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Upadhya Thakur and ors. Vs. Persidh Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1896)ILR23Cal723
AppellantUpadhya Thakur and ors.
RespondentPersidh Singh and ors.
Cases ReferredPetu Ghorai v. Ram Khelawan Lal Bhukut I.L.R.
Excerpt:
bengal tenancy act (viii of 1885), section 104, clause 2 and section 108,clause 2--proceedings under--memorandum of appeal to special judge--court fees act (vii of 1870), schedule ii, article 17, (vi), article 1,clause b, part 2, sections 12, 17--civil procedure code (1882),section 622--high court's power of interference with order of special judge--rules under bengal tenancy act, chap. vi, no. 25--power of local government to make the rule. - .....of the rules framed by government under the tenancy act lay down that such a proceeding shall be a suit. rule 30 (b) merely prescribes that the proceeding shall be dealt with as a suit, that is to say, in respect of its procedure, which is all that the provisions of section 189, clause (1), allow government to regulate by means of a rule. rule 30 (b) cannot, therefore, have been intended to lay down that a proceeding under chapter x of the bengal tenancy act shall be dealt with as a suit in respect of the court fees payable on it. if it did, this would be regulating more than the mere procedure to be followed by revenue officers in the discharge of a duty imposed upon them by the act, and would be ultra vires. it would, therefore, appear that the case of petu ghorai v. ram khelawan lal.....
Judgment:

W. Comer Petheram, C.J., Macpherson, Trevelyan, Ghose and Rampini, JJ.

1. The question which forms the subject of this reference is whether when a number of tenants occupying land under the same landlord have been joined as defendants in the same proceeding for the settlement of rents under Section 104, Clause 2 of the Bengal Tenancy Act, and an appeal has been preferred to the Special Judge under Section 108, Clause 2, from the Revenue Officer's decision, making all, or nearly all, the tenants respondents, one Court fee of Rs. 10 is payable, or whether as many Court fees of Rs. 10 each as there are tenant-defendants should be paid. The Special Judge in the Court below held the latter view, and dismissed the appeal, as the proper amount of Court fee payable according to him was not paid.

2. On behalf of the petitioners it has been urged that as by Rule 25, * Chapter VI of the Government Rules under the Tenancy Act, the landlords were entitled to make a joint application, and as they presented in the Court below but one memorandum of appeal, only one fee was payable. On the other hand, it has been contended that the Special Judge's view is right, and the following preliminary objections to the hearing of the rule have also been put forward : (1) that this is a case in which this Court has no power to interfere under Section 622 of the Civil Procedure Code; (2) that the Court of the Special Judge is not a Court subordinate to this Court.; (3) that Rule 25* by which the landlords were authorized to join all the respondents as defendants in one application is ultra vires, and does not properly come within the scope of the powers Rule 31, Calcutta Gazette, 23rd December 1885. Now Rule 25, Calcutta Gazette, 7th November, 1894 of Chapter on the Local Government by Section 189 of the Tenancy Act; and the Boat under the provisions of Section 12 of the Court Fees Act, the decision 11th the District Judge is final.

3. We will deal firstly with these preliminary objections. As regards the first of them, it is sufficient to say that the Judge in this case appears to have refused to exercise a jurisdiction vested in him by law, viz., Section 108, Clause 2 of the Tenancy Act; and so this Court has power to interfere under Section 622 of the Civil Procedure Code, unless the Court of the Special Judge is not a Court subordinate to this Court.

4. The learned pleader for the respondents bases his argument that the Court of the Special Judge is not subordinate to this Court on the terms of Section 108, Clause 3, of the Bengal Tenancy Act, which provides for appeals to the High Court from the decisions of a Special Judge in certain cases only, 'as if he were a Court subordinate to the High Court within the meaning of the first section of Chapter 42 of the Code of Civil Procedure, which implies, it is said, that ordinarily he is not subordinate to this Court. But Section 15 of the Court's Charter gives this Court powers of superintendence over all Courts which may be subject to its appellate jurisdiction, and the Court of the Special Judge is a Court subject to the appellate jurisdiction of this Court, though, no doubt, when the only question involved is as to a rent settled under Chapter X of the Act no second appeal lies to this Court. We, therefore, consider that the Court of the Special Judge is subordinate to this Court. The case of Shewbarat Koer v. Nirpat Roy I.L.R. 16 Cal. 596 may at first sight appear to be in conflict with this view, but we would only say that, if it be so, we are unable to agree with the decision in that case on this point.

5. The third objection urged by the learned pleader for the respondents is that Rule 25, [Rule 81, Calcutta Gazette, 23rd December 1885. Now Rule 25, Calcutta Gazette, 7th November, 1894] Chapter VI of the Government Rules under the Tenancy Act, under which the plaintiffs-appellants made a joint application to the Revenue Officer for the settlement of the respondents' rents, is ultra vires, and beyond the powers given to the Local Government by Section 189 of the Tenancy Act. But Clause (1) of Section 189 gives the Local Government power to make rules 'consistent with this Act' (i.e., the Tenancy Act) 'to regulate the procedure to be followed by Revenue Officers in the discharge of any duty imposed upon them by or under this Act.' Now, the rule in question, No. 25 [Rule 81, Calcutta Gazette, 23rd December 1885. Now Rule 25, Calcutta Gazette, 7th November, 1894] of Chapter VI of the Government Rules, allows any number of tenants occupying land under the same landlord to be joined as defendants in the same proceeding for the settlement of rents, and this is what has been done in this case. The Revenue Officer in settling the rents was obviously discharging a duty imposed on him by Section 104 (2) of the Act. But it is said this rule practically authorises the joinder of several causes of action in one proceeding, which is contrary to Section 31 of the Civil Procedure Code. This may be so, but this would seem to be yet within the powers conferred on the Local Government by Section 189, Clause 1; for Rule 25* is undoubtedly a rule regulating the procedure of the Revenue Officer in the discharge of a duty imposed on him by the Tenancy Act, and it is in no way inconsistent with anything in the Tenancy Act, which is all that Section 189 requires the rules to be.

6. The objection that under the provisions of Section 12 of the Court Fees Act the decision of the District Judge in this case is final is also not well founded. According to the terms of this section, it is only the decision of a Court on a question relating to the valuation of a suit, that is final, but the decision of the Special Judge in this case does not dispose of any question relating to valuation,-far less, for reasons which will presently be given, of any question relating to the valuation of a suit.

7. As to the merits, we think that the proceedings in this case cannot properly be regarded as a suit The proceedings are, under Section 104 (2) and the Government Rules, initiated, not by a plaint, but by an application, and this application is not subject to an ad valorem Court fee duty, as suits for money are subject under the provisions of Section 7 (1) of the Court Fees Act, but according to a notification of the Government of India, No. 5086 S.E., published at page 157, Part I-A of the Calcutta Gazette of the 17th October 1894, to a Court fee of 8 annas. If then, the case is not a suit at its initiation, and need not be commenced by a plaint, why should it be a suit, and why should a memorandum of appeal be required to be presented in it at a later stage? The provisions of Section 107 do not prescribe that the decision of the Revenue Officer in every proceeding under Chapter X shall be a decree, but that it shall have 'the force of a decree,' which it may have without the proceeding necessarily becoming a suit. None of the rules framed by Government under the Tenancy Act lay down that such a proceeding shall be a suit. Rule 30 (b) merely prescribes that the proceeding shall be dealt with as a suit, that is to say, in respect of its procedure, which is all that the provisions of Section 189, Clause (1), allow Government to regulate by means of a rule. Rule 30 (b) cannot, therefore, have been intended to lay down that a proceeding under Chapter X of the Bengal Tenancy Act shall be dealt with as a suit in respect of the Court fees payable on it. If it did, this would be regulating more than the mere procedure to be followed by Revenue Officers in the discharge of a duty imposed upon them by the Act, and would be ultra vires. It would, therefore, appear that the case of Petu Ghorai v. Ram Khelawan Lal Bhukut I.L.R. 18 Cal. 667, in which it has been held that a proceeding under Chapter X is a suit, has been wrongly decided, and it follows, as Article 17, clause vi, of Schedule II of the Court Fees Act applies only to plaints or memoranda of appeal in suits, that that Article is altogether inapplicable. For the same reason Section 17 of the Act is also inapplicable; so that neither one fee of Rs. 10, nor as many fees of Rs. 10 as there are tenant-defendants in the proceeding, should be paid on the applicants' memorandum of appeal to the Special Judge. We can find no Article of the Court Fees Act expressly applicable to the applicants' memorandum of appeal to the Special Judge. But, if the proceeding be not a suit, then the memorandum of appeal is nothing more or less than an application, and, consequently, subject to one fee of eight annas only under Article (1), Clause (b), (2), Schedule II, of the Court Fees Act, and we find that this was the Court fee properly payable by the petitioners on their memorandum of appeal to the Special Judge.

8. This rule will, therefore, be made absolute, and as more than the necessary Court fee duty has been paid by the applicants, the Special Judge will now be directed to proceed with the hearing of their appeal.


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