DULAL CHANDRA DEY Vs. ANJALI DEY

JUDGEMENT

(1.) THE petitioner defendant has filed the present Revisional application challenging order No. 36 dated 4. 2. 1985 passed by the learned Munsif at Amta in Title Suit No. 73 of 1983. By the impugned order the learned Munsif has rejected the defendant's petition dated 30. 7. 1984 under section151 of the Code of Civil Procedure. The defendant prayed for consideration of the earlier two orders viz. order no. 2 7 dated 29. 5. 1984 and order No. 29 dated 24. 7. 1984. The learned munsif has rejected the defendant's petition under section 151 of the Code of Civil Procedure holding inter alia that the earlier orders cannot be re-opened and the Civil Procedure Code provides a remedy for re-consideration of the order and in view of the materials on record there is no reason to invoke the inherent jurisdiction of the court and there, is no merit in the petition under section. 151 of the Code of Civil Procedure. Being aggrieved the petitioner defendant has come to this Court. Having heard Mr. Gopal Chandra Mukherjee, learned Advocate for the petitioner and Mr. Tapan Kumar Dutta, learned Advocate for the opposite party it appears to this Court that in the written statement the defendant has specifically rises a question that he is a bargadar and an issue has been framed as to whether the defendant No. 1 is a bargadar or not. If any such question is raised in a Civil suit, such a decision has got to be referred to the appropriate authority under section 21 (3) of the West Bengal Land Reforms act. It is submitted that previously an application was filed in this behalf and the same was dismissed for default and the same must not be considered again. Now it is submitted that irrespective of dismissal of the earlier petition, or if there is no application by the defendant, it is the duty of the court to refer the dispute to the appropriate authority as envisaged under the West Bengal Land Reforms Act and for such reference the provisions of Section 21 (3) of the West Bengal Land Reforms Act is clear and explicit. Section 21 (3) of the West Bengal Land Reforms Act provides that it any question as to whether any person is or is not a Bargadar arises in the course of a proceeding before amy Civil, or Criminal Court, the Court shall refer it to the officer or the authority mentioned in sub-section (1)of Section 18 for decision. It is thus very clear from the said section that there cannot be any reservation by the Civil Court or the Criminal Court. Such a reference shall have to be made by the Court irrespective of any application by any party. It is the duty of the Court to adjudicate the matter in dispute. In the course of a suit or proceeding if any dispute is raised and such a dispute has got to be adjudicated by framing an issue, there must be a reference, and this duty has not been discharged by any order passed by the Court. The party to a proceeding has certainly the right to invoke the inherent jurisdiction of the court to correct any erroneous decision palpably wrong on the face, of the record. The dismissal of earlier application for reference for default and or otherwise does not prevent the lower court to pass an appropriate order after hearing both the parties and in accordance with law.

(2.) IT is submitted by Mr. Dutta, learned Advocate appearing for the opposite party that there are three-fold objections against the Revisional application as made by the petitioner. First, the petitioner ought to have proved the locus standi. The original Bargadar having died, there cannot be the survival of the cause of action unless there is proper determination and or nomination by the appropriate authority as envisaged under section 15 (a) of the West Bengal Land Reforms Act. Secondly, the dispute once referred to the authority under the Act in a previous proceeding may be looked into and the petitioner, cannot have any further grievance as regards the reference to be made by the Civil Court. Lastly, it is argued that within the frame work of the suit, the question of title has to be gone into and this question cannot be referred to the authority under section 18 (1) of the West Bengal Land Reforms Act and* the question of title has got to be decided by the Civil Court. Accordingly, the contention of the petitioer before this Revisional Court cannot be sustained.

(3.) THIS Court has considered all the submissions made either by Mr. Mukherjee for the petitioner or by Mr. Dutta for the opposite party. It is very clear that since it is a duty of the court to refer the matter to the appropriate authority under section 21 (3) of the West Bengal Land reforms Act, the previous order of dismissal for default does not stand as a bar and the earlier orders are no impediment to the consideration of the question of reference as envisaged under section 21 (3) of the West bengal Land Reforms Act. The question of determination and or nomination by the appropriate authority under section 15 (a) of the Act has got to be considered by the lower court at the time of sending the matter under reference ' as to whether until such determination and or nomination the reference would be sent at all or if the Reference is made the same would abide by the result of nomination and or determination. The question of title is never to be referred to any authority as the Civil Court is the only appropriate forum for the adjudication of title but a person may have more than one capacity. If in the instant case, there is at all any question of claim by a Bargadar as it appears in the written statement and an issue has been framed, the learned Munsif will have no other alternative but to refer the dispute to the authority as indicated under section 21 (3) of the West Bengal Land Reforms Act.