) 671 (Ajit Mondal vs. Tapan Kumar Ghana) wherein it was held that non-notified co-sharer should file the case of pre-emption under the Act of 1955 within three months from the date of his knowledge of the transfer. Mr. Uttam Bhattacharya appearing for the O. P. pre-emptors, on the other hand, submits that the case of Ajit Mondal (supra) has no application in this case as it was decided on 11th of April, 2013 i.e, subsequent to the decision in this case. He next submits that the case of Prasanna Kumar Nag and others (supra) is a Single Bench judgment of this High Court and as such it had no binding force on another Single Bench. He next submits that said case law was not also referred before the court concern for consideration. He next submits that the case of Prasanna Kumar Nag and others (supra) is a Single Bench judgment of this High Court and as such it had no binding force on another Single Bench. He next submits that said case law was not also referred before the court concern for consideration. According to him, in the other case laws as referred it was no where stated that the period of limitation for filing of pre-emption by non-notified co-sharer was not three years as envisaged under Article 137 of the limitation Act. According to him, this court at the time of hearing a review application cannot act as an appellate court and the error, if any, being not apparent on the face of the record cannot be interfered. Admittedly, the judgment impugned was passed on 22nd of November, 2011. The judgment in the case of Ajit Mondal (supra) passed on 11th of April, 2013 cannot be of any help to the petitioner pre-emptee. In the Supreme Court judgments of M. K. Venkatachalam (supra) and BCCI and another (supra) it was only held that the words “sufficient reason” in order 47 Rule 1 of the Code of Civil Procedure are wide enough to include a misconception of law also. On plain reading of order 47 rule 1 (1) of the Code of Civil Procedure it is clear that an error apparent on the face of the record must be such a patent error, be it factual or legal, which in one glance can be detected without advancing long drawn arguments on either side. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where error on a substantial point of law stares one in the face, and there can reasonably be no two opinions, clear case of error apparent on the face of the record would be made out. Erroneous view of law on the debatable point or a wrong exposition or wrong application of law does not come within the purview of review under Order 47 Rule 1 of the Code of Civil Procedure. Learned single Judge admittedly stated that the transfer in question took place on 12.12.1999 and the registration of the deed was held on 13.12.1999. Erroneous view of law on the debatable point or a wrong exposition or wrong application of law does not come within the purview of review under Order 47 Rule 1 of the Code of Civil Procedure. Learned single Judge admittedly stated that the transfer in question took place on 12.12.1999 and the registration of the deed was held on 13.12.1999. Admittedly, no notice under registered post as envisaged under Section 5 of the Act of 1955 was served upon the pre-emptors though, a notice under certificate of posting was sent to them. The preemptors filed a partition suit being Title Suit No.54 of 1998 in respect of suit plots and other plots wherein pre-emptee was a party defendant. By amendment of plaint made on 28th of February, 2000 the fact of transfer of the case land through a kobala dated 13th of December, 1999 in favour of pre-emptee was categorically inserted. According to the learned Single Judge no time frame was prescribed within the four corners of the Act of 1995 for filing an application for pre-emption by a non-notified co-sharer. According to learned Judge said period should have been three years under Article 137 of the Limitation Act from the date of transfer. Said proposition of law as laid down by learned Single Judge in the order impugned may be wrong. But at the time of hearing of a review application it has to be shown that the error, be factual or legal, was apparent on the face of the record. Learned counsels of the petitioner pre-emptees failed to produce a single authority to show that it was decided either by Hon’ble Apex Court or by Hon’ble Division Bench of this High Court that period of limitation for filing an application for preemption under Act of 1955 by a non-notified co-sharer was not 3years under Article 137 of the Limitation Act. It is true that in the case of Prasanna Kumar Nag and others (supra) another Single Judge of this High Court observed that the period of limitation for filing an application for pre- emption on the ground of co-sharership by a non-notified co-sharer will be one year from the date of completion of said sale under Article 97 of the Limitation Act. But said case law was not referred before the Single Judge at the time of hearing of the argument. But said case law was not referred before the Single Judge at the time of hearing of the argument. As said judgment of another single Judge was not referred before the Court, learned Single Judge had no occasion to discuss said judgment of Prasanna Kumar Nag and others (supra). Not following a judgment of a co-ordinate Bench which was not also referred, cannot be said to be an error apparent on the face of the record. Accordingly, I am of the opinion that the order impugned cannot be said to be suffering from an error apparent on the face of the record. As such the review application is not maintainable. The review application is hereby dismissed on contest. However, this order of dismissal will not prevent the petitioner pre-emptee to move the appropriate forum against the judgment of learned Single Judge according to law. I pass no order as to costs.