Dulal Chandra Giri vs Tapash Giri & Anr
2023 Latest Caselaw 6921 Cal

                     IN THE HIGH COURT AT CALCUTTA
                       CIVIL REVISIONAL JURISDICTION
                               APPELLATE SIDE


Present:
Hon'ble Justice Shampa Sarkar


                                CO 45 of 2021
                             Dulal Chandra Giri.
                                     vs.
                             Tapash Giri & Anr.


For the petitioner                   : Mr. Sandip Das,

For the opposite parties             : Mr. Gautam Das,
                                       Mr. Tapan Kumar Maity.



Hearing concluded on: 20.07.2023
Judgment on: 10.10.2023

Shampa Sarkar, J.:-

1.

This revisional application was heard along with C.O No. 43 of 2021

and CO No. 44 of 2021, as common questions of law and fact were involved

in all the revisional applications. However, as the order impugned in each of

the revisional application arise out of separate pre-emption cases and the

pre-emptees are different, the judgments are delivered separately in respect

of each of these civil revisional applications.

2. The revisional application arises out of an order No. 18, dated

February 18, 2020 passed by the learned Civil Judge (Junior Division),

Kakdwip, in Misc. Case No. 10 of 2018(8).

3. By the order impugned, the learned court below rejected an

application for amendment of the pre-emption application. The amendment

application was filed on January 2, 2020, after trial had commenced and the

evidence had substantially progressed.

4. The learned court was of the view that at the stage when the cross-

examination of opposite party no.1 was near completion, the proviso to

Order VI Rule 17 would be a bar in allowing the amendment. The petitioner

failed to satisfy the court that in spite of due diligence, the facts sought to be

incorporated by way of the amendment could not be raised before the trial

had commenced. Further, the learned court held that the corrections sought

to be inserted in the schedule of the pre-emption application were not

necessary as the mistake in the RS Dag No. had been admitted by the

opposite party no.1 in his cross-examination. The opposite party no.1 clearly

admitted that the suit land was situated at CS dag no. 217 corresponding to

RS Dag No. 768/1248 corresponding to LR dag no. 901. Such evidence

would be taken into account, at the time of trial. The court observed that as

the impugned deed of sale bearing no. 4520 dated December 28, 2017

Exhibit -1, mentioned that RS dag no. 217 corresponded to LR dag no. 901,

the amendment would amount to indirect rectification of the schedule of the

deed.

5. Learned Advocate for the petitioner submitted that when it was an

admitted position that the CS dag No was wrongly mentioned as RS dag No.

217 and the actual RS dag no. was 768/1248, was not incorporated. Such

bona fide error in the schedule of the pre-emption case, ought to be rectified,

or else, the said defect may lead to difficulty in identification of the suit

property and further complications may arise at the time of execution.

6. Learned Advocate further submitted that when the opposite party no.1

had himself admitted in his cross-examination that CS dag no. 217

corresponded to RS dag No.- 768/1248 and L.R plot no. 901, the formal

application for amendment should be allowed and the application for pre-

emption should be amended accordingly, in order to clear all doubts with

regard to identification of property in question. That the amendment was

neither introduction of a new cause of action nor withdrawal of any

admission. It was also not a case that a contrary plea was sought to be

inserted by the amendment. It was merely an attempt on the part of pre-

emptor to correct the schedule of the property in the pre-emption

application, for proper identification of the property sought to be pre-

empted.

7. Learned Advocate for the opposite party submitted that the belated

amendment was rightly disallowed. The pre-emption case was filed

sometime in 2018. The pre-emptor had adequate opportunity to obtain the

certified copy of the record of rights and apply for amendment before

commencement of trial. It was the pre-emptor's duty to bring on record such

facts within a reasonable time. Once the pre-emptor's evidence was recorded

and the pre-emptor was discharged, such application could not have been

entertained. Moreover, the evidence of OP No.1 was near completion and the

amendment was brought only to fill up the lacunae.

8. Having heard the learned advocate for the respective parties, this

court is of the view that the learned court below did not commit any

irregularity in rejecting the application. Even if the proviso to Order VI Rule

17 of the Code of Civil Procedure is not considered, the amendment is not

necessary for proper adjudication of the dispute between the parties. The

petitioner filed a pre-emption case as a bargadar on the ground of

bargadarship. According to the petitioner/pre-emptor, he was a bargadar

under one Mr. Chittaranjan Sasmal, opposite party no.2. His name was duly

recorded in LR Khatian No. 891 under Chittaranjan Sasmal. The opposite

party no.1 and the petitioner were brothers. The opposite party No.1 started

disturbing the petitioner during cultivation in the property in question and

the petitioner filed Title Suit No.-388 of 2017 before the learned Civil Judge

(Jr. Division) Kakdwip. An order of injunction was passed on October 26,

2017 restraining the defendants therein i.e., the brother of the petitioner

from interfering with the right, title and possession of the petitioner in

respect of the property in question. Suppressing the pendency of the suit,

the order passed in the suit and also the fact that the petitioner was a

bargardar, under the opposite party no. 2, the opposite party no.2 illegally

transferred/sold the suit plot to the opposite party no.1(brother of the

petitioner).

9. Under such circumstances, the petitioner was compelled to file a pre-

emption application. The deed of sale was executed and registered on

December 28, 2017. The petitioner categorically mentioned that he was in

possession of the property in question and continued to be in possession.

During the pendency of the suit, the petitioner applied for the certified copy

of the RS record of rights. On obtaining the certified copy, the petitioner

realized that a mistake had cropped up in the schedule of the property

mentioned in the pre-emption application. CS dag No. 217 was wrongly

mentioned in the schedule of the application as RS dag no. 217. The

corresponding RS dag no. 768/1248 was not mentioned. Finding no other

alternative, the petitioner filed the application for amendment of the

application.

10. The ground for delay in filing the amendment application was that the

certified copy of the RS record was not in the possession of the petitioner,

when the pre-emption case was filed. The case was filed on the basis of the

schedule mentioned is the deed of transfer. In the deed of transfer, CS dag

no. 217 was mentioned as RS dag no. 217 and the corresponding RS dag

No. 768/1248 was missing. According to the petitioner, the facts that the CS

dag no. 217 was converted to RS dag no. 768/1248 corresponding to LR dag

No. is 901, should be incorporated in the application and its schedule, for

the ends of justice.

11. Having gone through the records, this court finds that in the pre-

emption application and in the impugned deed, LR plot no. 901 had been

mentioned. The certified copy of LR Khatain No. 891 was marked as Exhibit

-2 at the instance of the petitioner. The certified copy of the information slip

in respect of LR plot no. 901 was marked as Exhibit -3. The original copy of

Barga Praman Patra was marked as Exhibit - 4, Bhag chas receipt was

marked as Exhibit - 5. During cross-examination, the petitioner had

deposed that the instant pre-emption case was filed in respect of LR Plot no.

901. He stated that LR Plot no. 901 was derived from RS dag no. 768/1248.

That the pre-emption case was filed in respect of 50 decimals of LR dag no.

901. The petitioner further deposed that he was not in a position to show

whether he was a bargadar in respect of RS dag No. 217. In my opinion, this

statement was sought to be explained by seeking to insert the correct RS

dag No in the application for pre-emption. However, the petitioner had

exhibited documents to establish his right of bargadarship in respect to the

land belonging to Mr. Chittaranjan Sasmal (opposite party no. 2)

corresponding to LR plot no. 901. In the cross-examination, the OP No.

1(Pre-emptee) had clearly admitted that CS dag No. 217 corresponds to RS

dag No. 768/1248 which corresponds to LR plot no. 901. Answer to

question 1 of such cross-examination is relevant for such purposes.

12. Under such circumstances, when both parties admitted that the pre-

emption case is in respect of LR plot no. 901 which was derived from RS dag

No. 768/1248 and the learned court had taken cognizance of such facts, in

the order impugned, this Court is of the view that the belated application for

amendment will only set the clock back and is not necessary for

adjudication of the issue involved in the application for pre-emption. The

plot can be identified on the basis of the LR dag number. The adjudication

by the learned trial Judge could be easily based on the evidence of the

parties and the admission of the OP no.1 with regard to the identification of

the plot in question.

13. The Apex Court in the case of Andra Bank vs. ABN Amro Bank N.V.

and others reported in 2007 (6) SCC 167 observed that delay was no

ground for refusal of a prayer for amendment. The only question to be

considered by the Court was whether such amendment would be necessary

for a decision on the real controversy between the parties in the suit. In the

case in hand the amendment is not necessary. The Hon'ble Apex Court in

the case of Ramchandra Sakharam Mahajan vs. Damodar Trimbak

Tanksale (Dead) and others reported in (2007) 6 SCC 737, held that if the

amendment enabled the Court to pin-pointedly consider the real dispute

between the parties and helped to decide the case more satisfactorily, the

amendment ought to be allowed. In this case, the dispute can be decided

based on the LR Dag no., LR records and the depositions, especially the

admission with regard to CS and RS Dag numbers.

14. The revisional application fails, the learned court below shall decide

the pre-emption application on the basis of the records and evidence of the

parties. The general power of superintendence under Article 227 of

Constitution of India is limited and need not be invoked in the facts of this

case as the learned court below had given his reasons for rejecting the

application for pre-emption. While passing the order impugned, the learned

court below exercised jurisdiction vested upon him by law. The provisions of

law were applied. The evidence was appreciated and the conclusion was

arrived at with cogent reasons. Apart from the aspect of delay, the learned

court below also went into the materials on record, in order to come to the

finding that the fact that the RS dag number was wrongly mentioned in the

pre-emption application was available in evidence. Moreover, the land

corresponds to LR plot not 901. The same is available in the pre-emption

application and in the evidence. The evidence of the parties and the

description of the suit plot in the schedule as LR plot no. 901 would be

adequate for the court to identify and decide the matter.

15. In the decision of Sadhana Lodh v. National Insurance Co. Ltd.,

reported in (2003) 3 SCC 524, the Hon'ble Apex Court held as follows:-

" 7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see

whether an inferior court or tribunal had proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision."

16. In the decision of M/s. Puri Investments v. M/s. Young Friends and

Co. and Others, reported in 2022 SCC OnLine SC 283, the Hon'ble Apex

Court held as follows:-

"14.

****** We have considered the submissions of the respective counsel and also gone through the decisions of the fact-finding fora and also that of the High Court. At this stage, we cannot revisit the factual aspects of the dispute. Nor can we re-appreciate evidence to assess the quality thereof, which has been considered by the two fact-finding fora. The view of the forum of first instance was reversed by the Appellate Tribunal. The High Court was conscious of the restrictive nature of jurisdiction under Article 227 of the Constitution of India. In the judgment under appeal, it has been recorded that it could not subject the decision of the appellate forum in a manner which would project as if it was sitting in appeal. It proceeded, on such observation being made, to opine that it was the duty of the supervisory Court to interdict if it was found that findings of the appellate forum were perverse. Three situations were spelt out in the judgment under appeal as to when a finding on facts or questions of law would be perverse. These are:--

(i) Erroneous on account of non-consideration of material evidence, or

(ii) Being conclusions which are contrary to the evidence, or

(iii) Based on inferences that are impermissible in law.

15. We are in agreement with the High Court's enunciation of the principles of law on scope of interference by the supervisory Court on decisions of the fact-finding forum. But having gone through the decisions of the two stages of fact-finding by the statutory fora, we are of the view that there was overstepping of this boundary by the supervisory Court. In its exercise of scrutinizing the evidence to find

out if any of the three aforesaid conditions were breached, there was re-appreciation of evidence itself by the supervisory Court.

16. In our opinion, the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India in the judgment under appeal had gone deep into the factual arena to disagree with the final fact-finding forum."

17. Under such circumstances, the revisional application is dismissed.

18. There will be no order as to costs.

19. Parties are directed to act on the server copy of this judgment.

(Shampa Sarkar, J.)