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Case Number

(Under Art. 227 of the Constitution) No. 1242 of 1976

Attorney(S)

S.P. Roy Chowdhury
Ashoke De
Ranjit Kr. Banerjee and Abhijit Banerjee

Judges

M.M Dutt
D.C Chakravorti, JJ.

Acts

S. 8 of the West Bengal Land Reforms Act, 1955
WEST BENGAL ESTATES ACQUISITION ACT 1953

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Smart Summary

Structured Summary of the Opinion (M.M. Dutt, J.)

Factual and Procedural Background

The Rule arises from an application under Article 227 of the Constitution challenging an order of the Subordinate Judge, Balurghat, which on appeal allowed an application for pre-emption by the opposite party. The petitioner had purchased portions of plot no. 2867 (a raiyati holding) by two deeds both dated 8 December 1972 from two co-sharers. On 20 March 1973 the opposite party, a co-sharer by purchase, applied for pre-emption under S. 8 of the West Bengal Land Reforms Act, 1955. On 19 January 1974 the opposite party sought leave to amend her application for pre-emption to add an alternative ground — pre-emption on the basis of vicinage (contiguity) under S. 8.

The Learned Munsif allowed the amendment (by order No. 14 dated 2 March 1974) subject to a caveat that if the amendment introduced a new cause of action it would not save limitation. At final hearing the Learned Munsif found, applying a Full Bench decision in Madan Mohan Ghosh v. Sishubala Atta (76 CWN 1058), that the opposite party was not a co-sharer and therefore the pre-emption claim on that basis was not maintainable; the Munsif dismissed the application for pre-emption and did not deal with the vicinage ground incorporated by amendment.

The opposite party appealed. The Learned Subordinate Judge considered the vicinage ground, overruled the petitioner's contention that the amendment introduced a new cause of action beyond the period of limitation, and allowed the pre-emption claim on the ground of vicinage, setting aside the Munsif's order. The petitioner challenged the Subordinate Judge's order by obtaining the instant Rule under Article 227.

Legal Issues Presented

Whether the Learned Subordinate Judge was justified in allowing the opposite party's application for amendment to claim pre-emption on the ground of vicinage after the period of limitation had expired.
Whether the amendment introduced a new case based on a new cause of action (and thus was barred by limitation) or whether it was an allowable amendment that did not alter the cause of action.
Whether, before allowing pre-emption, the applicant was required to satisfy the Court that acquisition by pre-emption would not cause the applicant's holding to exceed the limit prescribed by S. 14-M of the Act, and whether the Learned Subordinate Judge erred in making no finding on that point.

Arguments of the Parties

Petitioner's Arguments

The amendment introduced, beyond the period of limitation, a new cause-of-action — i.e., a different basis for claiming pre-emption (vicinage) — and therefore the Learned Subordinate Judge acted in excess of his jurisdiction by allowing the amended claim.
The Learned Subordinate Judge should not have allowed the amendment because the new ground (vicinage) would have been time-barred if a fresh suit had been instituted for that ground.
The Learned Subordinate Judge failed to make the necessary inquiry or finding that the transfer, if pre-emption were allowed, would not cause the opposite party's holding to exceed the limit specified by S. 14-M of the Act.

Opposite Party's Position (as reflected in the opinion)

The opposite party initially claimed pre-emption as a co-sharer; after the Full Bench decision in Madan Mohan Ghosh (which altered the legal landscape concerning co-sharers), she amended to claim pre-emption on the ground of vicinage — the change was made because of that decision.
Implicitly, the opposite party's amendment sought to keep the same core claim (pre-emption arising from a transfer of a portion of the holding to a stranger) while altering the supporting ground from co-sharer status to vicinage.
The opposite party (in affidavit-in-opposition) averred she is owner and in possession of 10 acres and has a family of seven, which the Court took to bear on the S. 14-M limit point, and the petitioner did not file an affidavit denying that averment.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Madan Mohan Ghosh v. Sishubala Atta, 76 CWN 1058 (Full Bench)	Held that on vesting under the West Bengal Estates Acquisition Act, 1953 the raiyats ceased to be co-sharers and holdings were split up; thus the right of pre-emption as a co-sharer (S. 26F Bengal Tenancy Act) could not arise.	The Munsif relied on this Full Bench decision to find the opposite party was not a co-sharer and dismissed the original co-sharer based pre-emption claim. The Court accepted that this decision explained why the opposite party sought to amend to a vicinage ground.
A.K. Gupta & Sons Ltd. v. Damodar Valley Corporation, AIR 1967 SC 96	The expression "cause-of-action" for amendment purposes means a new claim constituted by new facts; an amendment introducing a claim based on the same cause-of-action may be permitted even if the new claim would otherwise be time-barred.	The Court relied on this Supreme Court decision to conclude that the amendment to add vicinage did not introduce a new cause-of-action because the basic cause (the transfer of portion of the holding to a stranger) remained the same.
L.J. Leach & Co. Ltd. v. Zardine Skinner & Co., AIR 1957 SC 357	Authority recognising that an amendment changing the nature of relief (e.g., conversion of claim for conversion into breach of contract) may be allowed even if the added claim is time-barred, where it arises from the same cause-of-action.	Cited by the Court as a precedent supporting the principle applied from A.K. Gupta that amendments of claims flowing from the same cause-of-action can be allowed despite limitation objections.
Charan Das v. Amir Khan, AIR 1921 PC 50	Example where an amendment adding a claim for possession (barred by limitation) was allowed in a suit originally for declaration of right of pre-emption.	Used to show historical precedent for allowing amendments that add claims intimately connected with the original cause-of-action in pre-emption contexts.
Gurmukh Singh v. Dalip Singh, AIR 1971 Punjab & Haryana 418	A Single Bench view that an amendment introducing a new ground of pre-emption beyond the period of limitation (a new cause-of-action) should not be allowed.	The Court considered and respectfully disagreed with this decision, stating the Single Bench's view appeared to treat the new ground as a new cause-of-action, contrary to the principles applied in A.K. Gupta.
Mst. Gulab Bibi v. Smt. Shakuntala Devi, AIR 1963 Jammu & Kashmir 82	Held that amendment introducing a new ground for pre-emption (after a prior ground fell) did not alter the nature of the suit for pre-emption; the suit remained one for pre-emption.	The Court treated this decision as analogous and supportive: the amendment to add vicinage did not change the character of the proceeding and therefore was not a forbidden new cause-of-action.
Jai Jai Ram Manohar Lal v. National Building Material Supply, AIR 1969 SC 1267	General principle: procedural rules are subservient to justice; amendments should be allowed unless mala fide or causing uncompensable injury to the opponent.	The Court invoked this principle to emphasize that amendments are to be liberally allowed unless they cause injustice; it applied that test here and found no injustice to the petitioner.
Bisweswar Bajpai & Ors. v. Jajneswar Bajpai & Anr., AIR 1968 Cal 213	Bench observation that the Court's power to allow amendments is not circumscribed by the law of limitation; a Court may permit amendments even if they are technically beyond the limitations period.	The Court relied on this provincial Bench decision to support the conclusion that the Subordinate Judge properly exercised discretion to allow amendment despite being made after limitation had run.

Court's Reasoning and Analysis

The Court framed the central analytical question as whether the amendment to add vicinage as a ground for pre-emption introduced a new cause-of-action (and thus was barred by limitation) or whether it merely added a new ground in support of the same cause-of-action.

The Court analyzed the statutory accrual of the right to pre-empt under S. 8 of the West Bengal Land Reforms Act, 1955: the cause-of-action for pre-emption arises on the transfer of a portion of a holding to a person other than a co-sharer; this same transfer also gives rise to a right of pre-emption to a raiyat possessing adjoining land (vicinage). Thus the essential cause-of-action in both the original and amended claims was the same transfer of a portion of the holding to a stranger.
The Court applied the Supreme Court's articulation in A.K. Gupta & Sons Ltd. v. Damodar Valley Corporation that "cause-of-action" for amendment purposes means a new claim constituted by new facts. The Court held that the amendment here did not introduce new facts constituting a new cause-of-action but only introduced a new legal ground (vicinage) for the same factual event (the transfer).
Considering authorities that allow amendments where the claim flows from the same cause-of-action (L.J. Leach; Charan Das), the Court concluded the amendment was permissible. It expressly disagreed with the Single Bench view in Gurmukh Singh which treated the new ground as a new cause-of-action, finding that view inconsistent with the precedent relied upon.
The Court also invoked broader procedural principles from Jai Jai Ram Manohar Lal that amendments are to be liberally permitted unless mala fides or irreparable prejudice exist, and the local Bench decision in Bisweswar Bajpai that limitation does not necessarily circumscribe the power to allow amendments. Applying those principles, the Court evaluated justice between the parties: it found that allowing the amendment caused no injustice to the petitioner and was justified by the circumstance that the opposite party had been advised to amend in the light of the Full Bench decision.
On the S. 14-M point (limit on holding size), the Court noted the petitioner had argued that no finding was made by the Subordinate Judge that acquisition by pre-emption would not cause the opposite party's holding to exceed statutory limits. The Court found there was evidence acceptable on the record — specifically the opposite party's affidavit-in-opposition stating ownership and possession of 10 acres with family of seven — and the petitioner did not file an affidavit denying this. On that basis (and noting the point had not been argued below), the Court saw no merit in the contention and accepted that the transfer would not exceed S. 14-M limits.

Weighing precedent, statutory structure and equitable considerations, the Court concluded the Learned Subordinate Judge acted in accordance with justice, equity and good conscience in allowing the amendment and the claim on the ground of vicinage.

Holding and Implications

Holding: The order of the Learned Subordinate Judge is affirmed and the Rule under Article 227 is discharged. There will be no order as to costs.

Implications:

Direct effect on the parties: The Subordinate Judge's allowance of the amendment and the consequent grant of pre-emption to the opposite party on the ground of vicinage is sustained; the petitioner's challenge to that order is dismissed.
Procedure and limitation: The Court held that adding a new ground (vicinage) that arises out of the same factual nucleus (the transfer of a portion of the holding to a stranger) does not constitute a new cause-of-action and may be allowed even if the amendment is made after the period of limitation, provided no injustice or irreparable prejudice is caused to the other side.
Statutory compliance (S. 14-M): The Court accepted the opposite party's uncontradicted averment as sufficient to conclude that acquisition by pre-emption would not exceed the S. 14-M limit; the petitioner's objection on this point was rejected on the existing record.
Precedential posture: The Court applied and reconciled existing precedents rather than laying down a novel legal rule; the decision affirms a permissive approach to amendments where the underlying cause-of-action remains the same and no injustice ensues.

Judge D.C. Chakravorti concurred. The Rule was discharged.

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Sri Debabrata Bhowmick v. Sm. Nani Bala Some

M.M Dutt, J.:— This Rule, which arises out of an application under Article 227 of the Constitution, is directed against the order of the Subordinate Judge, Balurghat, allowing on appeal the application for pre-emption of the opposite party. The principal question that is involved in this Rule is whether the learned Subordinate Judge was justified in allowing the application for amendment filed by the opposite party.

2. By two deeds of sale, both dated December 8, 1972, the petitioner purchased portions of plot no. 2867 appertaining to a raiyati holding, from two co-sharers of the same. On March 20, 1973, the opposite party, who is a co-sharer of the holding by purchase, made an application for pre-emption under S. 8 of the West Bengal Land Reforms Act, 1955 against the petitioner. On January 19, 1974, the opposite party made an application for amendment of the application for pre-emption. In the application for pre-emption, the opposite party claimed that she was a co-sharer and, as such, she was entitled to pre-empt the petitioner. By the application for amendment, the opposite party claimed to pre-empt the petitioner on the ground of vicinage as provided in S. 8 of the Act. The Learned Munsif by his order No. 14 dated March 2, 1974 allowed the said application ‘subject to the condition that in case of new cause-of-action, this amendment will not save any limitation.’ At the final hearing of the application for pre-emption, the learned Munsif came to the finding that in view of the decision of the Full Bench of this Court in Madan Mohan Ghosh v. Sishubala Atta 76 CWN 1058 the opposite party was not a co-sharer of the holding and, accordingly, the application for pre-emption was not maintainable. It appears that the learned Munsif did not deal with the claim of the opposite party for pre-emption on the ground of vicinage which was incorporated in the application for pre-emption by amendment of the same. Be that as it may, in view of the said finding the learned Munsif dismissed the application for pre-emption.

3. The opposite party preferred an appeal which was heard by the learned Subordinate Judge. The learned Subordinate Judge considered the case of the opposite party for pre-emption on the ground of vicinage. He overruled the contention of the petitioner that the amendment should not be allowed, for it introduced a new cause-of-action beyond the period of limitation. The learned Subordinate Judge found that on account of the said Full Bench decision in Madan Mohon Ghosh's case (supra), the opposite party was advised to add the new ground for pre-emption. He also took the view that the amendment did not add any new cause-of-action, and that in any event, the addition of a new ground after the expiry of the period of limitation would not do any injustice to the petitioner. Upon the said findings, the learned Subordinate Judge set aside the order of the learned Munsif and allowed the claim of the opposite party for pre-emption on the ground of vicinage. The petitioner felt aggrieved by the said order of the learned Subordinate Judge and obtained the instant Rule.

4. Mr. Shyama Prosanna Roy Chowdhury, learned Advocate appearing on behalf of the petitioner has strenuously urged that by the amendment the opposite party having made a new case on a new cause-of-action beyond the period of limitation, the learned Subordinate Judge acted in excess of his jurisdiction in allowing the claim of the opposite party for pre-emption on the ground of vicinage. It is not disputed that the opposite party became a co-sharer by purchase in the year 1953. In Madan Mohon Ghosh's case (supra), it has been held by the Full Bench that on the date of vesting under the West Bengal Estates Acquisition Act, 1953, the raiyats of a holding ceased to be co-sharers and the holding is split up into separate holdings, and that accordingly, the question of exercise of the right of pre-emption under S. 26F of the Bengal Tenency Act cannot arise, for, the condition precedent to the exercise of the right of pre-emption under that section being that the person exercising that right must be a co-sharer of the person making the transfer. The said Full Bench case was disposed of on July 28, 1972, that is, a few months before the application for pre-emption was filed by the opposite party. It seems that the opposite party or his lawyer was not aware of the effect of the said Full Bench decision and so he originally claimed for pre-emption on the ground of her being a co-sharer of the holding by purchase. It is true that in the application for amendment there is no indication that the opposite party was not aware of the Full Bench case, but we are in agreement with the observation of the learned Subordinate Judge that owing to the said Full Bench decision, the opposite party was advised to add the new ground for preemption by amendment.

5. The question is whether by claiming pre-emption on the ground of vicinage under S. 8 of the Act, the opposite party has sought to make out a new case on a new cause-of-action. In A.K Gupta & Sons Ltd. v. Damodar Valley Corporation, AIR 1967 SC 96, it has been observed by Sarkar J. (as he then was) that the expression “cause-of-action” for the purpose of amendment only means, a new claim made on a new basis constituted by new facts. In the case before the Supreme Court, the appellant filed a suit against the respondent only claiming a declaration that on a proper interpretation of a clause in the works contract it was entitled to enhance 20% over the tendered rates, as the sole difference between the parties was about interpretation. Subsequently by an amendment, the appellant claimed the recovery of the sum of Rs. 65,000/- or such other amount which might be found due on proper account being taken. Admittedly, the claim for the recovery of Rs. 65,000/- was barred by limitation on the date the amendment was prayed for. The Supreme Court observed that the amendment sought to introduce a claim based on the same cause-of-action, that is, the same contract. The amendment was allowed by the Supreme Court and the judgment of the High Court in so far as it refused the amendment was set aside. The Supreme Court relied on its earlier decision in L.J Leach & Co. Ltd. v. Zardine Skinner & Co. AIR 1957 SC 357, where a suit for damages for conversion was by amendment allowed to be converted into a suit for damages for breach of contract after that claim had become barred. Again, in Charan Das v. Amir Khan, AIR 1921 PC 50, an amendment adding a claim for possession after a suit for such claim had become barred was allowed in a suit which was originally a suit for declaration of a right of pre-emption.

6. In view of the said decision of the Supreme Court in A.K Gupta's case referred to above, let us see whether by the amendment, the opposite party seeks to introduce a new claim on a new cause-of-action. Under S. 8 of the Act, the right of a co-sharer raiyat to make an application for pre-emption arises on the transfer of a portion or share of a holding to any person other than a co-sharer in the holding. On such transfer, the right of pre-emption under S. 8 also accrues to a raiyat possessing land adjoining such holding. In other words, the accrual of the right to pre-empt under S. 8 is the accrual of a cause-of-action for the exercise of that right. When the opposite party asked for pre-emption on the ground of her being a co-sharer of the holding, the cause-of-action was the transfer of the portion of the holding to person other than a co-sharer. The claim to pre-emption made by the opposite party on the ground of vicinage by the amendment of the application, did not change the cause-of-action which remained the same, namely, the transfer of a portion of the holding to a stranger. The claim is also the same in both the cases, namely, a claim for pre-emption. Only the ground in support of the said claim is a new one, that is, the ground of vicinage. So considered from the point of view of the principles laid down by the Supreme Court in A.K Gupta's case (supra), the amendment has neither changed the cause-of-action, nor a new claim has been introduced by the same.

7. Much reliance has been placed on behalf of the petitioner on a Single Bench decision of the Punjab & Haryana High Court in Gurmukh Singh v. Dalip Singh AIR 1971 Punjab & Haryana 418. In that case, the original claim for pre-emption was based on relationship and by amendment the plaintiffs sought to introduce beyond the period of limitation a new ground for such claim, namely, a superior right of pre-emption. The learned Chief Justice of the Punjab and Haryana High Court took the view that as the claim based on a new ground would have been time barred if a suit had been brought, the amendment should not have been allowed. It seems that the learned Chief Justice thought that the introduction of the new ground was introduction of a new case on a new cause-of-action. In view of the reasons already stated, most respectfully we are unable to subscribe to the view expressed in the said case.

8. In this connection, we may refer to a Bench decision of the Jammu and Kashmir High Court in Mst. Gulab Bibi v. Smt. Shakuntala Devi AIR 1963 Jammu & Kashmir 82. In that case, what happened was that the plaintiff filed a suit for possession of the suit property on the ground that he had a right of pre-emption based on contiguity. During the pendency of the suit, the law of pre-emption based on contiguity was held void by the Supreme Court and the High Court, as it was repugnant to Article 19(1)(f) of the Constitution. Immediately, the plaintiff filed an application for amending the plaint so as to pre-empt the property on the basis of a right of easement, but he did not mention in the application that the amendment was sought for, because a right of contiguity had been declared ultra vires Article 19. It was held that the amendment sought in the case did not alter the nature of the suit because even after such amendment, the suit would still be a suit for pre-emption. The facts of this case are somewhat similar to the facts of the instant case, for in both, a new ground for preemption was introduced by amendment. In our view, also the amendment made by the opposite party claiming pre-emption on the ground of vicinage did not change the nature and character of the proceeding for pre-emption, nor did it introduce a new and inconsistent case.

9. The Supreme Court in Jai Jai Ram Manohar Lal v. National Building Material Suply, Gurgaon, AIR 1969 SC 1267 observed as follows:

“Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.”

10. In our view, when an application for amendment is made beyond the period of limitation, the Court is to consider whether by refusing such amendment an injustice will be made to the party seeking the amendment and also whether by granting such amendment an injury would be caused to the other side. We may also refer to a Bench decision of this Court consisting of P.N Mookerjee A.C.J and A.C Gupta, J. (as he then was) in Bisweswar Bajpai & Ors.…Plffs.-Apllnts; v. Jajneswar Bajpai & Anr.…Defts-Respdts. AIR 1968 Cal. 213. In that case, it has been observed by P.N Mookerjee A.C.J, that it is well known that in the matter of allowing amendments, the Court's power is not circumscribed by the law of limitation, if, in its opinion, the amendment should otherwise be allowed. We have already stated as to, what the necessity was for the opposite party to make an application for amendment. Considering the said circumstance, we think that it would be unjust not to allow the amendment as prayed for. The learned Subordinate Judge, in our view, acted quite in accordance with justice, equity and good conscience in allowing the amendment as prayed by the opposite party. The amendment, in our view, has not caused any injury or injustice to the petitioner. The contention of the petitioner in this regard is overruled.

11. Lastly, Mr. Roy Chowdhury has urged that before the application for pre-emption is allowed, the applicant must satisfy the Court that the transfer of the portion or share of the holding to the applicant does not exceed the limit mentioned in S. 14-M of the Act. It is pointed out on behalf of the petitioner that no finding has been made by the learned Subordinate Judge in that regard. It is true that no such finding has been made as contended on behalf of the petitioner, but it is clear that the transfer of the land to the opposite party will not exceed the limit as prescribed by S. 14-M of the Act. It may be that there is some discrepancy in the evidence of P.W 1 Sushil Kr. Shome. But in paragraph 7 of the of the affidavit-in-opposition filed by the opposite party in this Court, it has been categorically stated that the opposite party is the owner and in possession of 10 acres of land and her family consists of 7 members. The petitioner has not filed any affidavit-in-reply to deny the said averment in paragraph 7. We do not find any reason not to accept the said statement in paragraph 7, read with the deposition of P.W.I This point does not appear to have been argued on behalf of the petitioner before the learned Subordinate Judge. In these circumstances, we do not think that there is any merit in the contention of the petitioner.

12. For the reasons aforesaid, the order of the leaned Subordinate Judge is affirmed and the Rule is discharged, but there will be no order for costs.

D.C Chakravorti, J.:— I agree.

Rule discharged.

Sri Debabrata Bhowmick v. Sm. Nani Bala Some

Structured Summary of the Opinion (M.M. Dutt, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Opposite Party's Position (as reflected in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sri Debabrata Bhowmick v. Sm. Nani Bala Some

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