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Khetra Nath Ghatack Vs. Paru Beuri and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in9Ind.Cas.478
AppellantKhetra Nath Ghatack
RespondentParu Beuri and ors.
Cases ReferredThe Labrador Company v. The Queen
Excerpt:
possessory suit - specific relief act (i of 1877), section 9--jurisdiction of civil court--chota nagpur tenancy act (vi b.c. of 1908), section 139, clause (5)--application to recover possession--suit, if lies in civil court. - .....in the first place, that the act in several of its provisions draws a distinction between suits and applications; nextly, that the corresponding section in the earlier act referred only to suits; and thirdly, that the very section upon which reliance is placed, and which, it is contended, bars this suit, itself draws a distinction between suits and applications. for, whereas clauses (1), 2,(3), (4), (6), (7) and (8) all refer to 'suits,' and clauses (2), (8), refer both to suits and applications, clause (5) refers to applications alone. this is a suit and is not an application; and under the general law contained in the specific relief act it is competent, in my opinion, for a party to take the benefit of its provision and to bring a suit thereunder, unless there is some special.....
Judgment:

Woodroffe, J.

1. This is a suit under Section 9 of the Specific Relief Act. It is objected by the petitioner (the defendant No. 14) that the Civil Court had no jurisdiction to try it; and in support of this argument reference is made to the provisions of Section 139, Clause (5) of the Chota Nagpur Tenancy Act (VI of 1908, B.C.). That clause says: -'All applications to recover the occupancy or possession of any land, from which a tenant has been unlawfully ejected by the landlord or any person claiming under or through the landlord * * * shall be cognizable by the Deputy Commissioner, and shall be instituted and tried or heard under the provisions of this Act, and shall not be cognizable in any other Court, except as otherwise provided by this Act'. It may be a question, in the face of the pleadings, whether this is a suit to recover possession of land from which a tenant has been unlawfully ejected by the landlord. Although the second ground of motion alleges that the lower Court acted unlawfully in entertaining the suit when the plaintiff alleged in his own plaint that there had been dispossession by his landlord, the statement in that ground does not appear to have been correct. For we have had the pleadings translated and read to us and we observe that there is no such statement in the plaint. There is a finding in the judgment of the lower Court that the defendant No. 14 is the landlord and that the other defendants are his ryots. Whether that amounts to a finding that the plaintiff is the tenant of the defendant No. 14 need not be further considered; nor the second ground in which this Rule has been obtained. For, even assuming for the sake of argument, that this is a suit by the plaintiff to recover possession of land from which he has been unlawfully ejected by the landlord, the suit does not appear to me to be barred by the provisions of Section 139 of the Act. It is to be observed, in the first place, that the Act in several of its provisions draws a distinction between suits and applications; nextly, that the corresponding section in the earlier Act referred only to suits; and thirdly, that the very section upon which reliance is placed, and which, it is contended, bars this suit, itself draws a distinction between suits and applications. For, whereas Clauses (1), 2,(3), (4), (6), (7) and (8) all refer to 'suits,' and Clauses (2), (8), refer both to suits and applications, Clause (5) refers to applications alone. This is a suit and is not an application; and under the general law contained in the Specific Relief Act it is competent, in my opinion, for a party to take the benefit of its provision and to bring a suit thereunder, unless there is some special law which deprives him of the benefit of the general provisions of the Specific Relief Act. There is, in my opinion, no such law, because the only alleged bar which has been put forward is the bar in respect of applications and not of suits. It has been contended in support of the Rule that we should read the word application' as being the same as 'suit'. This, I think, it is quite impossible to do.

2. The Rule must, therefore, be discharged with costs, the hearing fee being assessed at two gold mohurs.

Carnduff, J.

3. I am of the same opinion. Section 9 of the Specific Relief Act, 1877, provides that, 'if any person is dispossessed without his consent of immoveable property otherwise than in due course of law, he or any person claiming through him may, by suit instituted within six months from the date of the dispossession, recover possession thereof, notwithstanding any other title that may be set up in such suit.'

4. By Section 68 of the Chota Nagpur Tenancy Act, 1908 (Bengal Tenancy Act VI of 1908), it is enacted that 'no tenant shall be ejected from his tenancy or any portion thereof except in execution of a decree, or in execution of an order of the Deputy Commissioner passed under this Act.'

5. Under Section 71, any tenant ejected otherwise thanks aforesaid may present an application to the Deputy Commissioner praying to be re-placed in possession of his tenancy, and the Deputy Commissioner may, if he thinks fit after summary inquiry, re-place him in possession in the manner prescribed by the rules made under Section 248, Sub-section (2) Clause (V) of this Act.

6. And Section 139, Clause (5) provides that all applications to recover the occupancy or possession of any land from which a tenant has been unlawfully ejected by the landlord or any person claiming under or through the landlord * * * shall be cognizable by the Deputy Commissioner, and shall be instituted and tried or heard under the provisions of this Act, and shall not be cognizable in any other Court, except as otherwise provided in this Act'. This is the clause relied upon by the petitioner; and it is to be observed that, unlike the corresponding Clause (6) of Section 37 of the repealed Chota Nagpur Landlord and Tenant Procedure Act (Bengal Tenancy Act I of 1879) and Clause (6) of Section 23 of the Bengal Rent Act, 1859, (X of 1859), it does not refer to suits at all, much less bar them, if brought in a Civil Court. It expressly bars applications only; and it cannot be contended that the words suits' and application' are interchangeable terms, because a distinction between applications and suits is recognised over and over again in the Act itself. It was, it is true, unnecessary to bar applications under Section 71 of the Act, for applications thereunder can be made to the Court of the Deputy Commissioner alone. And I am unaware of any other enactment under which applications of this kind can be entertained by any other Court. I have little doubt, therefore, but that a mistake in drafting has been made and this is, of course, much to be regretted. But it is well-established that, where the words of an Act, as enacted, are clear, the Legislature only, and not the Courts, can correct any mistake involved in their use; and, if any authority is required for this proposition. I need only refer to the decision of the Privy Council in The Labrador Company v. The Queen (1893) A.C. 104 at p. 123 : 62 L.J.P.C. 33 : 67 L.T. 730.

7. I agree, therefore, in the conclusion that this Rule must be discharged.


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