Skip to content


Nural HossaIn Mallik and anr. Vs. Mihilal Sheikh and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1948Cal144
AppellantNural HossaIn Mallik and anr.
RespondentMihilal Sheikh and ors.
Cases ReferredSidheswari Prosad Roy v. Gendu Mia
Excerpt:
- .....the application he had the money with him and it was only due to the rules of procedure as to making deposits into the treasury that he was prevented from making the deposit on the day the application was made. in those circumstances it was hold by henderson j. that the deposit should be treated as made at the time of making the application.10. it will appear from the above cases that three of them, namely, the cases in jotis chandra biswas v. jath : air1937cal661 , jatindra kumar v. chandra kumar : air1934cal661 and monilal pal v. gur chandra : air1934cal661 were decided on their special facts. in each case, there were present circumstances which enabled the court to hold that in substance the deposit had been made at the time of making the application. neither of those decisions.....
Judgment:

Chakravartti, J.

1. The principal question involved in this Rule is whether an application for pre-emption under Section 26F, Bengal Tenancy Act, can be entertained if the deposit contemplated by the section is not made at the time of making the application, but is made subsequently within the period of limitation. The question has arisen out of the following facts.

2. A certain occupancy holding was owned by the three opposite parties, of whom two namely opposite parties Nos. 2 and 3, sold their 8 annaa share to the petitioner on 17th February 1944. Notice of this sale was served on the remaining cosharer tenant, namely opposite party No. 1, on 12th December 1944. On 3rd February 1945, he made an application under Section 26F, Ben. Tenancy Act, but did not, at the time of making the application, deposit in Court the amount of consideration money as stated in the notice together with the statutory compensation thereon. It appears that the fact that the deposit was not made was brought to the notice of the Court and an order was obtained by which the applicant was permitted to make the deposit by 3rd March 1945. Actually, however, opposite party No. 1 did not wait all that time, but made the deposit on 6th February following.

3. The application for pre-emption was opposed by the petitioner on three grounds. It was contended in the first place that no deposit, as required by Sub-section (2) of Section 26F, having been made at the time of making the application, the application could not be entertained It was said in the second place that the applicant was not a co-sharer at all, since the purchase, in the strength of which he claimed to be a co-sharer, had been made prior to the year 1928 when occupancy holdings were not transferable and since he had not been recognised by the landlord as a tenant. It was contended lastly that the subject-matter of the transfer was not an occupancy holding at all and consequently no question of any application under Section 26F? could possibly arise.

4. The learned Munsif gave effect to the first objection and dismissed the application on the ground that the making of the deposit, as enjoined by S 26F (2), was imperative and an application which was not accompanied by such a deposit could not be entertained at all. On appeal, however, the learned District Judge took a contrary view. He held that Section 26P (2) should be liberally construed, as in fact it had been in certain decisions of this Court, and that since the deposit had been made before the expiry of the period of limitation, the application should be entertained.

5. As regards the second objection, namely that the applicant was not a co-sharer tenant at jail, the learned Judge referred to the Record of Bights which described him as a co-sharer tenant and further to the notice under Section 260, served by the petitioner himself, in which the applicant was described as a co-sharer. The learned Judge held that since the petitioner had adduced no evidence in rebuttal of the presumption created by the Record of Rights and had not shown the admission made by him in the notice under Section 260 to have been wrong, his objection that the applicant was not a co-sharer tenant could not be sustained. The third ground, taken in the petition o objection, does not seem to have been pressed before the learned Julge. In the result he set aside the order of the learned Munsif and allowed the application of the opposite party No. 1 It was against this order that the present rule was obtained.

6. Mr. Sen, who appeared on behalf of the petitioner, repeated before us the two grounds taken by his client before the learned District Judge and took also the third ground namaly, that the subject-matter of the transfer was not an occupancy holding at all.

7. The second and the third grounds may be disposed of at once. Nothing that vlr. Sen said Could shake the finding of the learned Judge that the opposite party No. 1 was in fact a co-sharer tenant. As to whether the subject-matter of the purchase was an occupancy holding, his client is an no better position, because on the authority of the series of decisions of this Court he is precluded from contending that it' is not an occupancy holding since he had himself described it as such in the notice under Section 260.

8. The really substantial contention urged by Mr. Sen was the first one. On the question involved in that contention, there has been as noticed by the learned Judge, some apparent conflict of opinion in the decisions of this Court. But when one looks into those decisions a little closely, one finds that they can all stand together, except perhaps one.

9. The decision directly in point is that of Guha and Bartley JJ. in Girish Chandra Ghose v. Jadavpur Esta Ltd. : AIR1935Cal389 . That was a decision under the corresponding provision of the old Section 26F, but the language, for all practical purposes, was identical. It was held by their Lordships that if the deposit required by the section was not made along with the application, the application was bound to be dismissed, and a deposit made on a subsequent date but within the period of limitation, could not be of the slightest avail. In Sidheswari Prosad Roy v. Gendu Mia ('35) 61 C.L.J. 27, however, D.N. Mitter J., sitting singly, took a different view. That again was a case under the old Section 26P, but the learned Judge held that the section, though expressed in a categorical form, should receive a liberal construction. Reference was made to Section 17, Provincial Small Cause Courts Act and decisions there under to the effect that if an application for setting aside's decree and the deposit of the decretal amount were both made within the period of thirty days but on different dates, the application would be maintainable. A similar construction, it was held, should be adopted in the case of Section 26F as well and it was observed that any other view of the section would operate harshly on applicants. The third case to which reference must be made is the decision of R.C. Mitter J., sitting singly, in Sachindra Nath v. Trailokya Nath : AIR1936Cal576 . There is, in fact, no decision on the question in that case, but only an observation that if it were necessary to decide the point, the learned Judge would have been inclined to accept the view expressed by D.N. Mitter J. rather than the view taken by Guha and Bartley JJ No reasons, however, were given for this intended preference. A fourth case in which the matter came up for consideration was Jatindra Kumar v. Chandra Kumar : AIR1934Cal661 . In that case, the application was filed on a certain date and along with it challans for the deposit of the money required were also filed, but the challnns were presented and the deposit of the money was actually made on a subsequent date. Mallik J. referred to some of the decisions in which this matter had been derlt with, but ultimately based his conclusion on the fact, appearing from the circumstances of the case, that the applicants had done all that they could possibly do and in the circumstances the deposit was to be taken as made at the time of making the application. In a fifth case, namely, Jotis Chandra Biswas v. Jadu Nath : AIR1934Cal661 . The facts were that the application was filed on a certain day and the deposit was made on the next day, but the application was brought to the notice of the Court only after the deposit had been made which was on a date within the period of limitation. It was held that in the circumstances the application was made in accordance with law inasmuch as there was a distinction between the filing of an application and the making of it. An application, it was observed, could not be treated as made till it was brought to the notice of the Court and since, in the case before their Lordships, at the time when the application was brought to the notice of the Court, the deposit had already been made, what came up before the Court was application accompanied by the required deposit. The last decision cited before us was one of Henderson J. in Monilal pal v. Gur Chandra : AIR1934Cal661 . The facts there were that the application was made on a certain day but the money was paid into the treasury on the following day. There was however an affidavit by the applicant, which was not traversed by the opposite party, to the effect that even at the time of filing the application he had the money with him and it was only due to the rules of procedure as to making deposits into the treasury that he was prevented from making the deposit on the day the application was made. In those circumstances it was hold by Henderson J. that the deposit should be treated as made at the time of making the application.

10. It will appear from the above cases that three of them, namely, the cases in Jotis Chandra Biswas v. Jath : AIR1937Cal661 , Jatindra Kumar v. Chandra Kumar : AIR1934Cal661 and Monilal pal v. Gur Chandra : AIR1934Cal661 were decided on their special facts. In each case, there were present circumstances which enabled the Court to hold that in substance the deposit had been made at the time of making the application. Neither of those decisions is of any assistance to the opposite party No. 1 in the present case. It is not his case that he had the money ready with him at the time of making the application, nor that he was prevented from making the deposit on the day of making the application by any rules of official procedure, nor that the deposit had in fact been made before the application was brought to the notice of the Court. On the other hand, it appears clearly from the order recorded on 3-2-1945 that not only was the deposit not made at the time of making the application, but that the application was immediately brought to the notice of the Court which took note of the fact that the necessary deposit was not being made and purported to grant an extension of time for the1 purpose. It is clear that no extenuating circumstances of the kind relied on in the three cases which I have referred, can be said to exist in the present case.

11. The decision of R.C. Hitter J., in Sachindra Nath v. Trailokya Nath : AIR1936Cal576 may be put on one side, since the matter is not really dealt with by the learned Judge. We are then left with only two decisions, namely, that of Guha and Bartley JJ. in Girish Chandra Ghose v. Jadavpur Esta Ltd. : AIR1935Cal389 and of D.N. Hitter J. in Sidheswari Prosad Roy v. Gendu Mia ('35) 61 C.L.J. 27. The views respectively taken in those two decisions have already been stated but it may be useful at this stage to refer to the terms of the section. Sub-section (2) of Section 26F reads as follows:

The application shall be dismissed unless the applicant or applicants at the time of making it deposit in Court the amount of the consideration money or the value of the transferred portion or share of the holding as stated in the said notice, together with compensation at the rate of ten per centum of such amount.

The crucial words are 'the application shall be dismissed unless the applicant or applicants, at the time of making it, deposit in Court the amount' required. D.N. Hitter J. had before him a provision of law expressed in the same language but he refrained from construing that language in its ordinary sense, because of the hardship which ha thought would result from such construction. It is, however, a well-settled rule of law that it is better that hardship should be caused in one or two individual cases than that the certainty of the law, particularly of statute law, should in any way be disturbed by artificial constructions. When the language of a provision is clear, it cannot be strained or twisted by the Court in order to make it yield what is thought to be beneficial meaning. The language of the section, in our view, leaves to the Court no alternative but to dismiss the application, if it is not accompanied by the required deposit. So it was held by Guha and Bartley JJ. in the case to which referrence has already been made and with the view expressed in that case, we respectfully agree.

12. It was contended by the learned advocate for the opposite party No. 1 that the Court had always the power to grant an extension of time and had in fact granted it in the present case, The argument employed by him is of the same nature as that which appealed to D.N. Mitter J. when his Lordship was referring to Section 17, Provincial Small Cause Courts Act. The power of the Court to grant an extension' of time in cases where there is nothing to prevent it from doing so, may be conceded; such a case is furnished by Section 17, Provincial Small Cause Courts Act which requires the application and the deposit to be made together within 80 days but does not couple the direction with any penalty clause. In the case of Section 26F (2) however the Legislature most clearly enacts that if the required deposit is not made, as directed, the application shall be dismissed. In other words, the only way in which the Court can deal with the application, when it finds that there was no deposit accompanying it, is to dismiss it at once, except in cases where the circumstances are such that the deposit may be deemed to have been made at the time of making the application. There is, in our opinion, no room in a case coming under Section 26F (2) for any exercise by the Court of its power to grant an extension of time.

13. For the reasons given above, we are of opinion, that the view taken by the learned District Judge is not correct and that the application made by opposite party No. 1 was not maintainable. The Rule is accordingly made absolute. The decision of the learned Judge is set aside and that of the learned Munsif restored. 'We make no order as to costs.

Ellia, J.

14. I agree.


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