B.K. Mukherjea, J.
1. This is an appeal under Clause 15 of the Letters Patent and is directed against a judgment of Jack J., dated 26th May 1938.
2. The material facts relating to this appeal may be shortly stated as follows : There was a permanent tenure held by the pro forma defendants as tenants under the principal defendants 1-3, at a rental of Rupees 37-5-9 a year. This tenure was purchased by the plaintiff, Rani Harshamukhi, as executrix to the estate of Raja Manindra Chandra Sinha on 20 February 1929 and it is not disputed that the landlord's fees were duly paid. On 5th March 1931 the landlords defendants commenced a proceeding under Section 105, Ben, Ten. Act, for enhancement of the rent of this tenure under Section 7 of the Act. The plaintiff was not made a party to the proceeding which was started against the pro forma defendants only and even then one of the old tenants who was a minor was not represented by a guardian. There was an ex parte decree passed by the Settlement officer in the proceeding by which the rent was enhanced. The estate of defendants 1-2 was subsequently taken over by the Court of Wards and these defendants through their manager had a certificate filed under the Public Demands Recovery Act against the plaintiff for recovery of rent due in respect of the tenure on the basis of the decree made in the Section 105 proceeding. The present suit was instituted by the plaintiff on 27th April 1934 impleading all the three land-lords as parties defendants and the prayers substantially were for a declaration that the decision in Section 105 case was void and inoperative and not binding on her, and for a permanent injunction restraining defendants 1 and 2 from enforcing the certificate which was filed against the plaintiff.
3. It may be mentioned here that in the plaint filed by the plaintiff, it was stated that she received notice of the certificate under Section 7, Public Demands Recovery Act, on 19th February 1934 and filed a petition of objection under Section 9 of the Act on 17th April following, the suit being instituted within ten days after that date. One other fact deserves to be mentioned at this stage, viz. that defendant 3 died sometime after the institution of the suit. The plaintiff did not bring his heirs on the record and 4he result was that the suit abated against them. The suit was contested by defendants 1 and 2 and their defence inter alia was that the suit was premature and was barred under Section 34, Public Demands Recovery Act, as well as under Section 109, Ben. Ten. Act. It was urged that the defendants had no notice of the plaintiff's purchase and the decision in Section 105 case was valid and binding on the plaintiff. The further point taken was that the suit having abated as against the heirs of defendant 3 could not proceed against the other defendants Inasmuch as the decree which was impugned by the plaintiff was a joint decree ob-Siained on behalf of all the three defendants.
4. The Munsif who tried the suit decreed it in part. He 'was of opinion that the suit was not barred under Section 34, Public Demands Recovery Act, or Section 109, Ben. Ten. Act, and the decree in Section 105 proceeding which was passed without making the plaintiff a party, was not binding on her. He held further that as the heirs of the deceased defendant 3 were not substituted and brought on the record, the plaintiff was not entitled to any declaration as regards the validity of the decree obtained by all the three defendants jointly: she was however entitled to an injunction restraining defendants 1 and 2 from enforcing the certificate filed by them.
5. Against this decision there was an appeal taken by defendants 1 and 2 to the Court of the District Judge at Alipur. Before the Appellate Court it was conceded by the defendants that there was no bar to the suit under Section 109, Ben. Ten. Act, and that the plaintiff was improperly left out in Section 105 proceeding; only two points were taken in support of the appeal, viz. (1) that the suit was premature in view of the provision of Section 34, Public Demands Recovery Act, and (2) that it was bound to fail for non-joinder of the heirs of deceased defendant 3. The District Judge accepted both these contentions as sound. He held, that the suit being substantially one for cancellation or modification of the certificate, with a consequential prayer in the shape of an injunction, was hit by Section 34, Public Demands Recovery Act. As the plaintiff had filed a petition of objection under Section 9 of the Act, on 17th April 1934 denying liability under the certificate it was incumbent upon her to wait till the objection was determined by the certificate officer, and the suit which was instituted only 10 days after the filing of the objection and before it was determined, was barred under the provision of Section 34, Public Demands Recovery Act. The District Judge held further that as the decree in Section 105 proceeding was a joint decree, the plaintiff was not entitled even to an injunction in the present case in the absence of the heirs of defendant 3 as the certificate itself was based upon the decree which could be set aside only in the presence of all the decree-holders.
6. The result was that the District Judge allowed the appeal and dismissed the plaintiff's suit. Thereupon a second appeal was taken to this Court which was heard by Jack J. sitting singly. The learned Judge dismissed the appeal and affirmed the decision of the first Appellate Court. In the opinion of Jack J., the suit though not competent under Section 34, Public Demands Recovery Act was maintainable under the provisions of Section 37 of the Act as the plaintiff alleged fraud against the defendants in the matter of obtaining the decree under Section 105, Ben. Ten. Act. The learned Judge held however that the other objection was fatal to the plaintiff's suit, and in the absence of the heirs of defendant 3 no relief by way of injunction could be given to the plaintiff. It is against this judgment that the present appeal has been filed. Mr. Gupta who appears for the appellant before us has challenged the propriety of the view taken by Jack J. on the question of defect of parties, and his contention is that in order to obtain a relief by way of injunction it was not necessary to make defendant 3 a party to the suit at all.
7. Dr. Bysack appearing on behalf of the respondents, has not only sought to repel this contention, but he has further urged that the suit was premature under Section 34, Public Demands Eecovery Act, and it was not maintainable under Section 37 of the Act as was held by Jack J. After this appeal was heard in part, we expressed our desire to know exactly how matters stood at the present moment, with regard to the proceedings before the Certificate Officer, for, in our opinion, quite apart from the question of legal bar, it was desirable that, if the identical question was raised before the Certificate Officer, we should wait, till the officer has given his decision. The appellant has now placed before us authenticated copies of the entire proceedings before the Certificate Officer, and on a perusal of the same we have come to the conclusion that there was an error in the statement of relevant facts and dates made in this connexion in the plaint itself, and that as a matter of fact the Certificate Officer had determined the objection of the plaintiff on this point long before the suit was filed.
8. It will be seen from these records that the certificate was filed as early as 26th May 1933. On 15th September 1933 notice under Section 7, Public Demands Recovery Act, was served on the plaintiff, and on 2nd November 1933 the plaintiff filed a petition of objection under Section 9 of the Act. Two points were taken in the petition of objection: (1) that no enhanced rent could be demanded by the certificate creditor on the basis of the decree in Section 105 case; and (2) that the certificate as it was filed was not maintainable in law, inasmuch as the plaintiff was sought to be made liable in it in her personal capacity, and not as executrix to the estate of late Eaja Manindra Chandra Sinha. Both these objections were dealt with by the certificate officer by his order dated 16th December 1933. The first objection with which we are concerned in the present litigation, was overruled, and the officer held that he would follow the order for enhancement of rent passed by the Settlement Officer under Section 105, Ben. Ten. Act, and the objector if she had any grievance had his remedy in Civil Court. The other objection was given effect to, and it was directed that the certificate should be amended by inserting the name of the Rani as Executrix to the estate of Raja Manindra Chandra Sinha. It was further directed that on receipt of the petition of amendment to be filed by the Manager Court of Wards, a fresh notice under Section 7 would be served on the plaintiff. In pursuance of the order the certificate was amended, and a fresh notice under Section 7, Public Demands Recovery Act, was served on the plaintiff on 24th March 1934. On 17th April 1934, she indeed filed, a petition of objection, but that was with reference to this amended certificate. So far as the objection related to the claim for enhanced' rent on the basis of the decree in Section 105 case, it was disposed of finally by the certificate officer on 16th December 1933, and the present suit being instituted within six months from that date was not at all hit by Section 34, Public Demands Recovery Act. Our conclusion therefore is that the suit was not premature, and the wrong decision on this point arrived at by the Courts below was due mainly to the statement contained in the plaint itself.
9. The only other point that requires consideration is, as to whether the claim for injunction should fail by reason of the suit having abated against the heirs of defendant 3. In my opinion, the answer to this question must be given in the negative. It is perfectly true that the decree in the Section 105 case could not be set aside in the absence of defendant 3 or his heirs. But as the plaintiff was not a party to the proceeding, it was not necessary for her to have the decree set aside. She can ask the Court to give her an injunction on the footing that the decree was not binding on her, and as the certificate was issued at the instance of defendants 1 and 2 only, and defendant 3 was not party to the certificate proceeding, there is nothing in law which stands in the way of her getting an injunction restraining defendants 1 and 2 from [enforcing the certificate in respect of a demand exceeding the amount of rent that was payable originally in respect of the tenure.
10. The result therefore is that this appeal is allowed, the judgment of Jack J., and that of the District Judge, Alipur, are set aside. The decree of the lower Court is restored, subject to this modification that defendants 1 and 2 would be restrained by an injunction from enforcing the certificate, not in its entirety, but only in respect of the amount that is in excess of the rents payable by the tenure-holders prior to the enhancement made under Section 105, Ben. Ten. Act. The plaintiff will be entitled to get half the costs in all the Courts.
Nasim Ali, J.
11. I agree.