DEBABRATA BHOWMICK Vs. NANI BALA SOME

JUDGEMENT

(1.) This Rule, which arises out of an application under Article 227 of the Constitution, is directed against the order of the Subordinate Judge, Balurghat, allowing on appeal the application for pre-emption of the opposite party. The principal question that is involved in this Rule is whether the learned Subordinate Judge was justified in allowing the application for amendment filed by the opposite party.

(2.) By two deeds of sale, both dated Dec. 8, 1972, the petitioner purchased portions of plot No. 2867 appertaining to a raiyati holding, from two co-sharers of the same. On March 20, 1973, the opposite party, who is a co-sharer of the holding by purchase, made an application for pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955 against the petitioner. On Jan. 19, 1974 the opposite party made an application for amendment of the application for pre-emption. In the application for preemption, the opposite party claimed that she was a co-sharer and, as such, she was entitled to pre-empt the petitioner. By the application for amendment, the opposite party claimed to pre-empt the petitioner on the ground of vicinage as provided in Section 8 of the Act. The learned Munsif by his order No. 14 dated March 2, 1974 allowed the said application 'subject to the condition that in case of new cause-of-action, this amendment will not save any limitation'. At the final hearing of the application for pre-emption, the learned Munsif came to the finding that in view of the decision of the Full Bench of this Court in Ma-dan Mohan Ghosh v. Sishu Bala Atta. the opposite party was not a co-sharer of the holding and, accordingly, the application for pre-emption was not maintainable. It appears that the learned Munsif did not deal with the claim of the opposite party for pre-emption on the ground of vicinage which was incorporated in the application for preemption by amendment of the same. Be that as it may, in view of the said finding, the learned Munsif dismissed the application for pre-emption.

(3.) The opposite party preferred an appeal which was heard by the learned Subordinate Judge. The learned Subordinate Judge considered the case of the opposite party for pre-emption on the ground of vicinage. He overruled the contention of the petitioner that the amendment should not be allowed, for it introduced a new case and a new cause-of-action beyond the period of limitation. The learned Subordinate Judge found that on account of the said Full Bench decision in Madan Mohan Ghosh's case (supra), the opposite party was advised to add the new ground for pre-emption. He also took the view that the amendment did not add any new cause-of-action, and that in any event, the addition of a new ground after the expiry of the period of limitation would not do any injustice to the petitioner. Upon the said finding, the learned Subordinate Judge set aside the order of the learned Munsif and allowed the claim of the opposite party for preemption on the ground of vicinage. The petitioner felt aggrieved by the said order of the learned Subordinate Judge and obtained the instant Rule.