KALYANI BANDOPADHYAY Vs. ANIMA RANI BASU

JUDGEMENT

(1.) This Rule is directed against an order No. 39 dated 4th of Dec., 1976. It appears that the opposite party who is a pre-emptee in a pre-emption proceeding under Sec. 8 of the West Bengal Land Reforms Act, 1955, filed an application under Order 9 Rule 13 for setting aside an ex parte order dated Dec. 1, 1973 allowing pre-emption on the ground of non-service of notice. It was stated in the application filed on March 11, 1974 that there was no service of the notice of the application under Sec. 8 of the Land Reforms Act on her which was fraudulently suppressed and as a result she could not appear when the ex parte order was passed. The application under Order 9 Rule 13 as also under Sec. 151 of the Code of Civil Procedure for setting aside the ex parte order and re-hear the pre-emption case was allowed by the order which has been impugned in this rule. The learned Munsif was of opinion that as, under Sec. 9 sub-section 6 of the said Act an appeal is provided, there is no occasion for exercising inherent power of the court. It was further held that the application under Order 9 Rule 13 was maintainable and by the impugned order the proceeding under the misc. case under Order 9 Rule 13 was directed to continue for which a peremptory date of hearing was fixed.

(2.) Mr. Banerjee learned Advocate for the pre-emptor-petitioner contends that there was an alternative remedy available to the pre-emptee under provision of Sec. 9(6) of the Land Reforms Act which was not availed of by her. This provision, it was contended, provides for an appeal from any order of the learned Munsif in such pre emption proceedings. As such in view of this provision there was no scope for moving the court under any other provision of the Code of Civil Procedure. Mr. Banerjee also drew my attention to the provision of Sec. 57 of the Land Reforms Act which provides for exercise of the powers of a Civil Court by any officer, dealing with proceeding under this Act, for the purpose of enforcing attendance of witnesses, production of records or documents or for enforcing or executing the orders including order for restoration of possession as if such orders are decrees of a civil court. According to Mr. Banerjee no power to entertain an application under Order 9 Rule 13 has been conferred on the learned Munsif so that the instant application was not maintainable.

(3.) Sec. 57 in terms confers on any officer dealing with the proceeding under this Act limited powers of certain provision of the Code of Civil Procedure as noted above. It may be noted that adjudication of disputes under Sec. 8 of the Act, the aid of the hierarchy of the Civil courts under Bengal, Agra and Assam Civil Courts Act, 1887 has been taken. The functions that these courts are required to discharge are purely judicial. It has been observed in Kerala Electricity Board Vs. T.P. Kunhaliumma, AIR 1977 SC 282 .