Ranjan Kumar Das vs Ganesh Chandra Manna

Sankar Prasad Mitra, J.—This Rule is directed against an order of the Third Additional District Judge, 24-Parganas, in Misc. Appeal No. 405 of 1969, made on October 9, 1969.

The facts of the case are that on July 29, 1963, a sale of paddy lands was effected. The Petitioner before us claims that he was entitled to make an application for pre-emption.. On October 22, 1963, Section 8 of the West Bengal Land Reforms Act came into force giving rights to co-sharers and other persons to claim pre-emption. The Bengal Tenancy Act was repealed on November 10, 1965. The Petitioner alleges that he came to know of the sale only on December 1, 1965. He made an application u/s 8 of the Bengal Land Reforms Act on December 7, 1965, which was marked as L.R. Case No. 109 of 1965-66 before the Sub divisional Land Reforms Officer, Alipore. This case was dismissed on August 1, 1966. The Petitioner preferred a pre-emption appeal being Appeal No. 3 of 1968 on January 8, 1968. There was an order for returning the Petitioner''s application and he was asked to file it in the Court of the Munsif. The Revenue Officer, in fact, returned the application u/s 8 on June 11, 1968. On the same date the Petitioner filed this application in the Sixth Court of the Munsif at Alipore which was recorded as Misc. Case No. 118 of 1968. The miscellaneous case was u/s 26F of the Bengal Tenancy Act and was dismissed on May 27, 1969, on merits as also on the ground of limitation. The Petitioner then filed a miscellaneous appeal being Appeal No. 405 of 1969 on October 9, 1969. This appeal was dismissed on the ground of limitation by the Third Additional District Judge, who did not go into the merits at all. Thereafter, on January 12, 1970, the Petitioner obtained the present Rule. The Rule was heard by Chakravarty J. on June 16, 1971, and his Lordship referred the matter to the Division Bench.

Mr. Biswas appearing for the opposite party No. 1 has argued before us that the Petitioner''s application for pre-emption could be entertained both by the Sub divisional Land Reforms Officer and the Munsif. He relies on the judgment of Chatterji J. in Narendra Nath Ghosh v. Krishnapada Mukhoti (1967) 71 C.W.N. 506 . Chatterji J. has held that the remedy of a co-sharer to apply for pre-emption was not barred by the issue of the notification by which Section 8 of the Land Reforms Act came into force. His Lordship is of the view that, though Rule 4, was subsequently amended, the amendment came after the application in the case before him filed and the remedy continued in spite of the amendment. Chatterji J. has held further that in spite of the repeal of the Bengal Tenancy Act, if some one had acquired any right under the provisions of Section 26F of that Act, read with Section 6(2) of the Estates Acquisition Act and Rule 4 of the Rules framed under the Estates Acquisition Act, he would not be deprived of his remedy. Hence, according to Chatterji J., the Civil Court also had jurisdiction to entertain the petition for pre-emption.

Before us these propositions have not been disputed at all by the counsel appearing for the Petitioner. It is conceded that, in the instant case,, both the Land Reforms Officer concerned and the Civil Court had jurisdiction to entertain an application for pre-emption. In this view of the matter the question arises as to whether the order which was passed on January 8, 1968, returning the Petitioner''s application for preemption for filing in the Court of the Munsif was an erroneous order. Obviously, it was. The next question that arises is whether by reason of this erroneous order the Petitioner should be made to suffer. The answer is in the negative. No litigant ought to suffer owing to the fault of the Court. This principle was affirmed by the Patna High Court in the case of Nandlal Singh and Another Vs. Mt. Baratan and Others, Prasad J. of the Patna High Court has held in this case that where the Plaintiffs rightly filed the plaint originally in the right Court, namely, the Court of the Munsif who had full jurisdiction to try it, the Plaintiffs cannot be prejudiced by any subsequent illegal order of the Munsif in returning the plaint for refilling it in any other Court. The Patna High Court says that the fact that the Plaintiffs did not raise any objection to the order and their lawyer actually received back the plaint and re-filed it, cannot alter the position that the suit must be deemed to have been filed within time in the right Court and it is not necessary for the Plaintiffs to call in aid Section 14 of the Limitation Act. The Patna High Court observes further that the suit should be deemed to have remained pending throughout and the fact that the plaint remained in the custody of the lawyer for two days would not affect the position.

The Madras High Court has taken the same view in Mohamed Sali Vs. Siluvai Arikkanjir Fernande (died) and Others, . It is observed:

It is a well-known proposition of law that a wrong order of the Court cannot act to the prejudice of the litigants. Therefore, the wrong order of the District Munsif, Tuticorin, returning the plaint for presentation to the proper Court cannot be held to prejudice the Plaintiff in this case. The suit should be deemed to be pending throughout in the right. Court whether it be in the Court of the District Munsif, Tuticorin, or the Court of the District Munsif, Nagercoil....

We are in agreement with the views expressed by the learned Judges of the Patna High Court and the Madras High Court in the cases above. Mr. Biswas made certain submissions based on Section 14 of the Limitation Act and relied on the Supreme Court''s decision in the case of Madhavrao Narayanrao Pdtwardkan v. Ram Krishna Govind Bhanu (1959) 1 S.C.A. 145. But we are of the opinion that Section 14 of the Limitation Act is not attracted to the facts of this case at all.

The position, therefore, is that the Petitioner must be deemed to have filed his application for pre-emption on December 7, 1965, which was well within the period of limitation and, as such, the Petitioner''s application for pre-emption cannot be defeated on the ground of limitation.

6.1 The Rule, therefore, is made absolute. The order of the Third Additional District Judge in the Miscellaneous Appeal No. 405 of 1969 passed on October 9, 1969, is set aside and the learned Additional District Judge, Third Court, is directed to hear and dispose of the appeal on merits.

Costs of this application will abide by the result of the appeal, cost of this hearing being assessed at five gold mohurs.

Let the records be sent down to the learned Additional District Judge, Third Court, Alipore, forthwith.

S.K. Datta, J.

I agree.