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Degendra Chundra Sen and anr. Vs. Nritya Gopal Biswas and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in43Ind.Cas.184
AppellantDegendra Chundra Sen and anr.
RespondentNritya Gopal Biswas and ors.
Cases ReferredDinesh Chunder Roy v. Golam Mustapha
Excerpt:
bengal court of wards act (ix of 1879), section 55 - suit by manager without sanction, maintainability of. - .....authority to institute a suit should be filed as soon as it has been obtained, and when the suit is filed, in anticipation, the circumstances should be stated and the court asked to stay proceedings till it is received. the suit should be filed in anticipation only when such filing is necessary to save limitation.' in the present case, although the suit' was instituted on the 18th april 1911, the court was not asked to stay proceedings, and it was after the amin had submitted his report, which was partly favourable to the plaintiffs, that the sanction was obtained on the 27th november 1912 and it was not filed in court until the 5th september 1913, this was contrary to the rules framed by the board of revenue. but apart from that, section 55 clearly say as that though the plaint.....
Judgment:

1. This appeal arises out of a suit by the plaintiffs, who are Wards under the Court of Wards.

2. The suit which was instituted by their next friend Mr. Monier, Manager of the Court of Wards, was one for recovery of possession of certain lands on establishment of the plaintiffs' title thereto. It appears that there was a partition of the estate within which these lands were situate, between the plaintiffs and the defendant No. 1. The partition took place in Chait 1305 corresponding to April 1899. The plaintiffs' case was that these lands were part of the estate which fell to their share, that they went under water and then rose again in Rartik 1366 corresponding to October 1899. The suit was instituted on the 18th April 1911 (the Court having been closed from 13th to 17th April 1911) and within 12 years from the 1st Baisnkh 1306, corresponding to 13th April 1899. It wan, however, instituted without the authority of the Court of Wards.

3. Section 55 of the. Court of Wards Act provides that 'no suit shall be brought on behalf of any Ward by a Manager unless the same is authorized by some order of the Court, provided that a Manager may authorise a plaint to be filed in order to prevent a suit from being barred by the law of limitation; but such suit shall not be afterwards proceeded with except under the sanction of the Court.'

4. It appears that after the suit had been instituted, the plaintiffs applied for summons on their witnesses and a Commissioner was appointed for local investigation. He submitted his report on the 9th April 1912. The Manager did not obtain sanction of the Commissioner until the 27th November 1912 and the sanction was actually filed in Court on the 5th September 1913.

5. The Court of First Instance dismissed the suit entirely. On appeal, the learned District Judge partly decreed the suit and the defendant No. 3 who is a tenant under the defendant No. 1 and the defendant No. 14 who is a tenant under the defendant No. 3 and his co-sharers, have appealed to this Court.

6. Two contentions have been raised in this appeal. The first is that the suit having been instituted without the authority of the Court of Wards, should be dismissed and secondly, that, at any rate, the suit having been proceeded with without the sanction of the Court, the proceedings should be set aside and the case tried de novo.

7. So far as the first question is concerned, we think that the suit should not be dismissed. No doubt, Section 55 says that no snit shall be brought on behalf of any Ward by a Manager unless the same is authoried by some order of the Court, but, at the same time, it provides that a Manager may authorise a plaint to be tiled in order to prevent a suit from being barred by the law of limitation. The law, therefore, gives the Manager power to file a suit in anticipation of the sanction when the suit would otherwise be barred by limitation. Such a course should be adopted where there is very little time left to get the authority of the Court of Wards. In the present case there was, no doubt, some time between the date of the institution of the suit and the date on which 12 years would expire from the time when the cause of action is said to have arisen. The land, however, was chur land and it is always difficult to fix the precise time when any chur appeared above water and formed into land. As a matter of fact, a portion of the land was held by the lower Appellate Court to have been barred by limitation Under the circumstances we think that the Manager was justified in instituting the suit on the 18th April 1911, which was within 12 years of the date of the partition, instead of taking the risk of having the suit being held barred if instituted within 12 years of the re-formation of the land. Under the special circumstances of the case we think the suit is one which comes under the proviso to Section 55. In the case of Dinesh Chunder Roy v. Golam Mustapha 16 C. 89 : 8 Ind. Dec. (N.S.) 59 the suit which was instituted, without the authority of the Court of Wards was held to have been rightly dismissed by the Lower Appellate Court. But in that case the sanction was filed only in the appellate stage, and there were no special circumstances as there are in the present case, in which, moreover, the sanction was filed before the actual trial commenced.

8. The appellants, however, we think, are entitled to succeed on the second ground. Although the proviso to Section 55 lays down that the Manager may authorise the plaint to be filed in order to prevent a suit from being barred by limitation, it expressly provides that such suits shall not be proceeded with except under the orders of the Court. We find that, in the rules made by the Board of Revenue under Section 70 of the Court of Wards Act and printed at page 93 of the Bengal Wards Manual 1909, it is stated that 'authority from the Manager need not be filed but the Commissioner authority to institute a suit should be filed as soon as it has been obtained, and when the suit is filed, in anticipation, the circumstances should be stated and the Court asked to stay proceedings till it is received. The suit should be filed in anticipation only when such filing is necessary to save limitation.' In the present case, although the suit' was instituted on the 18th April 1911, the Court was not asked to stay proceedings, and it was after the Amin had submitted his report, which was partly favourable to the plaintiffs, that the sanction was obtained on the 27th November 1912 and it was not filed in Court until the 5th September 1913, This was contrary to the rules framed by the Board of Revenue. But apart from that, Section 55 clearly say as that though the plaint may be filed in order, to prevent a suit from being barred by limitation, the suit shall not be proceeded with except under the orders of the Court. That being so, all the proceedings which were taken subsequently to the filing of the plaint were without jurisdiction and must, therefore, be set aside.

9. The result is that the decrees of the Courts below must be set aside and the suit remanded to the Court of First Instance for a trial de novo. The proceedings are to be taken from the stage of the filing of the plaint.

10. The respondents must pay the costs of the appellants in all the Courts.


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