Prasenjit Mandal, J. - (1.) CHALLENGE is to the order no.12 dated April 24, 2008 passed by the learned Civil Judge (Junior Division), Kalyani in Misc. Case No.47 of 2007 arising out of the Misc. Case No.82 of 1994.
(2.) THE opposite parties of the original Misc. Case No.82 of 1994 have preferred this revisional application. THE short fact is that the predecessor-in-interest of the opposite parties, namely, Kalipada Mandal instituted the Misc. Case No.82 of 1994 under Section 8 of the West Bengal Land Reforms Act, 1955 for preemption in respect of 29 decimals of land, as described in the schedule3 of the plaint. That misc. case is being contested by the present petitioners. It appears that they adopted various measures so that the misc. case could not be proceeded with. First of all, the misc. case was fixed for matters relating to deposit of the consideration money along with 10% of the same. THE petitioners were not satisfied with the orders relating to deposit of the consideration money. THE petitioners preferred a misc. revisional application being C.R. No.50 of 1997 before the learned Additional District Judge No.II. That was disposed of by the concerned learned Additional District Judge No.II. But being not satisfied, the opposite parties preferred a civil revision under Article 227 of the Constitution of India before this Hon"ble Court and Hon"ble Justice Amitava Lala disposed of the said revisional application thereby confirming the order passed by the learned Trial Judge. THE original petitioner, that is, the preemptor died on December 24, 1997 and the heirs of late Kalipada Mandal preferred the said revisional application under Article 227 of the Constitution of India before the Hon"ble High Court. In the meantime, several steps were taken by the parties. THE petitioners preferred a civil revisional application being C.R. No.5 of 2003 before the learned District Judge, Nadia incorporating the names of the heirs of late Kalipada Mandal. 2. Ultimately, both the parties proceeded with the said Misc. Case No.82 of 1994 and evidence on the said misc. case for pre-emption was closed and the matter was fixed for hearing argument of the misc. case. At that time, the learned Advocate for the present petitioners drew attention of the Court to the effect that after death of Late Kalipada Mandal on December 24, 1997, 10 years have already passed but no step for substitution of the heirs of the pre-emptor was taken in the misc. case and so the misc. case has abated. THE prayer was made for noting abatement. THE prayer was allowed. Another round of litigation proceeded under Section 151 of the C.P.C. on substitution. THEreafter, steps under Order 22 of the C.P.C. were taken and the learned Trial Judge passed the impugned order dated April 24, 2008 holding that the pre-emptors have shown sufficient reason for not taking steps for substitution and as such allowed the application under Section 5 of the Limitation Act. Consequently, the Misc. Case No.47 of 2007 for setting aside abatement was allowed on contest. Being aggrieved by the said order, the opposite parties of the misc. case for preemption have preferred this application. Now, the question is whether the learned Trial Judge was justified in allowing the application under Section 5 of the Limitation Act and in consequence allowing the Misc. Case No.47 of 2007. Upon hearing the submission of the learned Advocates of both the sides and on perusal of the materials on record as well as the written arguments submitted by the parties, I find that a question of law is involved in the matter. Late Kalipada Mandal instituted the original misc. case for pre-emption under Section 8 of the West Bengal Land Reforms Act, 1955. Several steps were taken by the parties as noted above. Late Kalipada Mandal died in the meantime on December 24, 1997. Thereafter, the heirs of Kalipada Mandal instituted a revisional application before the Hon"ble Court and it was contested by the petitioners herein. Subsequently, the petitioners herein instituted the C.R. No.5 of 2003 before the learned District Judge, Nadia and in that case they filed an application for substitution of the heirs of late Kalipada Mandal in the said C.R. case No.5 of 2003.
(3.) THUS, from the above situation, it is clear that substitution of the legal heirs of deceased Kalipada Mandal was duly recorded in the revisional proceedings pending before the higher forum. Mr. Jha, learned Advocate appearing on behalf of the petitioners, submits that since no prayer for substitution was made in the misc. case for pre-emption, so the application for pre-emption has automatically abated. The learned Trial Judge was not justified in allowing the application under Section 5 of the Limitation Act as well as the misc. case for setting aside the abatement after lapse of 10 years from the date of death of Kalipada Mandal. Thus, he submits that the impugned order should not be supported. It must be set aside.;