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Safer Ali Mandal and ors. Vs. Golam Mandal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in31Ind.Cas.177
AppellantSafer Ali Mandal and ors.
RespondentGolam Mandal and anr.
Cases ReferredSahodora Mudali v. Sarbosobha Dasi
Excerpt:
provincial small cause courts, act (ix of 1887), schedule ii, clause (8) - special authorization personal--rent for homestead land--construction of statute. - .....ram dosad 35 c.l.j. 407. but as he was not expressly invested with authority to try suits for the recovery of homestead land, he has exercised a jurisdiction not vested in him by law; sahodora mudali v. sarbosobha dasi 27 ind. cas. 258 : 20 c.l.j. 494 : 42 c. 638 : 19 c.w.n. 1030. it is desirable that matters should be set right by the local government on an early date by the issue of notifications from time to time expressly investing particular officers (whether they be judges of small cause courts under sections 6 and 8 of act ix of 1837 or section 25 of act xii of 1887) with authority to exercise jurisdiction in suits for the recovery of rent of specified classes of land and of specified amounts. but in so far as the present suit is concerned, there is no escape from the position.....
Judgment:

1. We are invited in this Rule to review our judgment in the case of Golam Mandal v. Safer Ali Mandal. That Rule was obtained by the defendants, in a suit for recovery of rent of homestead land, to set aside the decree of the Small Cause Court Judge on the ground that he had no jurisdiction to try the suit. The Rule was heard ex parte on the 4th June 1914 and was made absolute. On the 3rd September 1914 the plaintiff and two of the defendants applied to us to review our decision on two grounds, namely, first, that the notice of the Rule had not been served upon the petitioners, and, secondly, that materials essential for a correct decision of the question in controversy were not placed before the Court. We accordingly granted the present Rule. The allegation that the notice of the Rule had not been duly served, has not been contradicted by the opposite party. We have consequently allowed the matter to be re-argued, and this course was clearly desirable in view of the fact that the question raised is one of jurisdiction, which may affect the decision not merely of the case before us, but also of other similar cases tried by the Small Cause Court Judge.

2. The plaintiff sued the defendant for recovery of arrears of rent of homestead land. An objection taken by the defendants that the suit was excluded from the cognizance of the Small Cause Court by Article 8 of the second Schedule to the Small Cause Courts Act was overruled by the Judge in the Court below on the ground that a similar suit in respect of this very land had been tried as a Small Cause Court suit in 1906. We set aside the decree made by the Small Cause Court Judge in favour of the plaintiff, on the ground that there was nothing to show that the Judge had been expressly invested by the Local Government with authority to exercise jurisdiction with respect to suits of this class. We are now invited to review our decision on the ground that the Judge had, as a matter of fact, been duly authorised by the Local Government. In support of this contention reliance has been placed upon the following notification of the Government of Bengal dated the 21st June 1904:

'It is hereby notified that the Munsifs of Alipore and Sealdah in the District of 24-Parganas are vested under Clause (8) of the second Schedule of the Provincial Small Cause Courts Act (IX of 1887) with power to try, under the Small Cause Court procedure, suits for the recovery of rent of homestead lands within their respective jurisdictions, when the value does not exceed Kupees fifty.' It has been argued on behalf of the opposite party that this notification is of no avail, and that what is requisite is that the particular Judge who tries the case should have been expressly invested by the Local Government with authority to exercise jurisdiction with respect thereto; in other words, that the special authorization contemplated by Clause (8) is entirely personal to the presiding Judge. In our opinion, this contention is well founded.

3. Clause (8) of the second Schedule to the Provincial Small Cause Courts Act excepts a suit for the recovery of rent other than house-rent from the cognizance of a Court of Small Causes, unless the Judge of the Court of Small Causes has been expressly invested by the Local Government with authority to exercise jurisdiction with respect thereto. Clause (8) of the Schedule must be read along with Sub-section 1 of Section 15, and when they are so read, it becomes obvious that a distinction is drawn by the Legislature between a Court of Small Causes' and 'the Judge of the Court of Small Causes.' Clause (8) requires that the Judge should have been expressly invested with authority to exercise jurisdiction, and not that jurisdiction should have been conferred upon the Court. The distinction between the Court as an institution in which the Judge exercises judicial functions and the particular individual who presides in that Court is fundamental and well recognised. (See for instance Section 6 of the Small Cause Courts Act). As an illustration reference may be made to the decision of the Full Bench in Bahadur v. Eradatullah 6 Ind. Cas. 801 : 37 C. 642 : 12 C.L.J. 45 : 14 C.W.N. 799 : 11 Cr.L.J. 407, where it was pointed out that the word Court' implies a sense of continuity notwithstanding a change of officers. On the other hand, when we turn to Section 153 of the Bengal. Tenancy Act, we find an instance where a Judicial Officer may be specially empowered to exercise a particular jurisdiction. It is clear, upon a plain reading of Clause (8) and assigning to the term Judge' its natural meaning, that the Legislature intended that suits for the recovery of rent should be tried under the Small Cause Court procedure only by such Judges as had been expressly authorised to exercise jurisdiction in that behalf; it was not intended that jurisdiction should be conferred by a general order on a particular Small Cause Court, irrespective of the qualifications of the individual officer who may preside therein. It is not disputed that Babu Tincowri Chaudhuri, who tried this suit, had never been expressly invested by the Local Government with authority to exercise jurisdiction with respect to suits for the recovery of rent. The notification of the 21st June 1904 is, as we have said, of no avail; what was needed was a notification authorising the particular officer to try suits for the recovery of homestead lands after jurisdiction had been conferred upon him under Section 25 of Act X.LL of 1887. The order under Section 25 of Act XII of 1887 constituted this officer a Judge of a Court of Small Causes within the meaning of Clause (8) of Act IX of 1887, as explained in the case of Akshay Kumar Shaha v. Hira Ram Dosad 35 C.L.J. 407. But as he was not expressly invested with authority to try suits for the recovery of homestead land, he has exercised a jurisdiction not vested in him by law; Sahodora Mudali v. Sarbosobha Dasi 27 Ind. Cas. 258 : 20 C.L.J. 494 : 42 C. 638 : 19 C.W.N. 1030. It is desirable that matters should be set right by the Local Government on an early date by the issue of notifications from time to time expressly investing particular officers (whether they be Judges of Small Cause Courts under Sections 6 and 8 of Act IX of 1837 or Section 25 of Act XII of 1887) with authority to exercise jurisdiction in suits for the recovery of rent of specified classes of land and of specified amounts. But in so far as the present suit is concerned, there is no escape from the position that the decree was made without jurisdiction. We accordingly affirm our previous decision and discharge this Rule; but, in view of the special circumstances of the case, we make no order as to costs.

4. We direct that a copy of our judgment be forwarded to the Local Government for information and for such action as may be deemed necessary.


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