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Port Canning and Land Improvement Co. Ltd. Vs. Jogendra Mandal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1928Cal533
AppellantPort Canning and Land Improvement Co. Ltd.
RespondentJogendra Mandal
Excerpt:
- .....ejectment can only be passed. section 46, clause (6), only contemplates the determination, of what rent is fair and equitable for the holding; clause 8 contemplates that if the raiyat does not agree to pay the rent so determined then a decree for ejectment could be passed and clause (10) provides that the decree for ejectment shall take effect from the end of the agricultural year i which it was passed.5. it seems to me, whether the bengali' tenancy act contemplated one decree or two decrees, under section 46. ben. ten. act, in the present cases, the plaintiff-company proceeded on the footing that there are two decrees in each suit and the objection does not come from it with good grace that there should be only one decree-in each case. as the tenants-respondents had agreed to pay the.....
Judgment:

Mitter, J.

1. These five appeals arise ?out of five suits brought by the plaintiff-company in the Court of the Munsif of Basirhat, for enhancement of rent of the tenants-respondents, who are non-occupancy raiyats, after service of notice under Section 46, Ben. Ten. Act. The plaintiff company tendered to the tenants-respondents in each of five suits an agreement to pay enhanced rents and the tenants-respondents within three months before the institution of each suit, refused to execute the agreement. Thereupon the plaintiff-company brought five suits for determination of fair and equitable rent and for ejectment in case the tenants-respondents failed to pay the fair and equitable rent determined by the Court under Section 46, Clause (6), Ben. Teh. Act. Decrees were passed in each of the five suits to the effect that if the tenants-respondents agreed to pay the rent determined under Section 46, Clause (6), they shall be entitled to remain in possession of the holding at that rent for a term of five years from the date of the agreements respectively, but, on the expiration of the terms, shall be liable to ejectment, unless they have acquired a right of occupancy and that if the tenants did not agree to pay the rent within the time fixed by the Court they would be ejected at the end of the agricultural year in which the decree was passed. The tenants did not appear to signify their election to pay the fair and equitable rent within the time fixed by the Court in each of the five suits and notwithstanding this the Court refused to pass decrees for ejectment. The Court of first instance held that the tenants-respondents may signify their election to pay the fair and equitable rent before the decree for ejectment is actually passed and the Court had power to enlarge the time for signifying election. In this view the trial Court refused to pass decrees for ejectment in the five suits.

2. Appeals were taken to the. Subordinate Judge of 24 Parganas against the decrees of the Munsif refusing ejectment and the Subordinate Judge affirmed the decrees of the Munsif.

3. Five second appeals have been preferred to this Court by the plaintiff-company and it is argued by Mr. Ram Chandra Majumdar, who has appeared on behalf of the plaintiff-company, that the decrees of the Courts below refusing ejectment are wrong, as the Court had no power to extend the time fixed in #he deoree4 for the tenants to signify their election. The argument is put in this way : It is said that the Courts below are in error in holding that two decrees are contemplated by Section 46, Ben. Ten. Act. lb is argued that the decrees having fixed a time for signifying election and having prescribed ejectment as the penalty for non-compliance within the stipulated time with the order of the Court, the Courts below were bound to pass decrees for ejectment. It is said that there is no provision in the Bengal Tenancy Act, for enlarging the time fixed by the decree for signifying willingness to pay the fair and equitable rent determined by the Court and that Section 148, Civil P.C., does not apply where time is allowed for doing an act fixed by a decree of the Court. In support of this contention our attention has been drawn to notes under Section 148, Civil P.C. (Mulla's edition), where authorities in support of this contention are cited The point made in the argument is that the Court has no power to extend the time fixed by its decree. Mr. Majumdar, however, has very fairly drawn our attention to the fact that his client, the plaintiff company, treated the decrees passed in these five suits as conditional decrees for ejectment and applied for final decrees, as the time for signifying election granted by the Court had expired.

4. It is said that, though the plaintiff company might have misread the law and had made an application for a final decree, the law contemplates only one decree and when in Section 46. Clause (8), it is said that

if the raiyat does not agree to pay the rent so determined the Court shall pass a decree for ejectment,

the willingness to agree or otherwise must be signified before the decree is passed. It seems to me that the Act contemplates that before passing a decree for ejectment the Court shall determine what is a fair and equitable reat : see Section 46, Clause (6), Ben. Ten. Act. Under Section 46, Clause (8), if the raiyat does not agree to pay the rent so determined, the Court shall pass a decree for ejectment. If a certain time is allowed in this case for signifying the election to execute the agreement for enhanced rent, it seems only logical that after the expiration of the period a decree for ejectment should be passed. In other words, the scheme of the Act seems to be this : It provides that before ordering ejectment the Court shall determine what is a fair and equitable rent. Keeping this intention of the legislature in view, I think, the proper procedure ought to be this : Under Section 46, Clause (6), the Court should determine the fair and equitable rent and fix a time within which the tenants are to appear and signify their election to pay the rent so determined. This may be a fortnight or a month from the date of the determination of the fair and equitable rent. Whether it is necessary or advisable to serve notice on the tenants of the rent fixed and the date by which their election has to be signified is a matter of discretion in the circumstances of each case. The Court may record an order in the ordersheet determining what the fair and equitable rent is. It is not necessary that a preliminary decree be passed determining what the rent is. The Bengal Tenancy Act does not either prohibit or enjoin the passing of a preliminary and a final decree. If the tenants do not appear within the time fixed by the Court and recorded in the order determining fair and equitable rent or appear and signify their unwillingness to accept the fair and equitable rent determined by the Court, then the Court should pass a decree in ejectment. Under Section 44, Clause (d), a non-occupancy raiyat sVall be liable to ejectment on the ground that he has refused to agree to pay a fair and equitable rent determined under Section 46, so that he? could not be ejected until an opportunity is given to him to agree to pay the fair and equitable rent within a certain period, after which an effective decree for ejectment can only be passed. Section 46, Clause (6), only contemplates the determination, of what rent is fair and equitable for the holding; Clause 8 contemplates that if the raiyat does not agree to pay the rent so determined then a decree for ejectment could be passed and Clause (10) provides that the decree for ejectment shall take effect from the end of the agricultural year i which it was passed.

5. It seems to me, whether the Bengali' Tenancy Act contemplated one decree or two decrees, under Section 46. Ben. Ten. Act, in the present cases, the plaintiff-company proceeded on the footing that there are two decrees in each suit and the objection does not come from it with good grace that there should be only one decree-in each case. As the tenants-respondents had agreed to pay the fair and equitable-rent fixed by the Court before ejectment, they ought not in the circumstances of the present cases to be ejected. The result is that, in my opinion, the appeals-should fail and should be dismissed, but without costs, as the respondents have-not appeared.

6. It is said by Mr. Majumdar that these, are test cases and we should express our final opinion on the question. While dismissing these appeals on their special facts, I have indicated what the proper procedure is which should be followed in suits for enhancement of rent and ejectment under Section 46, Ben. Ten. Act.

Rankin, C.J.

7. I agree.


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