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2016 Supreme(Cal) 345
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Shivakant Prasad, J.
Smt. Jayanti Mukhopadhyay - Petitioner
Vs.
Mahendranath Panja & Anr. - Opposite Parties
C.O. 944 of 2000
Decided On : 03-08-2016
For the Petitioner: Mr. Haradhan Banerjee Mr. Amitava Pan Mr. Subharangshu Datta
For the Opposite Parties : Mr. Debjit Mukherjee, Mrs. Susmita Chatterjee, Ms. Dipanwita Ganguly
A revision petition under Section 115 of the CPC is not maintainable when an alternative remedy of appeal is available under a statute.
Headnote:
{'KEYWORD': 'Revisional Jurisdiction', 'SUBJECT': 'Maintainability of Revision Under Section 115 of CPC', 'ACT SECTION LIST': ['Section 115 of CPC', 'Section 9(6) of West Bengal Land Reforms Act, 1955'], 'SUMMARY': 'The High Court held that a revision petition under Section 115 of the Code of Civil Procedure (CPC) was not maintainable in a case where an appeal was available under Section 9(6) of the West Bengal Land Reforms Act, 1955. The Court observed that the petitioner had an efficacious and statutory remedy of appeal before the District Judge and should have pursued that remedy instead of resorting to the extraordinary jurisdiction of the High Court under Article 227 of the Constitution.'}
Fact of the Case:
The petitioner filed a Misc. case under Section 8 of the West Bengal Land Reforms Act, 1955 (WBLR Act) for pre-emption on the ground of being an adjoining owner of the premises against the opposite party. The opposite party filed an application under Order 14, Rule 2 of the CPC on the ground of maintainability in law, contending that the provisions of the WBLR Act have no application in the case when the suit property is situated within the area where the Urban Land (Ceiling & Regulation) Act, 1976 is attracted. The trial court held that the Misc. case under Section 8 of the WBLR Act was not maintainable and dismissed the petitioner's application. The petitioner filed a revision petition under Section 115 of the CPC challenging the trial court's order.
Finding of the Court:
The High Court held that the revision petition under Section 115 of the CPC was not maintainable as the petitioner had an alternative remedy of appeal under Section 9(6) of the WBLR Act. The Court observed that the petitioner should have pursued the statutory remedy of appeal before the District Judge instead of resorting to the extraordinary jurisdiction of the High Court under Article 227 of the Constitution.
Issues: Whether a revision petition under Section 115 of the CPC is maintainable when an appeal is available under Section 9(6) of the West Bengal Land Reforms Act, 1955.
Ratio Decidendi: The High Court held that the revision petition under Section 115 of the CPC was not maintainable as the petitioner had an efficacious and statutory remedy of appeal before the District Judge. The Court observed that the petitioner should have pursued the statutory remedy of appeal instead of resorting to the extraordinary jurisdiction of the High Court under Article 227 of the Constitution.
Final Decision: The High Court dismissed the revision petition, holding that it was not maintainable in view of the availability of an alternative remedy of appeal under Section 9(6) of the West Bengal Land Reforms Act, 1955.
SHIVAKANT PRASAD, J.
1. Order No. 29 dated 28th March, 2000 passed in L.R. Misc. case no. 13 of 1998 by the learned Civil Judge (Junior Division), 7th Court, Howrah is under challenge whereby the learned trial Judge decided an application under Order 14 Rule 2 on contest and considering the disputed property being homestead situated within the area of Howrah Municipal Corporation held that the Misc. case under 8 of WBLR Act has no application as not maintainable.
2. Chronological event leading to the instant case is that the petitioner being absolute owner and occupier of the property comprised in Municipal Holding no. 76/5, Ichapur Road, P.O. Kadamtola, P.S. Bantra, District-Howrah had filed an application on 09.4.1998 under Section 8 of the West Bengal Land Reforms Act for pre-emption on the ground of being adjoining owner of the premises, against the opposite party no. 1.
3. After entering appearance, the opposite party no. 1 herein filed objection against the said application under section 8 of the West Bengal Land Reforms Act, contending inter alia that the application is not maintainable in its present form, either in law or on facts and filed an application under Order 14, Rule 2 of the C.P. Code on the ground of maintainability in law and that the provisions of the West Bengal Land Reforms Act, 1955 has got no application in the case when the suit property is situated within the area where the Urban Land (Ceiling & Regulation) Act, 1976 is attracted and the said application was contested by the petitioner on the contention that the purported application precisely conveyed the mixed question of law and fact and as such, the application under Order 14, Rule 2 of C.P. Code should be summarily rejected as not applicable in Misc. Case and also that the Urban Land (Ceiling & Regulation) Act, 1976 has already been repealed by the Parliament and as such, Urban Land (Ceiling & Regulation) Act, 1976 is no longer in existence. Therefore, the question that West Bengal Land Reforms Act, 1955 is not applicable where the Urban Land (Ceiling & Regulation) Act, 1976 only applies does not arise in the facts and circumstances of the case. Upon hearing the learned trial Court disposed of the application under Order 14 Rule 2 C.P. Code on finding that the Misc. case under section 8 of WBLR Act was not maintainable.
4. Being aggrieved by and dissatisfied with order no. 29 dated 28.3.2000 passed by the learned 7th Civil Judge (Junior Division), Howrah in L.R. Misc. Case No. 13/98, the petitioner preferred this revision, inter alia, on the grounds that the learned Court below acted illegally with material irregularity in taking up the point of maintainability which is a mixed question of law and fact in exercise of power conferred under Order 14, Rule 2 of the Civil Procedure Code.
5. It is contended that the West Bengal Land Reforms Act is applicable in Howrah as the petitioner is a raiyat under the West Bengal Land Reforms Act and the definition of ‘land’ covers the land held by this petitioner/raiyat and as such, there is no embargo as to the maintainability of the application filed by the petitioner. The judgment of this Hon’ble Court delivered in the case of Samir Kumar Sen Vs. Madan Mohon Sett was challenged before the Hon’ble Supreme Court and the Hon’ble Supreme Court upheld the findings of this Hon’ble Court that—
“Land Reforms Act applies in respect of a land situated within the Municipality of Howrah where the Urban Land (Ceiling & Regulation) Act is also applicable.”
6. Accordingly, it is submitted by the learned Counsel for the petitioner that in such view of the matter, the application under section 8 of the West Bengal Land Reforms Act is squarely maintainable in the eye of law and the Court misinterpreted the provisions of West Bengal Land Reforms Act and the Land Ceiling Act when Land Ceiling Act is no longer in force in the country and learned Court below ought to have held that the application under section 8 of the West
