S.K. Ghose, J.
1. This Rule arises out of an application for pre-emption under Section 26(F), Bengal Tenancy Act. The petitioners are co-sharer landlords in respect of the tenure. The opposite parties Nos. 1 and 2 purchased the land of a raiyati holding under that tenure and notice of the transfer was served by post on petitioner No. 1 and opposite party No. 2 on 8th July 1935. According to the case made in the petition, on 25th July 1935, the petitioners' pleader went to Court with the application for pre-emption to be filed on behalf of the petitioners and chalans and the necessary amount of Rs. 77 to be deposited on account of the price and the landlord's transfer-fee. It is further stated that the said application was filed in Court on 25th July and the chalans were filed before the Sheristadar, but for want of time the chalans were not passed on the same date and were passed on the next date, that is, 26th July, when the necessary amount was deposited. The application itself was registered on 27th July and notices were ordered to be issued on the opposite parties. Thereafter adjournments were granted for various reasons. Finally the matter came up for hearing on 7th December 1935. On that date the Munsif passed the order dismissing the petitioners' application for pre-emption on the ground that, as the deposit was made on 26th July and the application was filed on the 25th, the petitioners were not entitled to any relief. Against that order the present Rule has been obtained.
2. The stamp on the application shows that it was filed in Court on the 25th July. The chalan for Rs. 77 was passed by the Sheristadar on the 26th July. Then there is an order of the Munsif dated the 26th July: 'Put up after the receipt of chalan'. Then the order of the Munsif dated 27th is 'Chalan received. Register'. On behalf of the petitioners it is pointed out that in this case the Court accepted the money, issued notices, etc., and then after five months proceeded to dismiss the application. Under Section 26-F, Sub-section (1), Clause (d) the petitioner would be entitled to apply within two months of the service of notice. Consequently if the application had been dismissed for want of deposit, then and there, the petitioner would have had ample time within which he could have filed another application after making the deposit. Under Sub-section (2) 'the application shall be dismissed unless such landlord at the time of making it deposits in Court the amount', etc. It is contended for the petitioners that the expression 'making' does not mean filing, but that it refers to some time when the application is brought to the notice of the presiding officer of the Court who has power to dismiss. This is the point to be decided in this Rule. Our attention has been drawn to certain decisions and it would appear that to some extent there is conflict of judicial opinion. In Sidheswari Prosad Roy Chowdhury v. Gendu Mia (1930) 61 C L J 27 the deposit contemplated by Section 26. F (2) was made on the date following that of the application, but both the application and the deposit were within the period of two months of the service of notice. D.N. Mitter, J. took the view that Section 26-F should be construed liberally, the intention of the Legislature being that the deposit should be made within two months from the date of notice. In that view he held that the application and the deposit were in order. In Jatindra Kumar v. Chandra Kumar : AIR1934Cal661 the application was filed on a certain date and along with it chalans for the deposit of the money required were filed, but the chalans were passed and the deposit of the money was made on a subsequent date. Mallik, J. held that the application was in order. He remarked:
The landlords in the circumstances did all that they had under the law to do and if they did all that they had to do towards making a deposit what they actually did on the date when the applications were filed was in my judgment a deposit that was contemplated by the law to have been made by the applicants.
3. A contrary note was struck in Girish Chandra v. Jadavpur Estate Ltd. : AIR1935Cal389 , which was before a Division Bench presided over by Guha and Bartley, JJ. It appears that in that case the application was filed on 28th August 1933, the chalan for the amount required was filed on the following date. The judgment of the Court was that such deposit, even though within two months from the date of the receipt of notice by the landlord, will not save the application. It was remarked:
The law is imperative on the point, and expressly provides for the dismissal of the application for pre-emption, unless at the time of making the application, the deposit as required by Section 26-F (2) Bengal Tenancy Act is made by the applicant.
4. It is contended by Dr. Pal for the opposite parties that we must either follow this ruling or refer the matter to a Full Bench. After giving the matter due consideration, we are of opinion that it is not necessary to follow either course. It seems from the judgment in this case that the Court was not considering a possible distinction between 'filing' and 'making' an application. The view of D.N. Mitter, J. in the case in Sidheswari Prosad Roy Chowdhury v. Gendu Mia (1930) 61 C L J 27 was not brought to the notice of the Court. But the decision of Mallik, J. in Jatindra Kumar v. Chandra Kumar : AIR1934Cal661 was distinguished on the ground that in the latter case the application was accompanied by the chalans for the deposit to be made. In the view taken by the Court however we do not see how such distinction can be made, because as a matter of fact in the case before Mallik, J. the deposit was actually made sometime later and this fact did not create any impression on Mallik, J. The latter took the same view as was favoured by D.N. Mitter, J. in Sidheswari Prosad Roy Chowdhury v. Gendu Mia (1930) 61 C L J 27. On the contrary the decision which was actually given in the case in Girish Chandra v. Jadavpur Estate Ltd. : AIR1935Cal389 is in conflict with the decision in Jatindra Kumar v. Chandra Kumar : AIR1934Cal661 which was sought to be distinguished. The authority of the decision in Girish Chandra v. Jadavpur Estate Ltd. : AIR1935Cal389 is further weakened by the decision of Guha, J. in two other cases, namely in Radhika Lal v. Satis Chandra (1935) 39 C W N 1300 and Abdul Hai v. Abdur Rahman : AIR1935Cal258 , in both these cases the deposit fell short, but the applicant was allowed time to remedy that defect by making another deposit. The effect of these decisions therefore favours the view that the expression 'time of making' the application in Sub-section (2), Section 26-F must be given a liberal interpretation. Dr. Pal for the opposite parties has contended that the expression 'apply' in Clause (d), Sub-section (1) and the expression 'at the time of making it' in Sub-section (2), Section 26-F must refer to the same point of time, that is, the date when the application is presented to some officer of the Court.
5. We are not now considering Clause (d), Sub-section (1), but we are of opinion that it is necessary to hold that the point of time, in the two cases must be the same. In Sub-section (7) proceedings in ejectment will be deemed to have commenced at the date on which the landlord applied to the Court under Sub-section (1). But the matter in Sub-section (2) is not the same, because there the landlord is to make the application before an authority who has power to dismiss and that must be the presiding officer of the Court. Dr. Pal has referred to Section 141, Civil P.C. and contended that proceedings on an application under Section 26-F must be in the nature of filing a plaint in a suit. Order 4, Rule 1 of the Code prescribes that a suit shall be instituted by presenting a plaint to the Court or to such officer as it appoints in its behalf. Our attention has been drawn to the Courts Civil Rules and Circular Orders, Ch. II, Vol. I, p. 13, which lays down that an order appointing an officer to receive a plaint must be in writing. Dr. Pal has also referred to Section 3, Limitation Act, which enacts that every suit instituted, appeal preferred and an application made after the period of limitation shall be dismissed. As regards the institution of suit I have already referred to Order 4, Rule 1. In the case of an appeal being preferred, the procedure is prescribed by Order 41, Rule 1. which shows among other things the memorandum of appeal shall be presented to the Court or to such officer as it appoints in its behalf. But as to the making of an application, there is no provision in the Code of a similar nature. Also there is no rule in the Courts Rules and Circular Orders to the effect that an application may be made by presenting it to an officer of the Court duly authorized in that behalf. Our attention has been drawn to Rule 31, p. 8 of the G.R. and C.O., which merely indicates that petitions can be disposed of by an order passed in Court as soon as they are filed. We think it hardly likely that it could have been the intention of the Legislature that an application of this nature which was liable to be dismissed, unless the landlord at the time of making it deposits in Court the necessary amount, would be dismissed long after the date of filing it. As D.N. Mitter, J. remarked in the case in Sidheswari Prosad Roy Chowdhury v. Gendu Mia (1930) 61 C L J 27:
What the Legislature apparently intended was that the landlord would be entitled to claim his right of pre-emption within two months of the service of notice issued under Section 26-C, Bengal Tenancy Act, provided the application is accompanied with the necessary deposit referred to in Clause 2. It would be unreasonable and indeed too harsh to hold that because the deposit was made a day later, although the application made on 15th February would be in time, still his application would be liable to be dismissed.
6. Sub. Section (2) says that the application shall be dismissed unless the deposit is made 'at the time of making the application'. The wording of the section is perhaps not happy and, if the words used are taken as meaning that the application and the deposit should be made simultaneously, that would amount to an absurdity. As Dr. Pal has said, the meaning is that the deposit is to be made at or before the time of making application. But in any case the application must be brought to the notice of the Court which has power to dismiss. Therefore the point of time is not the time at which the application is presented to some officer of the Court, but it is the point of time at which the application is brought to the notice of the Court. In the present case it was not brought to the notice of the Court until 26th July when the deposit had been made, if not the 27th when the application was ordered to be registered. In that view therefore the application is in order. The order complained against must be reversed and the application must be sent down to the lower Court for consideration on the merits. The rule is made absolute accordingly with costs, hearing fee being assessed at three gold mohurs. Future costs to abide the result.