Case No: Civil Appeal Nos. 13 and 14 of 1985
Judge: Badrul Haider Chowdhury,
Court: Appellate Division ,,
Advocate: MR. SR Pal,Mr. M.H. Khondkar,,
Citation: 42 DLR (AD) (1990) 110
Case Year: 1990
Appellant: Sree Shushil Ranjan Dutta
Respondent: Al-Haj Moulvi Idris Mia
Subject: Pre-emption, Procedural Law,
Delivery Date: 1986-2-6
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
Sree Shushil Ranjan Dutta
Al-Haj Moulvi Idris Mia
February 6, 1986.
The State Acquisition and Tenancy Act, 1950
The Code of Civil Procedure, 1908
Order VI, rule 17
Order 6, rule 17 of the Code of Civil Procedure provides for allowing amendment "for determining the real question in controversy between the parties." In this case the amendment will be within time, inasmuch as the pre-emption petition was within time……………(11)
Cases Referred to-
PLD 1948 (PC) 73; 15 DLR (SC) 120 Nurun Nahar V. Mohd. Fazlur Rahman, Bangladesh Supreme Court Report (1979) 135.
S.R Pal, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record—For the Appellant in both the appeals.
M.H. Khandker, Senior Advocate, instructed by Sharifuddin Chaklader, Advocate-on-Record— For the Respondent in both the appeals.
Civil Appeal Nos. 13 & 14 of 1985.
Badrul Haider Chowdhury J.
These two appeals by special leave are directed against the judgment and order of the High Court Division, in Civil Revision Nos. 302 and 303 of 1983.
2. Leave has been granted to decide the questions as to whether the learned Judges of the High Court Division, Comilla Bench, were right in holding that the amendment of the petition sought by the pre-emptor-petitioner making a new claim for pre-emption on the basis of contiguous ownership of the disputed lands would prejudicially affect the respondent as it would alter the nature and character of the proceeding and when it was barred by limitation.
3. The appellant filed an application under section 96(1) of the East Bengal State Acquisition and Tenancy Act for pre-emption of the case land against the respondent the pre-emptee impleading thereto all the co-sharers of the holding and contiguous tenants. This petition had been marked as Miscellaneous Case No. 112 of 1981 in the Court of the Subordinate Judge at Chandpur.
4. This was a raiyati holding recorded in C.S. Khatian No. 197 of Mouza Bhotal, P.S. Faridganj. It belonged originally to Abhoy Chandra Dutta. After his death, Raman Chandra Dutta, his son, by a deed of gift dated 23rd May, 1949 gave the raiyati holding in his jote to his 3 sons, namely, Dakhina Ranjan Dutta, Anil Chandra Dutta and Shushil Ranjan, the appellant. Each of whom as such got 1/3rd share in the said holding. Dakhina Ranjan Dutta sold his share by a kabala dated 25-9-1978 to the respondent for a consideration of Tk. 20,000/- without any notice to the appellant. When this kabala was presented for registration on 30-9-81 the appellant filed an application for pre-emption on 25-11-1981 claiming pre-emption as a co-sharer of the holding. In the meantime he has, however, filed a Mutation Case No. 63 of 1977-78 for separation of his interest in the holding by creating a separate khatian, which however is still pending.
5. Respondent contested the pre-emption proceeding by filing written objection contending, inter alia, that the holding having been split up at the instance of the appellant by creation of a separate Khatian he ceased to be a co-sharer of the holding and has no locus standi as such to maintain the application. A written objection was filed on 1-4-82 whereupon the appellant filed an application for amendment of his application for pre-emption by claiming in the alternative pre-emption as a tenant holding land contiguous to the case land.
6. The respondent contested that the amendment would change the nature and character of the case and his claim as a tenant holding contiguous land for proportionate pre-emption would be liable to be defeated by lapse of time under section 96(4) of the Act.
7. The learned Subordinate Judge, however, allowed the amendment and the learned Additional District Judge affirmed the order in revision. Thereafter the High Court Division was moved and the Comilla Bench in Civil Revision Nos. 302 and 303 of 1983 made the rules absolute and set aside the order of the Courts below holding, inter alia, that the amendment would change the basis of the claim and it will operate prejudicially to the respondent.
8. Leave was granted to consider the correctness of the proposition as to whether such amendment will change the character of the proceeding or operate prejudicially against the respondent. The learned Judges have observed:
Reliance was placed on PLD 1948 (PC) 73,15 DLR (SC) 120 and provisions of Order 6, rule 17 C.P.C. Reasons for refusing amendment was framed thus:
9. The reasons need scrutiny. The kabalas dated 25-9-78 and 9-11-78 were registered on 30-9-81 and 31-10-81 respectively. The pre-emption application was filed on 25-11-81, which was within time. He impleaded all the co-sharers of the jote and also impleaded tenants holding contiguous lands. Even the transferee was impleaded as opposite party No. 1 when the written objection was filed on the plea that the pr-emptor had ceased to be co-sharer in the jote in view of his Mutation Case No. 63 of 1977-78. The prayer for dismissal of the pre-emption application was made.
10. It is only after this objection that the appellant filed his amendment petition stating that the transferee had taken up a plea that the original jote has been split up and the separate Khatian has been created and in this view of the matter, it was necessary to claim pre-emption as a contiguous land holder. In other words, by the amendment he claimed preemption either as a co-sharer of the jote or, in the alternative, as a tenant holding land contiguous to the land transferred in case the jote has been split up. It is already noticed that the pre-emption application was made within time and therefore, it is well settled the amendment of the petition would not be barred by time. The transferee objected to the amendment, but it was allowed on 27-7-82. The revisional Court below had rightly pointed out that if the transferee intends to claim ratable pre-emption under section 96(4) of the Act he could file an application within 2 months from the said order. But he did not do so. Instead he moved the High Court Division in the revisional jurisdiction.
11. It is unfortunate that the High Court Division had devoted considerable time to the point as to whether amendment should or should not be allowed. It has been repeatedly held by the highest authorities that as a rule no amendment is allowed where its effect will take away any legal right which might have accrued to him by lapse of time. Here the transferee had failed to show what legal right had accrued to him which will be washed away by allowing the amendment. Then again as a rule the Court refuses an amendment if the amendment introduces a totally new and inconsistent case which may require further evidence to be adduced by the opponent. As noticed, the appellant claimed pre-emption either as a co-sharer in the jote or as a tenant holding land contiguous to the land transferred. This was necessary because the respondent took the pica that by the aforesaid mutation case a separate Khatian had been created. As a precaution, this amendment was prayed for. On a perusal of section 96 it will be clear that a co-sharer tenant of a holding and the tenant holding land contiguous to the land transferred may bring a pre-emption proceeding. In this case the appellant prayed alternatively either as a co-sharer tenant or tenant holding contiguous land. Order 6, rule 17 of the Code of Civil Procedure provides for allowing amendment "for determining the real question in controversy between the parties." The question of limitation may arise in two ways: (1) whether the claim to be included was barred on the date of the institution of the suit, (2) whether the claim is barred on the date of the prayer for amendment. In the case of Nurun Nahar V. Mohd. Fazlur Rahman reported in Bangladesh Supreme Court Report (1979) 135 it was held that "once an amendment of the plaint is allowed the amendment will relate back to the date of the institution of the suit, and will be operative from that date." Necessarily in this case the amendment will be within time, inasmuch as the pre-emption petition was within time. The Privy Council even went further to observe that amendment of the pleadings can be allowed even when a legal right has accrued to the other party, if special circumstances of the case outweigh such circumstances.
12. In the present case no legal right has accrued to the respondent. The only right that accrued to him was under section 96(4) for filing the application for ratable pre-emption and the limitation is prescribed, namely, he must file such application within two months from the date of the order allowing the amendment. This was not done. Such omission would not stand in the way of the appellant for claiming pre-emption cither as a co-sharer tenant or as a tenant holding land contiguous to the land transferred.
13. In this view of the matter, the opinion is that the High Court Division had wrongly refused the amendment.
In the result, therefore, these appeals are allowed. The judgment and order of the High Court Division are set aside. No order as to costs.