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Khedu Mahto Vs. Budhun Mahto - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1900)ILR27Cal508
AppellantKhedu Mahto
RespondentBudhun Mahto
Cases Referred and of Priag Nath Sah Deo v. Mura Munda
Excerpt:
second appeal - suit for arrears of rent--chota nagpore landlord and tenant procedure act (bengal act i of 1879), sections 37, 38, 47, 49-56, 62-67, 76, 98, 135, 137, 144--civil procedure code (xiv of 1882), sections 3, 4, 584. - .....negative. it is urged by the appellant that a second appeal lies under section 584 of the code of civil procedure. it is true an appeal lies under that section 'unless otherwise provided by this code or by any other law,' and by section 4 of the same code nothing contained in that code shall be deemed to affect 'any law heretofore or hereafter passed under the indian councils act, 1861, by a governor or a lieutenant-governor in council, prescribing a special procedure for suits between landholders and their tenants,' the chota nagpore landlord and tenant procedure act (bengal act i of 1879) is concededly covered by section 4 of the code, and the question we have to decide is whether, upon the construction of that act, a second appeal lies. the sections, upon which the question turns,.....
Judgment:

Francis W. Maclean, K.C.I.E., C.J.

1. It is, I think, reasonably clear that the question referred to us ought to be, and must be, answered in the negative. It is urged by the appellant that a second appeal lies under Section 584 of the Code of Civil Procedure. It is true an appeal lies under that section 'unless otherwise provided by this Code or by any other law,' and by Section 4 of the same Code nothing contained in that Code shall be deemed to affect 'any law heretofore or hereafter passed under the Indian Councils Act, 1861, by a Governor or a Lieutenant-Governor in Council, prescribing a special procedure for suits between landholders and their tenants,' The Chota Nagpore Landlord and Tenant Procedure Act (Bengal Act I of 1879) is concededly covered by Section 4 of the Code, and the question we have to decide is whether, upon the construction of that Act, a second appeal lies. The sections, upon which the question turns, are Sections 37 and 144.

2. Section 37 provides that 'all suits for arrears of rent,' and this was a suit for arrears of rent, 'shall be cognizable by the Deputy Commissioners, and shall be instituted and tried under the provisions of this Act and shall not be cognizable in any other Court, except in the way of appeal as provided in this Act.'

3. This language is clear and precise, and no question can properly arise as to its construction. We must then ascertain what is the provision for appeal in the Act? This takes us at once to Section 144.

4. Section 144 runs as follows: In all suits other than those in which, when tried and decided by a Deputy Commissioner, the judgment of the Deputy Commissioner is declared to be final,' which is a case coming under Section 137, 'or when tried and decided by a Deputy Collector an appeal is allowed to the Deputy Commissioner, an appeal from the judgment of the Deputy Commissioner or Deputy Collector shall lie to the Judicial Commissioner of the Division, unless the amount or value in dispute exceed five thousand rupees; in which case the appeal shall lie to the High Court.'

5. This language indicates with sufficient clearness to what tribunal the appeal is to lie. There is no suggestion of any appeal to this Court, save in cases when the amount or value in dispute is over Rs. 5,000. When the Act specially allows an appeal in a certain class of case to the High Court the inference is irresistible that it was only in that class of case that such an appeal was to lie: expressio unius est exclusio alterius. Beading Sections 37 and 144 together, and no difficulty of construction arises, it is to my mind perfectly clear that no appeal to the High Court, save in the stipulated case, was intended or provided for. And I may add that when the Code of Civil Procedure was intended to apply, the Act so expressly states. There is nothing about Section 584 applying.

6. This really disposes of the question.

7. We have, however, been referred to three or four cases, in which it is alleged that a different view has been taken. In a recent but unreported case, however, decided in May 1898, the case of Mul Chand Sahu v. Hukum Singh (Appeal from Appellate Decree No. 194 of 1897) it was held, on review, that there was no second appeal, nor do I think the authorities would justify us in saying, as the appellant suggests, that a practice has grown up of allowing an appeal to this Court in these cases. How far such a practice would be sustainable if it contravened an Act of the Legislature is open to grave doubt. But be that as it may, in none of these cases is any reference made to the provisions of Section 37 of Bengal Act I of 1879; and I do not think I am doing any injustice to the learned Judges who decided those cases in saying that except, perhaps, in the case of Ramjan Khan v. Raman, Chamar (1882) 11 C.L.R., 480, which was a different case from the present, the point we have now to decide was not seriously brought to their attention.

8. In my opinion a second appeal does not lie and the authorities referred to in the second question submitted to us, so far as they are authorities for holding that a second appeal does lie, must be taken to have been wrongly decided.

9. The appeal must be dismissed with costs here, and in the referring Court.

Macpherson, J.

10. I am of the same opinion. It is conceded that a second appeal will not lie to this Court unless the provisions of Section 584 of the Code of Civil Procedure are applicable to the case. But the provisions of Section 4 of that Code seem to me to bar the application of Section 584. It cannot, I think, be said, having regard to the provisions of Sections 37,135, 137 and 144 of Bengal Act I of 1879, that Act does not prescribe a special procedure as regards appeals in suits between landlords and tenants in the Chota Nagpore District. I therefore agree in thinking that no second appeal lies in this case,

Banerjee, J.

11. I am of the same opinion. The only provision of the law under which a second appeal could in this case lie would be Section 584 of the Code of Civil Procedure. But that provision must be taken subject to the limitation contained in the section itself, which is in these words, namely, 'unless when otherwise provided by this Code, or by any other law,' and subject also to Section 4 of the Code, which enacts that nothing contained in the Code except as provided in the second paragraph of Section 3 'shall be deemed to affect any law passed under the Indian Contract Act, 1861, by a Lieutenant-Governor in Council,' I am quoting only so much of the provision as bears upon this case, 'prescribing a special procedure for suits between landholders and their tenants or agents.' The question then is reduced to this, namely, whether there is any special procedure prescribed by Bengal Act I of 1879 for suits between landlords and their tenants. And a special procedure, we find, is prescribed by that Act for suits between landlords and their tenants. It is argued that the effect of Section 4 of the Code of Civil Procedure is to exclude only that portion of the Code which affects any law relating to procedure prescribed in Bengal Act I of 1879; and that as this last mentioned Act makes no provision for a second appeal, the application of Section 584 of the Code will not affect any procedure prescribed in that Act.

12. But is that so? As has been pointed out in the judgment just delivered by the learned Chief Justice, if Section 144 of Bengal Act I of 1879 stood alone, there might have been some ground for that contention; but that section, read with the concluding part of Section 37 of the Act, makes it clear that if Section 584 of the Code of Civil Procedure is to have application to this case, it will, to that extent, affect the provisions of Section 37.

Hill, J.

13. I wish only to say that upon reconsideration of this question, I am clearly of opinion that no second appeal lies in a case of this kind. I was a party to the decision in the case of Priag Nath Sah Deo v. Mura Munda (1896) I.L.R., 24 Cal., 249, but the view taken in that case proceeded almost entirely upon what was conceived to be an established course of practice supported by a decision in an unreported case decided by Mr. Justice Tottenham and Mr. Justice Agnew in May 1885, in second appeals Nos. 621 to 625 of 1884. That case, however, does not now appear to me on a reconsideration of the question and after hearing what has been addressed to us today, to have been correctly decided. I entirely agree with what has fallen from the learned Chief Justice and Mr. Justice Macpherson as to the construction of Bengal Act I of 1879 and the effect upon the question now before us of Section 4 of the Code of Civil Procedure.

Rampini, J.

14. I also consider that no second appeal lies in this case. I would only add to what has been said by the learned Chief Justice and my learned brothers that Bengal Act I of 1879 seems to me to contain internal evidence that the provisions of the Code of Civil Procedure are not Applicable to cases arising under that Act, and that therefore Section 584 of the Code of Civil Procedure does not apply. I would refer to Sections 47, 49 to 56 and 62 to 67 of the Act which lay down certain procedure for the trial of cases arising under the Act. These sections would be superfluous if the provisions of the Code of Civil Procedure applied in their entirety to cases arising under Bengal Act I of 1879.

15. I would also refer to Sections 38, 76 and 98 of the Act, which make certain provisions of the Code of Civil Procedure expressly applicable. These would be absolutely unnecessary if the provisions of the whole Code applied to cases under this Act. And I may also in support of this view point to the title of the Act which is described as an 'Act to amend the procedure in suits between landlords and tenants in Chota Nagpore.' Upon these grounds I am clearly of opinion that the provisions of the Code of Civil Procedure do not apply to cases under Bengal Act I of 1879.

16. Moreover, as has already been pointed out by several of my learned brothers, Section 4 of the Code of Civil Procedure expressly excludes the Code from applying to eases between landholders and their tenants. For these reasons I think that no second appeal lies in this case, and that the cases of Ramjan Khan v. Raman Chamar (1882) 11 C.L.R., 480, and of Priag Nath Sah Deo v. Mura Munda (1896) I.L.R., 24 Cal., 249, so far as they hold that a second appeal lies in cases of this nature arising under Bengal Act I of 1879, have not been rightly decided.


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