Skip to content


Bhogaban Chunder Das and ors. Vs. Mokunda Bullav Kar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1894)ILR21Cal514
AppellantBhogaban Chunder Das and ors.
RespondentMokunda Bullav Kar
Cases ReferredAdhirani Narain Kumari v. Raghu Mohapatro I.L.R.
Excerpt:
withdrawal of suit - civil procedure code (act xiv of 1882), section 373--applicability of section 373 to suits under act x of 1859. - .....code by itself, and therefore section 373 of the civil procedure code was not applicable to rent suits under act x of 1859.7. in the case of nagendro nath mullick v. mathura mahun parhi i.l.r. 18 cal. 368 to which we have just referred, the question that came before the court for consideration is not precisely that which we have to consider in this case. but in deciding the question which the court was then called upon to decide, they had to consider whether act x of 1859 was a complete code by itself or not, and the learned judges held that it was so.8. we might also refer to an earlier case on the point decided on the 16th september 1862 by a bench of three judges, consisting of sir barnes peacock, c.j., and bayley and kemp, jj., the case of doyal chunder ghose v. dwarka nath.....
Judgment:

Ghose and Rampini, JJ.

1. This appeal arises out of a suit for rent for the years 1295 and 1296 brought before the Deputy Collector of Cuttack under the provisions of Act X of 1859.

2. It appears that the plaintiffs had previously instituted a suit for the rent of the same period in the same Court; but before the trial came on, certain formal defects having been discovered in the suit, an application was made by the plaintiffs to be allowed to withdraw it, with liberty to bring a fresh suit upon the same cause of action. The suit was accordingly allowed to be withdrawn; but no distinct order was recorded by the Revenue Court permitting the plaintiffs to bring a fresh suit.

3. The defendant contended in the Court of First Instance, and the contention has been repeated before us in second appeal, though it seems to have been practically abandoned in the Court of Appeal below, that the provisions of Section 373 of the Civil Procedure Code are applicable to suits under Act X of 1859; and that, because no permission had been accorded by the Court when the previous suit was withdrawn, permitting the plaintiffs to bring a fresh suit upon the same cause of action, this suit could not be maintained.

4. The question that arises upon this contention is shortly this, whether the provisions of Section 373 of the Civil Procedure Code apply to a suit under Act X of 1859.

5. Section 23 of Act X of 1859 enacts, among other matters, that all suits for arrears of rent due on account of land either khiraji or lakhiraj shall be cognizable by Collectors of land revenue, and shall be instituted and tried under the provisions of that Act, and, except in the way of appeal as provided in it, shall not be cognizable in any other Court, or by any other officer, or in any other manner. And the Act lays down the procedure to be followed in regard to the institution of a suit for rent, and in regard to the trial thereof. There is no provision in the Act as to the withdrawal of a suit; but we imagine that it is an inherent power in every Court to allow a suit to be withdrawn upon application made by the plaintiff. There is no indication in the Act itself that the provisions of Section 373 of the Civil Procedure Code would be applicable to a suit brought under that Act.

6. This point seems to have been recently considered by a Division Bench of this Court in the case of Radha Madhab Santra v. Lakhi Narain Roy Chowdhry (ante, p. 428), and the learned Judges, following the decision of the Full Bench in the case of Nagendro Nath Mullick v. Mathura Mahun Parhi I.L.R. 18 Cal. 368, held that Act X of 1859 was a complete Code by itself, and therefore Section 373 of the Civil Procedure Code was not applicable to rent suits under Act X of 1859.

7. In the case of Nagendro Nath Mullick v. Mathura Mahun Parhi I.L.R. 18 Cal. 368 to which we have just referred, the question that came before the Court for consideration is not precisely that which we have to consider in this case. But in deciding the question which the Court was then called upon to decide, they had to consider whether Act X of 1859 was a complete Code by itself or not, and the learned Judges held that it was so.

8. We might also refer to an earlier case on the point decided on the 16th September 1862 by a Bench of three Judges, consisting of Sir BARNES Peacock, C.J., and Bayley and Kemp, JJ., the case of Doyal Chunder Ghose v. Dwarka Nath Misser Marsh, 148. In that case, the learned Judges held that the provisions of Section 97 of Act VIII of 1859, which was in the same terms as Section 373 of the present Civil Procedure Code, did not apply to suits under Act X of 1859.

9. So far therefore as this Court is concerned, the question seems to be concluded by authority.

10. But the learned Counsel for the appellant has called our attention to the case of Nilmoni Singh Deo v. Taranath Mukerjee I.L.R. 9 Cal. 295 : L.R. 9 I.A. 174, as also to the cases of Madho Prakash Singh v. Murli Monohar I.L.R. 5 All. 406 and Adhirani Narain Kumari v. Raghu Mohapatro I.L.R. 12 Cal. 50.

11. In the case of Nilmoni Singh Deo v. Taranath Mukerjee I.L.R. 9 Cal. 295 : L.R. 9 I.A. 174 the question that was discussed before the Privy Council was simply whether a Revenue Court under Act X of 1859 had authority to transfer an execution case from its own file to the file of a civil court in another district for the purpose of execution of the decree; and the Judicial Committee held that the scope of Act X of 1859 appears to be only to provide for the execution of the decree of the Collector within his own jurisdiction, and that there is nothing in the Act to forbid the conclusion that such executions are left to the operations of Act XXXIII of 1852 or the corresponding portion of Act VIII of 1859; that is to say, there being nothing in the Act X of 1859 to prohibit a Collector acting under that Act from transferring an execution case from his own file to the file of a civil court, the procedure laid down in the Civil Procedure Code might be followed in the matter of the transfer of the decree for execution to some other court.

12. In the case before the Allahabad High Court, no doubt a question similar to that which is raised in the present case was discussed; but then the learned Judges had to consider, not the provisions of Act X of 1859, but those of Act XII of 1881, which is only applicable to the North-Western Provinces, though it may be that this latter Act contains provisions similar to those in Act X of 1859.

13. As to the case of Adhirani Narain Kumari v. Raghu Mohapatro I.L.R. 12 Cal. 50 the question which the learned Judges had to consider was, whether the provisions of Section 43 of the Civil Procedure Code were applicable to a suit under Act X of 1859.

14. The question whether Section 373 of the Code is applicable to suits under Act X of 1859 does not seem to have been considered in any other case than the cases we have already referred to; and we think we ought to guide ourselves in the decision of the question raised in this case by the opinion that has so often been expressed by this Court.

15. Upon these grounds we overrule the plea of the learned Counsel for the appellant.

16. The second question raised before us is this, whether the plaintiff was bound to produce a certificate of succession under the Succession Act, VII of 1889, before he could obtain a decree for the rent claimed in this case.

17. Now, Section 4 of the Act, to which reference has been made, among other things enacts: 'The word 'debt' in Sub-section (1) includes any debt except land revenue or profits payable in respect of land used for -agricultural purposes.' Now, on reference to the lease filed in this case, it appears to us to be clear enough that the lands in respect of which rent is now claimed are lands which have been used or let out for agricultural purposes. 'The learned Counsel for the appellant argued that it was a lease, not only of agricultural lands, but also of phalkar, bankar, jalkar, and homestead lands, and therefore Section 4 had no application. We are not prepared to accept this contention. It seems to be clear upon a perusal of the lease that the real object for which it was granted was for agricultural purposes. That being so, we think this objection also cannot be sustained.

18. The appeal is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //