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Kamini Mohan Vs. Mohan Lal Bayeed - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1947Cal422
AppellantKamini Mohan
RespondentMohan Lal Bayeed
Excerpt:
- .....'amount claimed in the suit' in section 153(b), ben. ten. act, must be read, in the case of a decree passed under section 144, as meaning the amount claimed in respect of the tenancy for or in relation to which the decree in question was passed.12. upon that construction of the section, there was clearly no appeal in the present ease to the lower appellate court. the amount claimed in respect of the tenancy for which the decree executed by the opposite party was passed was only rs. 46-2-3. that being so, it was hit directly by the section and it was not contended before us that any of the exceptions to section 153 had any application.13. in the result, the rule is made absolute. the order of the learned additional district judge dated 4-10-1945, is set aside and that of the learned.....
Judgment:

Chakravartti, J.

1. This rule raises a somewhat interesting question of law under Section 153, Bengal Tenancy Act. The material facts are simple and may be briefly summarised as follows: The opposite party brought a suit, being suit No. 130 of 1942, in the Court of the Second Munsif of Dinajpur Sadar under Section 144, Bengal Tenancy Act and claimed to recover from the petitioner a sum of Rs. 46-2-3 as rent due on account of one tenancy and a further sum of Rs. 23-8-3 as rent on account of another tenancy. Decrees in accordance with Section 144, Bengal Tenancy Act were in due course passed and the opposite party put the decree which he obtained in respect of the first tenancy into execution, and purchased the tenancy himself. Thereupon, the petitioner made an application under Section 174(3), Bengal Tenancy Act for having the sale set aside on the usual grounds, viz., suppression of notices and sale at an abnormal low price. This application succeeded and by an order passed on 15-1-1945, the learned Second Munisf of Dinajpur set aside the sale. He held that the sale proclamation had been fraudulently suppressed.

2. Against that order an appeal was preferred by the opposite party to the District Judge of Dinajpur which came to be disposed of by the learned Additional District Judge. A preliminary objection was taken before him on behalf of the petitioner to the effect that having regard to the provisions of Section 153(b), Bengal Tenancy Act, no appeal lay at all. The learned Judge overruled this contention in the view that in the case of a suit brought under Section 144, Bengal Tenancy Act, 'the amount claimed in the suit,' as contemplated by Section 153(b), was the sum total of the several amounts claimed in respect of the several tenancies. Since, in the present case, the sum total of the amounts claimed in respect of the two tenancies exceeded Rs. 50, the learned Judge held that Section 153 was no bar to the maintainability of the appeal. He then proceeded to deal with the appeal on the merits and held that suppression of the sale proclamation had not been proved. In the result he allowed the appeal and set aside the order of the learned Munsif.

3. Against that appellate order the petitioner obtained the present rule which was issued on only one ground. That ground is to the following effect:

For that the learned appellate Court ought to have held that the appeal from the decision of the Munsif who has got final jurisdiction in respect of the matter in suit was not competent in law.

4. It is to be noticed that taken by itself, Section 174, Bengal Tenancy Act gives a right of appeal against every order setting aside or refusing to set aside a sale. But it has been established by decisions of this Court that Section 174(5) is subject to Section 153. Accordingly, the question involved in the present case must be decided by reference to the terms of the latter section, read, however, with those of Section 144.

5. Before dealing with the question which falls to be decided in this rule, it will be convenient to set out the relevant portions of Sections 153 and 144. Section 153, so far as is material, provides that:

An appeal shall not lie from any decree or order passed either in the first instance or on appeal in any suit instituted by a landlord for the recovery of rent where.... (b) the decree or order is passed by any other judicial officer specially empowered by the High Court to exercise final jurisdiction under this section and the amount claimed in the suit does not exceed Rs. 50.

It is not necessary to set out the exceptions to this section which do not come into play in the present case.

6. From the terms of Section 153 set out above, it will appear that where the decree or order is passed by a Munsif who has been specially empowered by the High Court to exercise final jurisdiction under Section 153, no appeal shall lie if 'the amount claimed in the suit does not exceed Rs. 50.' The question therefore is, what was 'the amount claimed in the suit' in the present ease?

7. On that question it is pertinent to refer to the terms of Section 144(2) which, so far as is material, provides as follows:

A landlord may institute one suit in respect of the rent of more than one tenancy, if the tenancies in respect of the rent of which a suit is brought, are held in similar right and equal status by the same tenant under him : Provided that (i) the claim in respect of each tenancy shall be stated separately in the plaint; (ii) separate decrees shall be made in respect of each tenancy;... (iv) separate court-fees shall be levied on the plaint in respect of the claim on account of each tenancy.

8. What is contended on behalf of the opposite party is that although a suit under. Section 141, Ben. Ten. Act, may comprise claims in respect of several tenancies, it is in law one suit, as the Legislature expressly states. Prom that premises it is further argued that the amount claimed in such a suit must necessarily be the aggregate of the several amounts claimed in respect of the different tenancies. In short, the argument is that since there is only one suit, there can in law be but one amount claimed in the suit, although there may be a special provision for passing separate decrees or making the claim in a distributive manner.

9. We are unable to accede to this contention. In the first place, it would appear from the terms of Section 144 itself, which have been set out already, that there is no one amount claimed in such a suit. The section enacts quite clearly that there shall be a separate claim in respect of each tenancy. Equally clear is the provision that separate decrees shall be passed. If anything further was needed to emphasise the plurality of the claim in such a suit, that is provided by the further provision that separate court-fees must be paid in respect of every claim. In view of these provisions, it is, in our opinion, quite impossible to hold that there is, in a suit framed under Section 144, any one amount claimed. The scheme of the section appears to be that the Legislature only enables the landlord to combine a number of claims in one suit instead of leaving him to the ordinary procedure of bringing separate suits but by such provision the claims in respect of the different tenancies are not unified or consolidated and made one single claim. We are accordingly of opinion that if Section 153, Ben. Ten. Act, is sought to be applied to a suit framed under Section 144, there will not be found any single amount claimed in the suit to which the former section could be readily applied, but in fact several amounts.

10. Next, if one refers to the terms of Section 153 itself, one gets additional support for the view that the sum-total of the amounts claimed in respect of several tenancies in a suit under Section 144 cannot possibly be 'the amount claimed in the suit' within the meaning of the former section. It should be remembered that Section 153 deals with the appealability or otherwise of decrees and orders. When Sub-section (b) of Section 153 speaks of 'the amount claimed in the suit,' this expression must obviously be read and understood by reference to the other expression occurring in the section, viz., 'the decree or order passed by any other Judicial Officer.' In the case of decrees made in a suit under Section 144, the appealability of each decree is being dealt with by the sub-section. To make the point clear, in a suit framed under Section 144, there would be, under the terms of that section, not one decree but several decrees; and Section 153, when it is sought to be applied to decrees passed under Section 144, must be applied to the different decrees separately. The decree or order contemplated by Section 153(b), in such a case, would be one or other of the decrees passed under Section 144 and 'the amount claimed in the suit' would be the amount claimed with respect to the particular tenancy for the rent of which the particular decree was passed. The opposite party could not deny that what had to be decided in the case was not the appealability of the two decrees taken together, but that of one of them. The construction contended for by the opposite party would lead to the result that while the decree or order contemplated by Section 153 in the case of a suit brought under Section 144, would be one or other of the several decrees, yet 'the amount claimed in the suit' would be not the amount claimed in respect of the tenancy for which that decree was passed, but the sum-total of all the amounts claimed in respect of all the tenancies. Such a construction, in our view, is plainly untenable. When the matter for enquiry is whether one of the several decrees is appealable, the relevant 'amount claimed in the suit' can only be the amount of the claim with respect to which that particular decree was passed and not the arithmetical total of that amount and other amounts with which the decree in question has no connexion.

11. In our opinion, the phrase 'amount claimed in the suit' in Section 153(b), Ben. Ten. Act, must be read, in the case of a decree passed under Section 144, as meaning the amount claimed in respect of the tenancy for or in relation to which the decree in question was passed.

12. Upon that construction of the section, there was clearly no appeal in the present ease to the lower appellate Court. The amount claimed in respect of the tenancy for which the decree executed by the opposite party was passed was only Rs. 46-2-3. That being so, it was hit directly by the section and it was not contended before us that any of the exceptions to Section 153 had any application.

13. In the result, the Rule is made absolute. The order of the learned Additional District Judge dated 4-10-1945, is set aside and that of the learned Munsif restored. We make no order as to costs.

Ellis, J.

I agree.


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