Dr. Abu Taleb Munshi vs Mstt. Meherunnessa Bibi and Others

Subhro Kamal Mukjerjee, J.—These three applications under Article 227 of the Constitution of India are preferred against the judgment and order dated July 11, 1997, passed by the learned District Judge at Barasat, District: 2.4 Parganss (North) in Civil Revision Case Nos. 80-82 of 1996 affirming the orders dated June 6, 1996 passed by the learned Munsif, Second Court at Basirhat, district: 24 Parganas (North) in Misc. Case Nos. 57-59 of 1994, inter alia, rejecting an application for review and/or recalling of orders dated April 1, 1995, allowing three applications for pre-emption filed by the opposite party No. 1 and for addition of this Petitioner in the aforesaid three applications for pre-emption.

The Petitioner in this three applications, Dr. Abu Taleb Munshi purchased 17 decimals of land from one Monmohan Golder by two registered deeds of sale dated August 5, 1991, and August 26, 1992. The said Monmohan Goldar sold 03 decimals of land to Chaptar Ali Mondal, 03 decimals of land to Mstt. Mo-mona Bibi, wife of the said Chaptar Ali Mondal, and 04 decimals of land to Monajul Mondal, a minor son of the said Chaptar Ali Mondal, by registered deeds of sale all dated. October 5, 1993. On January 17, 1994, Dr. Abu Taleb Munshi filed three applications for pre-emption under West Bengal Land Reforms Act, 1955 in the court of the learned Munsif, Second Court at Basirhat, District:24 Parganas (North) against the said three purchasers and the said proceedings were registered as Misc. Case Nos. 4-6 of 1994. In the aforesaid three Misc. Gases by an order dated January 21, 1994 the learned Trial Judge passed an ad-interim order directing maintenance of status quo in respect of the lands sought to be preempted.

On or about August 3, 1994, the opposite party No. 1 in these revisional application, Mstt. Meherunnessa Bibi, filed three applications for pre-emption against the said Chaptar Ali Mondal, his wife, Momena Bibi, and his minor son, Monajul Mondal, seeking to pre-empt the lands involved in the applications for pre-emption filed by the present Petitioner against the said three pre-emptees.

Under the provisions of Section 8 of the West Bengal Land Reforms Act, 1955 in the event several applications for pre-emptions are filed by contiguous raiyats in respect of the same land, as amongst raiyats possessing lands adjoining such holding preference shall be given to the raiyat having the longest common boundary with the land transferred.

However, the pre-emptees in the pre-emption applications filed by the-present opposite party No. 1 put up no defence and suffered orders of pre-emption. The pre-emptees even did not disclose there is an order of restrain by a comptetent court of law against them in the nature of the status quo, but on the contrary, even withdrawn the money deposited by the opposite party No. 1 in connection with her applications for preemption. Those applications for pre-emptions being Misc. Case Nos. 57-59 of 1994 have been allowed by orders dated April 1, 1995

On or about April 17, 1995, the present Petitioner filed an application under 0rder 1, Rule 10 read with Section 151 and under 0rder 47, Rule 1 of the CPC in Misc. Case Nos. 57-59 of 1994 pointing out the fraud practised upon the court by the pre-emptor and the pre-emptees in the said Misc. Case Nos. 57-59 of 1994 and prayed for recalling of the orders of pre-emption and for rehearing of the matters in his presence.

By the orders impugned learned Judges in the courts below rejected these applications holding, inter alia, that those applications were not maintainable. The learned District Judge expressed his doubt as to how such applications could be entertained after final disposal of the matters. However, it was observed, inter alia, that the present Petitioner may file suits for declaration challenging the orders pre-emption.

Against the said orders the present Petitioner has come up with these applications under Article 227 of the Constitution of India.

Mr. Gopal Chandra Mukjerjee, learned Advocate appearing for the Petitioners, submitted that since fraud has been practised on the court, it was the duty of the court to exercise its inherent powers to undue the wrong and in support of his contention cited the case of Arun Banerjee and Ors. v. Pushpalata Benerjee and Anr. (1999) 2 C.W.N. 176 where Bhaskar Bhattacharya, J., held The law is now settled that if in violation of an interim order passed in the suit, a party is dispossessed, the party aggrieved without filing a fresh suit can pray for restoration before the court where the suit is already pending. Therefore, when such application was heard in part, at that stage the court ought to have adjudicated such application for restoration before permitting the Plaintiff to abandon his suit.

Mr. Prasad Bagchi, learned Advocate, for the opposite party No. 1, strenuously argued that the applications filed by the Petitioner in the court below is not maintainable. However, Mr. Bagchi submitted that it was rightly pointed out by the learned District Judge that the Petitioner has a remedy by way of a suit to challenge the orders of pre-emption. Mr. Bagchi, further, submitted the present applications ate not maintainable, but the Petitioner may file appeals, against the orders of preemption as person aggrieved and/or interested.

I have carefully considered the facts of this case and in view of the admitted position that the Misc. Case Nos. 57-59 of 1994 Were filed after filing of the Misc. Case Nos. 4-6 of 1994 by the Petitioner, I am convinced that in order to frustrate the earlier applications for preemption filed by the Petitioner, the present Misc. Case Nos. 57-59 of 1994 were filed and as such the mechanical approach of the courts below, in deciding the applications filed by the. Petitioner is not justified.

Supreme Court of India in the case of Surjit and others Vs. Harbans Singh and others etc. etc., observed that when the court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the court orders otherwise. The court, in this circumstances, has the duty, as also the right, to treat the alienation/assignment as having not taken place at air for its purposes.

I am convinced that in Misc. Case Nos. 57-59 of. 1994 the pre-emptor and the pre-emptees obtained collusive orders against the real interested persons without impleading him a party although such person is vitally affected. The entire operation has been mani-pulated to defeat the interest of the justice which should never be permitted in law. There was no fair trial of the dispute.

Supreme Court of India in the case of D.N. Banerji Vs. P.R. Mukherjee and Others, inter alia, held that in case of flagrant violation of law or grave miscarriage of justice, the High Court is justified in interfering under Article 227 of the Constitution of India. In Trimbak Gangadhar Telang and Another Vs. Ramchandra Ganesh Bhide and Others, it has been held that the High Court is within its jurisdiction to exercise its power under Article 227 of the Constitution of India when the courts below passed an order in violation of the fundamental basis principles of justice and fair play or where a patent or flagrant error of procedure or law is crept in or where the order passed results in manifest injustice.

In view of my finding that the orders of preemption in Misc. Case Nos. 57-59 of 1994 have been obtained against the interest of the Petitioner without impleading him as a party and during subsistence of orders of restrain passed by a competent court of law, such orders of pre-emption are required to be set aside as those orders resulted in manifest injustice and were passed to defeat the claim, of the Petitioner.

I, accordingly, allow this applications under Article 227 of the Constitution of India, set aside the orders impugned order passed by the courts below and the orders dated April 1, 1985, allowing the applications for pre-emption filed by the opposite party No. 1 and remit Misc. Case Nos. 57-59 of 1994 back to the court below for further consideration on merits in accordance with law and direct addition of the Petitioner in those applications as a party, I, further, direct the learned trial judge to decide the Misc. Case Nos. 4-6 of 1994 and the present Misc. Case Nos. 57-59 of 1994 analogously in accordance with the provisions of West Bengal Land Reforms Act, 1955.

I, however, make it clear that I have not gone into the merits of the applications for pre-emptions filed by the parties.

There will be no order as to costs.

Xerox certified copy is applied for, be supplied to the parties, within two weeks from the date of making such applications.