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Maharaj Bahadur Singh Vs. Binode Behary Choudhury and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1936Cal263
AppellantMaharaj Bahadur Singh
RespondentBinode Behary Choudhury and ors.
Cases ReferredKhemadananda Kumar v. Rashamaya Halder
Excerpt:
- .....of section 111, ben. ten act. in my judgment, section 111 does not apply to this case. the opposite party according to the case of the petitioner, took a transfer on the footing that the holding was not an occupancy holding, but a holding at a fixed rent. on that the petitioner before me filed an application under section 26-j, and in answer to that application the opposite party has stated that the holding in question is a holding held at a fixed rate of rent. he also made an application for stay of the hearing of this application on the ground that an order has been made under section 101, ben. ten. act, directing the preparation of the record of rights. in my judgment simply because a defendant raises a question of status it cannot be urged that a pending proceeding should be.....
Judgment:

R.C. Mitter, J.

1. This rule is directed against an order of the learned Munsiff, Additional Court, Balurghat, dated 27th May 1935, by which he has stayed an application made by the petitioner before me, under Section 26-J, under the provisions of Section 111, Ben. Ten Act. In my judgment, Section 111 does not apply to this case. The opposite party according to the case of the petitioner, took a transfer on the footing that the holding was not an occupancy holding, but a holding at a fixed rent. On that the petitioner before me filed an application under Section 26-J, and in answer to that application the opposite party has stated that the holding in question is a holding held at a fixed rate of rent. He also made an application for stay of the hearing of this application on the ground that an order has been made under Section 101, Ben. Ten. Act, directing the preparation of the record of rights. In my judgment simply because a defendant raises a question of status it cannot be urged that a pending proceeding should be stayed under the provisions of Section 111. Khemadananda Kumar v. Rashamaya Halder 1928 Cal 388, is an authority for this proposition. A suit or proceeding can be stayed under Section 111 only if the suit or the application is filed for the determination of the status of any tenant. The prayer in an application under Section 26-J is not for the determination of the status of a tenant but for the recovery of a sum of money although in deciding the said claim of the landlord, the question of status may have to be gone into. It is a money claim which the landlord wants to enforce, and the fact that the question of status has to be gone into because the defendant has raised the question of status, will not authorise the Court to stay the application under Section 111. I accordingly make this Rule absolute and direct the learned Munsiff to proceed on with the application under Section 26-J. As there is no appearance on behalf of the opposite party, there will be no order for costs.


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