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Midnapore Zemindary Co. Ltd. Vs. Naba Kumar Singh Dudhoria and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Limitation
CourtKolkata High Court
Decided On
Case NumberLetters Patent Appeal No. 2 of 1948
Judge
Reported inAIR1950Cal298
ActsLimitation Act, 1908 - Section 9; ;Bengal Tenancy Act, 1885 - Section 185 - Schedule - Article 2; ;Tenancy Law
AppellantMidnapore Zemindary Co. Ltd.
RespondentNaba Kumar Singh Dudhoria and ors.
Appellant AdvocateJnanendra Nath Mukherji, Adv.
Respondent AdvocateApurbadhan Mukherji and ;Amiya Kumar Mukherjee, Advs.
DispositionAppeal dismissed
Cases ReferredNagendra Nath v. Suresh Chandra
Excerpt:
- .....no. 523 under the plaintiffs. in the year 1914 the lands which are the subject-matter of this suit for rent accreted to the parent touzi no. 523 and were formed into a temporary settled estate bearing touzi no. 3653. in the record of rights finally published under part ii chap. x, bengal tenancy act a sum of rs. 1028-2-0 was settled as the rent payable in respect of the accreted lands. two suits for rent were instituted by the plaintiffs for recovery of rent for two successive periods, namely 1328 to 1331 b. s. and 1332 to 1335 b. s. these suits for rent were ultimately dismissed by this court in second appeal on the ground that no additional rent was payable in respect of the lands in suit. the decision of this court was pronounced on 29th july 1988 and is reported in midnapore.....
Judgment:

G.N. Das., J.

1. This appeal is at the instance of the defendant in a suit for recovery of arrears of rent limited in the course of the trial to a claim for the year 1344 B. S. The facts are not in controversy and may be briefly stated as follows: The defendant held a putni taluk in respect of lands appertaining to touzi No. 523 under the plaintiffs. In the year 1914 the lands which are the subject-matter of this suit for rent accreted to the parent touzi No. 523 and were formed into a temporary settled estate bearing touzi No. 3653. In the record of rights finally published under part II chap. X, Bengal Tenancy Act a sum of Rs. 1028-2-0 was settled as the rent payable in respect of the accreted lands. Two suits for rent were instituted by the plaintiffs for recovery of rent for two successive periods, namely 1328 to 1331 B. S. and 1332 to 1335 B. S. These suits for rent were ultimately dismissed by this Court in second appeal on the ground that no additional rent was payable in respect of the lands in suit. The decision of this Court was pronounced on 29th July 1988 and is reported in Midnapore Zemindari Co. v. Chandra Singha : AIR1939Cal1 . Against this decision the plaintiffs took an appeal to the Privy Council. The appeal succeeded. The decision of the Judicial Committee was pronounced on 18th December 1941 and is reported in Chandra Singh v. Midnapore Zemindary Co. Ltd. 69 I. A. 61: (A. I. R. (29) 1912 P. C. 8). The effect of the decision of the Privy Council was that the defendant was held to be liable to pay rent to the plaintiffs at the rate of Rs. 1028-2-0 per annum. Consequent on the decision of the Privy Council, on 22nd July 1942 corresponding to 5th Sraban 1349 B. S. the plaintiffs instituted the present suit for recovery of rent.

2. The defence to the suit was one of limitation. This defence succeeded in the Courts below. On an appeal to this Court our learned brother Biswas J. was of the opinion that the claim was not barred by limitation. The appeal was accordingly allowed. In the present appeal by the defendant the only question which calls for our determination is a question of limitation.

3. Under Section 53, Bengal Tenancy Act, (hereinafter called the Act) rent is payable subject to an agreement or established usage to the contrary, in four equal instalments falling due on the last day of each quarter of the agricultural year. Article 2 (b) part I, Schedule III prescribes the period of limitation for a suit for recovery of arrears of rent to be three years from ' the last day of the agricultural year in which the arrears fall due'. In other words, the claim for the period in suit, that is 1344 B. S. became barred on 1st Baisakh 1348 B. S. but as 1st Baisakh 1348 B. S. was a holiday, a suit for recovery of the arrears of rent for 1344 B. S. had to be instituted on 2nd Baisakh 1348 B. S. The claim was, therefore, prima facie barred under Article 2 (b) Part I, Schedule III of the Act. The suit was, therefore, prima facie liable to be dismissed under Section 184 of the Act.

4. The defendant appellant contends that this is the legal position and bases his argument on the plain terms of Article 2 (b) part I, Schedule III. His contention is that the time having once begun to run it was not suspended by reason of the pendency of the appeal before the Privy Council.

5. For the plaintiffs respondents Mr. Apurba Dhan Mukherji urges that the plaintiffs were entitled to a suspension of the period of limitation from 29th July 1923, the date of the decision of this Court, negativing the plaintiffs' right to recover the rent claimed, to 18th November 1941, the date of the Order in Council when their right to recover rent was finally established.

6. It is undisputed that if this period is added to the period of limitation prescribed by Article 2 (b) part I, Schedule III the claim is within time. The question is whether the plaintiffs are so entitled.

7. The principle that once time begins to run no subsequent disability or inability to sue can stop the running of time was embodied in Section 11 of Act XIV [14] of 1859 and was re-enacted with some amplification in the later Limitation Act, namely Act XI [11] of 1871 and Act xv [15] of 1877 and is now contained in Section 9 of Act IX [9] of 1908.

8. The scope of the section has been the subject of discussion in multitudinous cases. The cases bearing on the point were reviewed by Mukerji J. in the case of Sm. Sarat Kamini Dasi v. Nagendra Nath Pal 29 C. W. N. 973 : (A. I. R. (13) 1926 Cal. 65) and the law was thus summarised at p. 988 :

'I am of opinion that except perhaps in cases where injustice has been occasioned by a Court by its own acts or oversights there is no scope for the application of any principles of equity in the administering of the statutes of limitation, that in point of fact the Judicial Committee has not, however, much the language used by their Lordships in some of the decisions may suggest the same, laid down any such principle as being of universal applicability and that all the decisions of the Judicial Committee as well as most of the cases decided in this country are supportable on grounds which are in no sense founded on any general equitable principle extraneous to or unauthorised by the statute. In cases in which the question arises as to the starting point of time for the purposes of limitation, these decisions are mostly reconcilable with a proper appreciation of what the cause of action means when the starting point is the cause of action or with a proper Interpretation of the words used in the third column of the articles in other cases; and in cases where the question of suspension arises, if time has once begun to run it never again ceases to run, but there may be satisfaction of a claim or the cancellation of a cause of action operating to suspend the rights of the plaintiff who may, on the removal of the satisfaction or cancellation avail of a fresh cause of action which arises by reason thereof.'

If the present cage fell to be decided under the ordinary law of limitation as enacted in the Limitation Act (Act IX [9] of 1908) the period of limitation can be extended according to the above observations in three classes of cases, viz., (1) where injustice has been caused by an act of Court, (2) where the cause of action was satisfied and (3) where the cause of action was cancelled.

9. The facts of the present case do not attract the second exception. In a broader sense of the word cancelled the third exception may apply and the time during which the right of the plaintiff to successfully recover the rent from the defendant was negatived by the decision of this Court may be excluded. The first exception is supported by the weighty observations of Lord Eldon in Pulteney v. Warren, (1801) 6 ves. 73 at p. 92 : (81 E. R. 944) :

'If there is a principle upon which Courts of Justice ought to act without scruple it is this: to relieve parties against injustice occasioned by his own acts or over sights at the instance of the part; against whom the relief is sought.'

10. The above observations were relied upon by this Court in the case of Lakhan Chandra, v. Madhu Sudan, 35 Cal. 209 : (7 C. L. J. 59) and the time during which, as a result of an erroneous decision of a Court the plaintiffs' right of suit was in jeopardy, was excluded. The view taken by this Court was affirmed on appeal by the Privy Council in the case of Nritya Moni Dassi v. Lakkan Chandra 43 Cal. 660: (A. I. R. (3) 1916 P. C.96).

11. The principle above stated, supports the contention of the plaintiffs, in the facts of the present case where also, the erroneous decision of this Court which negatived the plaintiffs' right to receive rent from the defendant was responsible for the delay in the filing of the suit.

12. The present cage is, however, one which does not fall to be decided under the general law but under the provisions of the Bengal Tenancy Act. Section 185 of the Act expressly makes Section 9, Limitation Act, 1908, inapplicable to suits specified in Sob. III annexed to the Act.

13. The reason for the exclusion is stated in Rampini's Bengal Tenancy Act, 4th Edn., under the notes to Section 185. The plain implication of the exclusion is that in proper cases the time for filing a suit may remain in abeyance. Thus in the case of Mt. Ranee Surnomoyee v. Shashi Mokhee, 12 M. I. A. 242 at p. 253 :(2 Beng. L. R. 10 P. C.), it was observed as follows:

'They must also respectfully dissent from another statement of the learned Judges of the High Court, to the effect that the appellant might have sued for these arrears pending the proceedings to set aside the sale of the putnee. It is clear, that until the sale had been finally set aside, she was in the position of a person whose claims had been satisfied, and that her suit might have been successfully met by a plea to that effect.'

14. In the later case of Hem Chandra v. Kali Prosanna, 30 I. A. 177 at p. 181: (30 Cal. 1033 P. C.), their Lordships of the Judicial Committee held that the proceedings in an earlier suit for enhancement of rent 'stayed the operation of the law of limitation.'

15. In my opinion the above cases proceed on the principle that limitation may be extended when the claim to recover the rent is either satisfied or extinguished or rendered legally unenforceable in consequence of a transaction to which the defendant is a party and the validity whereof is in controversy and awaits a final adjudication.

16. The above view is also supported by the following observations of their Lordships of the Privy Council in the case of Bassu Kuar v. Dhun Singh, 15 I. A. 211 (11 ALL. 47 P. C.).

'And it would be an inconvenient state of the law it were found necessary to institute a vain litigation under peril of losing the property if he does not.'

17. This principle was restated in a slightly different form in the case of Nagendra Nath v. Suresh Chandra :

'It is at least an intelligible rule that so long as there is any question sub judice between any of the parties, those affected shall not pursue the so often thorny path of execution which, it the final result is against them, may lead to no advantage.'

18. In my opinion it will be a lamentable state of the law if the defendant who had by an appeal to this Court successfully upheld his plea of non-liability to pay rent to the plaintiff and thereby compelled the plaintiff to resort to the highest Court for redress, is allowed to turn round and plead that the lapse of time occasioned by the said appeal, had relieved the defendant from his liability to pay the rent by the bar of limitation.

19. In my opinion neither expediency nor justice nor the spirit of the law as contained in Article 2 (b) Part I Schedule III read with Section 185, Bengal Tenancy Act compels the Court to give effect to such a plea of the defendant.

20. The contention raised on behalf of the defendant appellant must therefore be overruled.

21. The result therefore is that the decision of our learned brother Biswas J. must be affirmed and this appeal dismissed with costs.

Das Gupta, J.

I agree.


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