1. The question raised in this appeal turns upon the construction of Section 111 of the Bengal Tenancy Act and arises under the following circumstances : The plaintiff-appellant instituted a suit on the 14th of April, 1919, for recovery of rent at an enhanced rate under Section 30 of the Bengal Tenancy Act as well as for additional rent under Section 52 of that Act against the defendant who is a tenant.
2. The defendant put in his written statement on the 2nd of June, 1919. Subsequently on the 4th of July, 1921, he raised an objection that the suit could not be proceeded with, having regard to the provisions of Section 111 of the Bengal Tenancy Act, as an order had been made in June, 1920 under Section 101 directing the preparation of a record-of-rights.
3. The Court of first instance disallowed the objection, tried the suit on the merits and partially decreed the suit in favour of the plaintiff. On appeal the learned District Judge set aside the decree of the Court of first instance and sent back the suit for the trial of the other issues according to law after three months from, the final publication of the record-of rights to be prepared under the notification of 1920.
4. The plaintiff has appealed to this Court and it is contended that he was entitled to proceed with the suit notwithstanding the provisions of Section 111 and that that section did not apply to a suit which had been instituted in a Civil Court prior to the order made under Section 101 of the Act.
5. Now Section 111 lays down that ' when an order has been, made under Section 101, directing the preparation of a record-of-rights, then, subject to the provisions of Section 104-H, a Civil Court shall not...until three months after the final publication of the record-of-rights, entertain any application made under Section 158 or any suit or application for the alteration of the rent....' On the face of it when an order has been made under Section 101, the Civil Court's power to entertain a suit or application for the alteration of rent is suspended. The expression used is 'entertain.' That expression has been considered in connection with Section 91 of the Chota Nagpur Tenancy Act where a similar expression is used, and it has been held that the provision that a Civil Court shall not entertain a suit of a particular description does not mean that a suit, if instituted, shall be dismissed. The proper course is to adjourn the trial of the suit until after the final publication of the record-of-rights see the case of Ram Narayan Singh v. Lachmi Narayan Deo (1912) 17 C.W.N. 408. The same view has been adopted in the case of Mt. Hira Koer v. Latchman Gope (1913) 19 C.W.N. 1141 in connection with the provisions of Section 111 of the Bengal Tenancy Act, That is not, however, disputed by the learned Vakil for the appellant. His contention is that that section cannot have retrospective effect so as to affect suits or applications which had already been instituted or filed before the certification by the Government under Section 101 was made. It is urged that the statute should not be given retrospective operation, unless it is so clearly expressed in the statute itself or the intention is apparent by necessary and clear implication and that to give effect to the provisions of the section as being applicable to suits or applications already pending before the order under Section 101 is made would be to take away vested rights.
6. This argument appears to us to proceed upon the assumption that an application of the section to such suits or applications is to destroy or take away any right. But the Court below has merely stayed the hearing of the suit until after the expiry of three months from the date of the final publication of the record-of-rights. The stay of the suit under the circumstances cannot result in loss to the parties. In any case we think that the object of the legislature is to avoid conflicting decisions of the Civil and Revenue Courts upon the same matters. That is why the trial of suit or application in Civil Court is prohibited by the section as soon as the order for the preparation of the record-of-rights has been made.
7. It is to be observed that the expression is 'shall not entertain' which would include the cases not only not already instituted but cases where suits have already been instituted but not tried. That section means that after an order has been made under Section 101, Civil Courts shall not try any suit, if such suit has already been instituted until three months after the final publication of the record-of-rights That is the order which has been passed by the lower Appellate Court. Under the circumstances we cannot interfere with the order.
8. The appeal is accordingly dismissed.
9. As, however, the objection was not taken by the defendant until long after the certification under Section 101 had been made, we direct that each party do bear his own-costs both in this Court and in the lower Appellate Court. The costs of the Court of first instance will abide the result.