AMIYA KUMAR BASU Vs. PANKAJ KR CHAKRABORTY

JUDGEMENT

(1.) This application under Article 227 of the Constitution is directed against the order passed by a Revisional Court by which an order of the first Court, allowing an application for addition of party in a suit for partition and injunction, was set aside and the application for addition of party filed by the petitioner was rejected. Feeling aggrieved by the order of the Revisional Court, this application under Article 227 has been moved by the petitioner who made the application for addition of party in the partition suit pending before the trial court.

(2.) Opposite party No. 1, Shri Pankaj Kr. Chakraborty, has filed the aforesaid suit for partition and injunction against the opposite parties Nos. 2 to 12 in the Second Court of the Assistant District Judge at Alipore (South 24 Parganas). In the said partition suit, the petitioner filed an application under Order 1, Rule 10 of the Code of Civil Procedure, upon the allegations that the presence of the petitioner was necessary as he was an interested party in the outcome of the suit as an agreement for sale was entered into by him and one Mr. K. Mohan Das with the opposite party Nos. 2 to 12 in respect of the second floor flat proposed to be constructed in premises No, 16U, Dover Lane, Calcutta-700029 at a consideration of Rs. 15,25,000/- out of which the petitioner had already paid a sum of Rs. 13,95,001/- to the parties to the suit. The petitioner in his application under Order 1, Rule 10 of the Code of Civil Procedure had also alleged that after the execution of the agreement for sale the co-owners have filed the suit for partition to avoid the agreement and the petitioner was not given delivery of possession of the flat in question on the ground that a partition suit was pending amongst the co-sharers of the suit premises and an order of injunction was granted by the court. The plaintiff-opposite party No. 1, however, objected to the addition of the petitioner on the ground that the petitioner being a stranger in the suit for partition was not entitled to be added as a party defendant in the suit. By an order dated 11th of August, 1994 the trial court allowed the application of the petitioner for addition of party ex parte and the expare and order of the trial court was set aside in revision. It is the order of the Revisional Court which is now under challenge in this application under Article 227 of the Constitution.

(3.) On behalf of the petitioner, Mr. Dasgupta firstly questioned the propriety of the order passed by the Revisional Court on the ground that the Revisional Court had no jurisdiction to entertain the Revisional application against the order of the trial court allowing the application for addition as the valuation of the suit was more than Rs. 60,000/- and, therefore, the revisional application ought to have been filed by the opposite party No. 1 before this court. This submission was made by Mr. Dasgupta, relying on different provisions of the Bengal, Agra, Assam Civil Court Act. Mr. Dasgupta contended that as the revisional jurisdiction is also a part of the appellate jurisdiction and as an appeal after the disposal of the suit shall lie to High Court, the District Court had no jurisdiction to entertain the Revisional application as the valuation of the suit exceeded Rs. 60,000/- in view of the provisions of the Bengal Assam Civil Court Act. In order to show that the revisional jurisdiction is also a part of the appellate jurisdiction, Mr. Dasgupta relied on a decision of the Supreme Court in the case of Shankar Ram Chandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR 1970 Supreme Court 1. In this connection, reliance was also made to a decision of the Privy Council reported in AIR 1932 Privy Council 165 (Nagendra Nath Dey v. Suresh Chandra Dey). Mr. Dasgupta also contended that assuming that the petitioner participated before the Revisional Court without raising any objection as to its jurisdiction to entertain the revisional application against the order of the trial court, even then it must be held that the Revisional Court could not entertain the revisional application against the order passed by the court of first instance by consent of the parties or by taking part in the revisional proceeding. In support of this contention, Mr. Dasgupta relied on a Full Bench decision of this court reported in AIR 1946 Calcutta page 508 (Khetsidas Gangaram v. First Land Acquisition Collector, Calcutta). Reliance was also placed by Mr. Dasgupta to a Supreme Court decision reported in AIR 1970 Supreme Court page 1062 (Balai Chandra Hazra v. Shewdhari Jadav). Mr. Bhattacharjee appraring on behalf of the opposite party No. 1, however, contested the submissions of Mr. Dasgupta. According to Mr. Bhattacharjee, the petitioner cannot be permitted to raise the question of jurisdiction for the first time in this petition under Article 227 of the Constitution as it is now an admitted position that the petitioner without raising any objection as to the entertainability of the Revisional application by the Revisional Court against the order passed by the trial court allowing the application for addition of party which was filed by the petitioner in the trial court, participated in the revisional proceeding. Before I proceed further, let me keep it on record that there cannot be any dispute that the Revisional jurisdiction of the High Court is a part of its appellate jurisdiction. In the present case, I am only concerned with the question whether the revisional power conferred on the District Court could be exercised by the District Court in the facts of this case. In my view, irrespective of valuation of the suit, a District Court has been conferred with concurrent jurisdiction with the High Court to entertain a revisional application under section 115A of the Code of Civil Procedure. Section 115A of the Code of Civil Procedure is as under :- District Court's powers of revision