1. This rule was issued under Section 622 of the Civil Procedure Code, upon the defendant, the opposite party before us, to show cause why a judgment passed by the District Judge of Nuddea, holding that the suit of the plaintiff, who is one of several co-sharers in a joint undivided Mehal, for the recovery of his share of the rent, cannot, by reason of Section 188 of the Bengal Tenancy Act, be maintained, should not be set aside.
2. Both the Muns'if and the District Judge have, as we understand, held that, as a matter of fact, the plaintiff has, for some years back, been in the separate receipt and enjoyment of his share of the rent; but notwithstanding that finding the Judge holds, as I have just said, that the suit, which is for recovery of the plaintiff's share of the rent, does not lie by reason of Section 188 of the Tenancy Act.
3. A preliminary objection has been taken by the learned Counsel for the opposite party, upon the ground that, in the circumstances of this case, this Court has no authority, under Section 622 of the Procedure Code, to interfere with the judgment of the District Judge.
4. It appears to me that what the Judge has done in this case comes clearly within the scope of Section 622.
5. That section runs thus: 'The High Court may call for the record of any case in which no appeal lies to the High Court, if the Court by which the case was decided appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity, and may pass such order in the case as the High Court thinks fit.'
6. The District Judge had certainly jurisdiction to decide this case in appeal; but it is quite apparent that, while exercising that jurisdiction, he exercised it illegally, and with material irregularity, if the view we take of the law on the subject be correct; for what he has done is this: he holds that the suit does not lie at all; and be holds this because he considers a certain law applicable to the case, and which law, he thinks, prohibits such an action being entertained. This appears to me to be a clear illegality on the part of the Judge, in the exercise of the jurisdiction, which, under the law, he was authorized to exercise; and, in this view of the matter, this case seems to me clearly distinguishable from the case of Amir Hassan Khan v. Sheo Baksh Singh 11 C. 6 : 11 I.A. 237 which was referred to by the learned Counsel. The main question in that case was, whether the suit was barred by res judicata ; and some other questions as to the right of the plaintiff, in connection with a mortgage transaction, were also raised. The District Judge in appeal held that the questions raised in the case should be decided for the plaintiff, and accordingly a decree was passed in his favour. Thereupon the Judicial Commissioner was moved under Article 622 of the Procedure Code; and he took a view of the matter contrary to that which had been taken by the District Judge, and dismissed the suit. What the Judicial Committee held in that case was that the District Judge had jurisdiction to decide the question before him one way or the other, and if he made a mistake in deciding it that was not a matter which could be rectified by an application under Section 622. But it appears to me that the matter is different, where a Judge, in dealing with a case, erroneously holds that a particular statute, or section of it, is applicable to the case, and that by reason of that statute or section the suit does not at all lie. In that case it would seem that, in the exercise of the jurisdiction vested in him by law, the Judge acts illegally and with material irregularity within the meaning of Section 622. I think, therefore, that in this instance the preliminary objection ought not to prevail, and that we are bound to decide the ease on its merits.
7. As to the merits, it appears to me that we ought to follow the ruling that was laid down in two cases-one, that of Prem Chand Nuskur v. Mohshoda Debi 41 C. 201, and the other, mentioned in the note to that case, viz., Umesh Chunder Roy v. Nasir Mullick 14 C. 203 note.
8. Section 188 of the Bengal Tenancy Act runs thus: 'Where two or more persons are joint landlords, any thing which the landlord is, under this Act, required or authorized to do, must be done either by both or all those persons acting together or by an agent authorized to act on behalf of both or all of them.'
9. The learned Counsel contends, and I think rightly, that the word 'the landlord' must be taken to mean the whole body of landlords. But then the question that arises upon the section is, whether there is anything in the Act that lays down that the whole body of landlords is required or authorized to bring a suit for rent; in other words, is there anything in this Act, to indicate that the whole body of landlords must join in bringing a suit for rent? We think that there is nothing in the Act to that effect.
10. According to the law which was in force before this Act came into operation, and according to the rulings of this Court under that law, if a co-sharer in a joint undivided mehal had been in previous years in the separate receipt and enjoyment of his share of the rent, it was competent to him to bring a suit for rent in respect of his own share. Is there anything in this Act to indicate that it was the intention of the Legislature to alter that law, and to lay it down that the whole body of shareholders must, if any rent be due to any one of them, bring a joint suit for the recovery of the same? It appears to me that there is nothing in the Act to indicate that this was ever the intention of the Legislature.
11. For these reasons we think that the District Judge was in error in his application of Section 188 of the Bengal Tenancy Act to the facts of this case, and therefore this rule must be made absolute with costs.