Sree Shushil Ranjan Dutta Vs. Al-Haj Moulvi Idris Mia, 42 DLR (AD) (1990) 110

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

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
 
Sree Shushil Ranjan Dutta
……………......Appellant
Vs.
Al-Haj Moulvi Idris Mia
……………......Respondent
 
Judgment
February 6, 1986.
 
The State Acquisition and Tenancy Act, 1950
Section 96
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.
 
Lawyers Involved:
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.
 
JUDGMENT
 
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:
 
"The alteration of the basis of the claim or of the pleading, in our view, has assumed a complexion wholly different from the original cause of action."
 
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:
 
"If the applications for pre-emption as co-sharer do not succeed, the claim for pre-emption on the basis of a contiguous owner of the kabala lands would be barred by limitation."
 
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.
 
Ed.