Calcutta High Court (Appellete Side)
Chinu Paramanik Alias Chunilal ... vs Biswajit Kundu & Ors on 19 July, 2022
(12)
19.07.2022
(p.jana)
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
CO No. 4440 of 2019
(IA No: CAN 1/2022, CAN 2/2022)
Chinu Paramanik alias Chunilal Paramanick
-versus-
Biswajit Kundu & ors.
Mr. Tanmoy Mukherjee,
Mr. Souvik Das,
Mr. K. Raihan Ahmed,
Mr. Rudranil Das,
... for the petitioner.
Mr. Dhananjoy Banerjee,
Mr. Snehansu Majumder, ... for the opposite
party no. 2.
Re : IA No: CAN 1 of 2022
This is an application for addition of party. The opposite
party no. 1 has died intestate during the pendency of the
present revisional application on April 30, 2022 leaving
behind his widow, one son and one daughter.
The widow of the deceased is already on record as
opposite party no. 2.
The particulars of the son and daughter of the deceased
opposite party have been detailed in the cause-title of the
application as proposed substitutes opposite party nos. 1(i) and
1(ii).
The application is within time and is otherwise in form,
as such, allowed.
Let the said son and daughter of the deceased opposite
party no. 1, be added in the present revisional application in
place and instead of the said deceased opposite party.
The department is directed to carry out necessary
amendment in the cause-title of the revisional application.
The application being IA No: CAN 1 of 2022 is thus
allowed without any order as to costs.
Re : CO 4440 of 2019.
The pre-emptee in a proceeding under Section 8 of the
West Bengal Land Reforms Act, 1955 is the petitioner of the
present application under Article 227 of the Constitution of
India.
The opposite party nos. 1 and 2 sought to pre-empt the
sale in favour of the petitioner on the grounds of co-sharership
and vicinage.
The application for pre-emption was registered before
the learned Civil Judge (Junior Division) at Nabadwip,
District- Nadia being Misc. Case No. 6 of 2009.
The said misc. case was allowed and the appeal
therefrom being Misc. Appeal No. 13 of 2016 was also
dismissed.
The petitioner aggrieved by the said appellate order,
preferred a revisional application being C.O. 560 of 2018.
A co-ordinate Bench of this Court by the judgment and
order dated March 06, 2019 disposed of the said revisional
application by remanding the said appeal to the appeal Court
below to consider whether the suit property was partitioned or
even after such partition, whether the ground of vicinage is
available to the petitioner to pre-empt the said sale.
The appeal Court below after remand by the impugned
judgment and order dated September 30, 2019 although found
that the pre-emptors are not entitled to pre-empt the said sale
on the ground of co-sharership but held that they are entitled
to, on the ground of vicinage and accordingly dismissed the
said appeal.
The pre-emptors, in view of the judgment of the Hon'ble
Supreme Court in the case of BARASAT EYE HOSPITAL
AND OTHERS vs. KAUSTABH MONDAL reported in
(2019) 19 SCC 767 are not entitled to exercise their right of
pre-emption without depositing the entire consideration price
of the disputed sale along with the application for pre-emption.
The pre-emptors did not deposit such amount along with
the application, as such cannot maintain the application for
pre-emption.
The impugned judgment and order, therefore is set
aside. Miscellaneous Appeal No. 13 of 2016 is allowed,
consequently, Miscellaneous Pre-emption Case No. 6 of 2009
is dismissed as not maintainable.
The pre-emptors are at liberty to apply before the
learned Trial Judge for withdrawal of the entire monies
deposited by them, in connection with the aforementioned
Misc. case.
If such an application is made, the learned Trial Judge is
requested to take appropriate steps for disbursement of the
said monies to the pre-emptors.
CO 4440 of 2019 is disposed of with the above terms
without any order as to costs.
Re : CAN 2 of 2022
A co-ordinate Bench of this Court, by an order dated
November 16, 2018 passed in C.O. 560 of 2018 arising out of
the said Miscellaneous Appeal No. 13 of 2016 directed the
pre-emptee, the petitioner herein to deposit a sum of Rs.
40,000/- with the Registrar General of this Court.
Mr. Mukherjee, learned counsel for the petitioner
submits that such deposit was made on November 22, 2018.
The said revisional application was disposed of by the
order dated March 06, 2019 with the following observation:-
"The deposit of Rs. 40,000/- made under order dated
16.11.2018 passed by this Court shall abide by the result of
the order to be passed by the Court below".
The petitioner by the present application is praying that
he may be permitted to withdraw the said amount.
The application for pre-emption since has already been
dismissed, there is no impediment in allowing the said prayer
of the petitioner.
The petitioner is permitted to withdraw the said amount
subject to the satisfaction of the Registrar General of this
Court.
CAN 2 of 2022 is disposed of with the above terms
without any order as to costs.
Urgent photostat certified copy of this order, if applied
for, be supplied to the parties subject to compliance of all
requisite formalities.
(Biswajit Basu, J.)
