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Pran Krishna Saha and Ofat Pramanik Vs. Kripa Nath Chowdhury and ors., - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in35Ind.Cas.76
AppellantPran Krishna Saha and Ofat Pramanik
RespondentKripa Nath Chowdhury and ors., ;khudiram Saha and ors. and ;madan Biswas and ors.
Cases Referred and Hira Koar v. Lachuman Gope
Excerpt:
bengal tenancy act (viii of 1885, b.c.), sections 111, 111b - suit instituted within prohibited period, how to be dealt with--dismissal of suit--rejection or return of plaint--civil procedure code (act v of 1908), order vii, rules 10, 11. - .....court on the expiry of that period and there is no provision in the act for the dismissal of a suit instituted within the said period. i am of opinion, therefore, that the principle recognised in the above cases may also be applied to cases coming under section 111b of the act.10. in any case i think the suit, ought not to have been dismissed. if a suit appears from the statements of the plaint to be barred by any law, the proper course is to reject the plaint under order vii, rule 11, clause (d), and not to dismiss the suit entirely. the court in the present case did not reject the plaint but registered it and fifteen months after the suit was dismissed at the hearing on the ground that it was instituted contrary to the provisions of section 11 ib of the act. in the case of.....
Judgment:

N.R. Chatterjea, J.

1. These appeals arise out of suits for recovery of possession of the lands in dispute on declaration of the plaintiff's title thereto.

2. The lauds were recorded in the Record of Rights in the first case, as the brohmotter and lakheraj lands of the defendants No. 1 to 3 and in the second as the jotes of defendants Nos. 1 to 5. The plaintiff-claimed the lands as part of his patni and dar-patni taruf, it being alleged that the lands were settled with Other persons who were dispossessed by the defendants and that the former thereupon relinquished the lands in favour of the plaintiff.

3. It appears that the Record of Rights were finally published on the 30th January 1910and the 2nd February 1910 was the date of certificate of final publication. The Courts below have dismissed the suits on the ground that as they raise issues coming within Clauses (b) and (c) of Section 111B of the Bengal Tenancy Act, they are barred by the provisions of the section, having been instituted within three months of the date of the certificate of final publication of the Record of Rights. The plaintiff has appealed to this Court.

4. The date of certificate of final publication of the Record of Rights was the 2nd February 1910, and three months from that date expired on the 2nd May 1910. These suits were filed on the 27th April 1910, i.e., six days before the expiry of the three months.

5. The plaints, however, were not rejected but were registered. The defendants in their written statements filed on the 22nd July 1910 pleaded that 'without bringing a suit for amending the Record of Rights in respect of the disputed lands after its final publication by the Settlement Court, the plaintiff having brought this suit contrary to the provisions of law, this suit cannot proceed in this Court. The suit brought by the plaintiff in the manner and in the form is not triable by this Court.'

6. No specific objection was taken that the suit was not maintainable on the ground that the suits were instituted before the expiry of the three months, nor was any application made to have the plaint rejected on that ground. The suits Were heard by the Court of first instance on the 25th July 1911, when they were dismissed on the ground that they were not maintainable as being contrary to the provisions of Section 111B of the Bengal Tenancy Act, and the lower Appellate Court affirmed that decision on the 8th of January 1912.

7. Section 111B of the Bengal Tenancy Act provides that a suit shall not be instituted in any Civil Court for the decision of any of the issues mentioned in the Section within three months from the date of certificate of final publication of the Record of Rights. The suits involve issues mentioned in Clause (b) and (c) of Section 111B. The suits, therefore, could not be instituted before the expiry of three months from the date of the certificate.

8. It is contended, however, that the, suits should not have been dismissed but should have been stayed until the expiry of the three months, and we have been referred to certain observations made with the case of Ram Narayan Singh v. Krishna Chandra Ghose 17 Ind. Cas. 490 : 17 C.LO.J. 239 : 17 C.W.N. 408 in connection with Section 91 of the Chota Nagpur Tenancy Act, which lays down that no Civil Court shall within six months after the final publication of the Record of Rights entertain any suit or application in which certain issues specified therein arise. In that case the learned Judges observed: 'We may finally observe that even if the view taken by the Subordinate Judge had been well founded he ought not to have dismissed the suit. Section 91, where it is applicable, merely provides that the Civil Court should not entertain a suit of a particular description. That does not mean that the suit, if instituted, shall be dismissed. The. proper course to follow in such a contingency is to adjourn the trial of the suit till the final publication of the Record of Rights. The view we take is supported by the principle recognised in Rendall v. Blair (1890) 45 Ch. D. 139 : 59 L.J. Ch. 641 : 63 L.T. 265 : 38 W.R. 689; Mohammad Azmat Ali Khan v. Lalli Begum 8 C. 422 : 9 I.A. 8; Alimuddin Khan v. Hira Lall Sen 23 C. 87; Jijaji Pratapji Raje v. Balkrishna Mahadeo 17 B. 169; Bando Subrao Jamnis v. Jambu Tavnappa Adake 7 Ind. Cas. 986 : 12 Bom. L.R. 801; Jagat Tarini Dasi v. Naba Gopal Chaki 34 C. 305 : 5 C.L.J. 270 and Sarat Chandra Banerjeet v. Apurba Krishna Roy 11 Ind. Cas. 187 : 14 C.L.J. 55 : 15 C.W.N. 925 and does not militate against the decision in Chandulal v. Awad 21 B. 351.' The principle was followed in a later case Hira Koer v. Lachuman Gope 21 Ind. Cas. 958 : 19 C.W.N. 1141 in connection with Section 111 of the Bengal Tenancy Act and it was held that the suit should not be dismissed as three months from the date of final publication had already expired.

9. It is to be observed that under Section 91 of the Chota Nagpur Tenancy Act as well as under Section 111 of the Bengal Tenancy-Act, the Civil Courts cannot entertain a suit whereas Section 111B lays down that no suit shall be instituted. But although a suit cannot be instituted within the period of three months, the jurisdiction of the Civil Court is not wholly taken away when no suit has been instituted in respect of the same matter in the Revenue Court. There is no question that in such a case the suit may be instituted in the Civil Court on the expiry of that period and there is no provision in the Act for the dismissal of a suit instituted within the said period. I am of opinion, therefore, that the principle recognised in the above cases may also be applied to cases coming under Section 111B of the Act.

10. In any case I think the suit, ought not to have been dismissed. If a suit appears from the statements of the plaint to be barred by any law, the proper course is to reject the plaint under Order VII, Rule 11, Clause (d), and not to dismiss the suit entirely. The Court in the present case did not reject the plaint but registered it and fifteen months after the suit was dismissed at the hearing on the ground that it was instituted contrary to the provisions of Section 11 IB of the Act. In the case of Padmanund Sing v. Anant Lal Misser 34 C. 20 : 4 C.L.J. 421 : 11 C.W.N. 38 : 1 M.L.T. 355 where it was held that it is competent to the Court to reject a plaint under Section 54 (of the old Code) after it has been admitted and registered, the plaint was filed with insufficient Court-fees. The Court directed the plaintiff to put in the deficit Court-fees within the time fixed by it which he failed to do but put in the Court-fees subsequently, and the plaint was admitted and duly registered. At the time of the hearing of the suit, on the objection of the defendant the plaint was rejected. It was held by the Pull Bench that in the circumstances of the case, the plaint might well be regarded as presented and filed on the date it was registered, with all the consequences that would follow it in regard to limitation or otherwise from its being filed on that date.

11. Maclean, C.J., observed: 'if the Court had rejected the plaint in the first instance on the ground that the deficit Court-fee was tendered too late, the plaintiff could then have brought a fresh action, whilst, very possibly, by the objection being taken at so late a stage, such new suit would be barred by limitation.'

12. In the Full Bench case something had to be done, viz., the payment of the deficit Court-fee. In the present nothing further was to be done and there can be no question that the plaint if filed six days later would have been a quite valid one. A fresh suit now would be long but of time. Under the circumstances, I think the principle of the Full Bench decision may be followed and the suit treated as having been instituted on the 3rd May 1910.

13. We set aside the decrees of the Courts below and send back the case to the Court of first instance to be tried on the merits, costs to abide the result.

Richardson, J.

14. The Courts below have concurred in dismissing these suits, on the ground that they were instituted in contravention of Section 111B of the Bengal Tenancy Act within the period of three months following the date of the certificate of final publication of a Record of Rights covering the lands to which the suits respectively relate.

15. The Record of Rights was published on the 30th January 1910. The certificate of final publication is dated the 2nd February 1910 and the suits were instituted on the 27th April 1910 within the three months mentioned in the section. The question is whether the Courts below were right in dismissing the suits.

16. When a Record of Rights has been prepared and published for any local area, estate or tenure, and no settlement of land revenue is in question, Section 105 of the Bengal Tenancy Act gives the Revenue Officer power, on application by landlord or tenant, to settle a fair and equitable rent for the land held by the tenant. The application must he made within two months of the date of the certificate of final publication. Section 106 further empowers the Revenue Officer to hear and decide disputes regarding entries in, or omissions from, the Record of Rights. For the purpose of obtaining his decision on such a dispute, a suit has to be instituted before him within three months from the date of the certificate of final publication.

17. Then inasmuch as the jurisdiction so conferred on the Revenue Officer might bring him into conflict with the Civil Courts, provisions have been introduced with the object of preventing such a conflict.

18. The first of these provisions in logical order will be found in Section 111, which in cases like the present covers the whole period from the issue of an order under Section 101 directing the preparation of a Record of Rights until three months after its final publication. Symmetry would apparently demand that the three months should be calculated from the date of the certificate of final publication. But, however that may be, during the period specified no Civil Court is to 'entertain...any suit or application for the alteration of the rent or the determination of the status of any tenant in the area to which the Record of Rights applies.'

19. Then comes Section 111B, which comprises four sub-sections. Sub-section (1) relates to the three months from the date of the certificate of final publication during that period:

'No application or suit affecting such land or any tenant thereof shall...be made or instituted in any Civil Court for the decision of any of the following issues.' Four issues are stated which need not be set out.

20. Sub-section (2) relates to the period before 'the final publication of the Record of Rights ', during which the jurisdiction of the Civil Court is not ousted except to the extent provided by Section 111. The Clause says that if during the period:

A suit involving the decision of any of the issues mentioned in Sub-section (1) has been instituted in a Civil Court, the Revenue Officer shall not entertain any, suit under Section 106 involving the decision of the same issue.

21. Sub-section (3) contains a somewhat similar provision in regard to the settlement of fair rents under Section 105 and need not be further referred to.

22. Sub-section (4) provides for cases in which the making of an application or institution of a suit has been delayed owing to the operation of Sub-section (1).' In such cases the period of three months is to be excluded in computing the period of limitation prescribed for such suit or application. The division of jurisdiction between the-Revenue Officer and the Civil Court is completed by Section 109, which says that 'subject to the provisions of Section 109A. (regarding appeals from the decisions of Revenue Officers) a Civil Court shall not entertain any application or suit concerning any matter which is or has already been the subject of an application made, suits instituted or proceedings taken, under Sections 105 to 108 (both inclusive).'

23. This Section indicates the object which the Legislature has in view and the mode in which it was sought to be attained. Omitting applications for the sake of brevity, Sections 111 and 111B prohibit for the periods therein stated the entertainment by, or the institution in, the Civil Courts of suits of certain classes. But the jurisdiction of the Civil Courts in regard to such suits is not necessarily taken away for good and all. The Civil Courts are finally deprived of jurisdiction only in the case of snits concerning matters which have come before the Revenue Officer for decision under Sections 105 to 108.

24. In regard to suits of the latter kind there is no difficulty, if such a suit has been entertained or instituted in contravention 6f Section 111 or Section 11 IB and if in the course of the proceedings it appears that if the suit had been instituted after the period specified in those sections, it would still have been open to objection under Section 109j then it is clear that the Civil Court has no jurisdiction and the plaint must be rejected or the suit or so much of it as is open to such objection must be dismissed.

25. The difficulty arises when the suit is not open to objection under Section 109, that is to say, when the suit would have been a perfectly good suit if it had been instituted after the period specified in Section 111 or Section 111B.

26. The Legislature, no dobut, intended or contemplated that a plaint presented during a prohibited period should be at once returned Or rejected under the provisions of Order VII, Rule 10 or Rule 11 of the Civil Procedure Code. This, no doubt, is the propel course when an untimely presentation is apparent on the face of the plaint and is then and there brought to the notice of the Court. But the breach of Section 111 or Section 111B may be overlooked or may not be apparent on the face of the plaint. The defect may not come to light till long afterwards when the suit is under trial. In such a case the Civil Court would have complete jurisdiction except for the fact that plaint was presented some few days before it ought to have been presented. Must the suit then be dismissed merely on that ground? Much expense may have been incurred. All the evidence necessary for the disposal of the suit on the merits may have been recorded. If the plaint is then returned or rejected only for the purpose of being re-filed, the plaintiff may be met by a plea of limitation which such a saving Clause as that in Sub-section (4) of Section 111B might be insufficient to meet.

27. The prohibitions in the Sections under considerations are generally addressed to the Court, which is directed not to 'entertain' certain suits. In Sub-section (1) of Section 111 the prohibition is addressed to the intending plaintiff who is not to 'institute' the suit. I he practical effect in either case appears to be the same for the present purpose, at any rate it appears to be immaterial which form of prohibition is employed. A prohibition addressed to the Court, indirectly it may be but nonetheless patently, affects the party and vice versa.

28. In effect the Civil Courts are in respect of certain suits closed to a plaintiff for the periods specified in Sections 111 and 111B. Bat there is no direction in either section that the filing 0f a plaint within a prohibited period shall entail the dismissal of the suit. The ratio decidendi in the cases of Ram Narayan Singh v. Krishna Chandra Ghose 17 Ind. Cas. 490 : 17 C.L.J. 239 : 17 C.W.N. 408 and Hira Koar v. Lachuman Gope 21 Ind. Cas. 958 : 19 C.W.N. 1141 would seem to be that the absence of such a direction justifies the Court in refusing to dismiss, a suit merely on the ground of an infringement of Section 111 or Section 111B. Upon that footing if the plaint is not returned or rejected before the expiration of such period and remains on the file of the Court the suit maybe treated subject always to any question arising under Section 109 as though the plaint had been received and the suit instituted on the day following the expiration of such period.

28. If it be said that the result is to give a different interpretation to the same words in Section 111 and Section 109, the answer may be made that the deprivation of jurisdiction in Section 109 is clearly intended to be permanent while in Section 111 as in Section 111B, the deprivation is clearly temporary or provisional. After the expiry of the periods specified in the two later Sections the Civil Court so far as these sections are concerned is at liberty to receive any plaint. At that stage the jurisdiction to entertain a particular suit depends not on those Sections but on Section 109.

29. In view of the two cases cited I agree to the course which my learned brother proposes to take in the present cases.


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