Amra Sabai Club vs Bikash Chandra Ghosh & Anr
2021 Latest Caselaw 4033 Cal

   3
02.08.2021

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In the High Court at Calcutta Civil Jurisdiction Appellate Side

C.O. No. 1352 of 2013 (Via video conference)

Amra Sabai Club

-Vs.-

Bikash Chandra Ghosh & Anr.

Mr. Arindam Chattopadhyay ...for the petitioner

Ms. Deblina Lahiri ...for the opposite parties

The applicant in a pre-emption proceeding

under Section 8 of the West Bengal Land Reforms

Act, 1955 has challenged, in the present

revisional application, an order whereby the

petitioner's prayer for amendment of the pre-

emption application was rejected on the ground

that, by way of the same, the petitioner was

seeking to withdraw an admission made in the

original pre-emption application.

By placing reliance on the reliefs claimed in

the pre-emption application, learned counsel

appearing for the petitioner points out that the

effect of the amendment is merely deletion of the

prayer for possession initially made by the

preemptor, which is permissible in law.

Learned counsel also places the relevant

portion of the amendment, which is at page 23 of

the present revisional application, to support the

above contention.

Learned counsel appearing for the

preemptees/opposite parties argues that, in

paragraph 6 of the pre-emption application, the

petitioner specifically stated that the petitioner is

in possession of the property-in-suit. However,

by virtue of the withdrawal of the relief of

possession, the petitioner is now seeking to resile

from such position, apparently by projecting that

it already has possession. Such contradiction in

the original pre-emption application, between

paragraph 6 and the second prayer of the plaint,

has been sought to be removed by way of the

amendment and, it is contended, the trial court

was justified in refusing the same.

Learned counsel for the

preemptees/opposite parties places reliance on

the judgment in Ram Niranjan Kajaria vs. Sheo

Prakash Kajaria & Ors., reported at (2015) 10 SCC

203, in support of the proposition that a

categorical admission made in the pleadings

cannot be permitted to be withdrawn by way of an

amendment, unless the amendment merely

clarifies or explains such admission.

Upon hearing learned counsel for the

parties, it is crystal clear from paragraph 6 of the

original pre-emption application that the

preemptor claims possession of the property

sought to be preempted. No amendment has been

sought by the preemptor to withdraw such

statement regarding the petitioner's alleged

possession.

Since the second prayer of the original pre-

emption application was superfluous to the rest

of the pleadings, in view of the specific averment

of possession in paragraph 6 of the pre-emption

application, the effect of its deletion by way of

amendment would be merely the abandonment of

a claim, that is, of possession, by the preemptor,

which does not tantamount to withdrawal of an

admission. It is well-settled that the

plaintiff/petitioner can abandon, at any point of

time, any of the claims made in the

suit/proceeding.

Hence, the proposition as laid down in the

report cited by the preemptees/opposite parties is

not attracted to the present case.

As such, the trial judge acted without

jurisdiction in rejecting the amendment

application on the ground of withdrawal of

admission.

Accordingly, C.O. No. 1352 of 2013 is

allowed, thereby setting aside the impugned

order, bearing order no. 51, dated February 26,

2013 and allowing the application for amendment

of the pre-emption application filed by the

preemptor/petitioner in the court below.

Such amended pre-emption application

shall be filed by the petitioner within a fortnight

from date in the court below. Additional written

objection, if any, pertaining to such amendment

shall be filed by the pre-emptees/opposite parties

within a fortnight thereafter.

It is made clear that the contentions of the

parties have not been gone into on merits by this

court, since this revisional application only arises

out of rejection of an amendment application.

It will be open to both the parties to argue

all points, which are kept open for being

contended at the time of hearing of the pre-

emption application.

The parties as well as the court below shall

act on the written communication of the learned

advocates for the parties, accompanied by a

server copy of this order, without insisting upon

prior production of certified copy thereof, for the

purpose of compliance of this order.

There will be no order as to costs.

Urgent photostat certified copies of this

order, if applied for, be made available to the

parties upon compliance of all necessary

formalities.

(Sabyasachi Bhattacharyya, J.)