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Chowdhry Raghu Nath Sarun Singh and ors. Vs. Dhodha Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenancy
CourtKolkata
Decided On
Judge
Reported in(1891)ILR18Cal467
AppellantChowdhry Raghu Nath Sarun Singh and ors.
RespondentDhodha Roy and ors.
Excerpt:
bengal tenancy act (viii of 1885), section 40, clause 5--order commuting bhowli rent to nagdi rent--omission to state time when order is to take effect. - .....for us to consider now, was that, by an order under section 40 of the bengal tenancy act, the bhowli rent had been commuted into a money rent.2. the munsif held that this defence could not be entertained, as the order under section 40 set up by the defendants did not state the time from which it was to take effect, and accordingly he gave the plaintiffs a decree upon the footing that the rent was still bhowli.3. on appeal by one of the defendants, the subordinate judge reversed that decision, holding that the order under section 40 must be taken to operate from the date thereof.4. in second appeal it is contended that this decision is wrong, and that the provisions of section 40, clause 5, are imperative, and should be strictly complied with before an order under that section can.....
Judgment:

Banerjee, J.

1. This appeal arises out of a suit for arrears of rent. The plaintiffs claimed the rent as due under the bhowli system. The point urged in defence, which it is necessary for us to consider now, was that, by an order under Section 40 of the Bengal Tenancy Act, the bhowli rent had been commuted into a money rent.

2. The Munsif held that this defence could not be entertained, as the order under Section 40 set up by the defendants did not state the time from which it was to take effect, and accordingly he gave the plaintiffs a decree upon the footing that the rent was still bhowli.

3. On appeal by one of the defendants, the Subordinate Judge reversed that decision, holding that the order under Section 40 must be taken to operate from the date thereof.

4. In second appeal it is contended that this decision is wrong, and that the provisions of Section 40, Clause 5, are imperative, and should be strictly complied with before an order under that section can have any effect.

5. We think that this contention is sound. Clause 5 of Section 40 runs thus: 'The order shall be in writing, shall state the grounds on which it is made and the time from which it is to take effect, and shall be subject to appeal in like manner as if it were an order made in an ordinary revenue proceeding.' The object of requiring the time from which the order is to take effect to be stated is to enable the parties distinctly to know from what date the new arrangement is to come into operation. It ought not to be left in uncertainty, and, in the absence of any date being fixed in the order, the order must be taken to be practically inoperative, or, at any rate, to remain in suspense until it is amended by the specification of the time of its operation. It may be that the omission in this case to specify the time was altogether inadvertent, but we think it was the business of the parties, in order to avail themselves of the effect of the order, to have the time specified. We think, therefore, that the decision of the Lower Appellate Court on this point is erroneous and should be reversed, and the case should be sent back to that Court for determination of the other points that may arise in the appeal before it. The costs will abide the result.


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