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Satyendra Mohan Ghose and ors. and Vs. Raj Mohan Guha and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1915Cal831,29Ind.Cas.177
AppellantSatyendra Mohan Ghose and ors. and ;srimati Udaytara Chowdhurani and ors.
RespondentRaj Mohan Guha and ors.
Cases ReferredNaba Kishore Mandal v. Atul Chandra Chatterjee
Excerpt:
bengal tenancy act (viii of 1885). section 100, rules made under - common manager, powers and duties of--high court, jurisdiction of--common manager, position of. - holmwood, j.1. two rules were obtained in this matter of a common manager for an estate in dacca. the first, which is rule no. 360, was a rule calling upon the opposite party to show cause why the order of the district judge refusing to remove the common manager should not be set aaide on the grounds stated in the petition, and why such other order should not be passed as to this court may seem fit. the second rule, no. 1090, was in respect of a specific order made by the district judge permitting the common manager to raise rs. 7,000 for litigation and other necessary purposes by giving karmi grants to raiyats.2. with regard to the first matter, we do not in any way wish to enter into the question whether the common manager is good or bad or whether he ought or ought not to be removed......
Judgment:

Holmwood, J.

1. Two Rules were obtained in this matter of a common manager for an estate in Dacca. The first, which is Rule No. 360, was a Rule calling upon the opposite party to show cause why the order of the District Judge refusing to remove the common manager should not be set aaide on the grounds stated in the petition, and why such other order should not be passed as to this Court may seem fit. The second Rule, No. 1090, was in respect of a specific order made by the District Judge permitting the common manager to raise Rs. 7,000 for litigation and other necessary purposes by giving karmi grants to raiyats.

2. With regard to the first matter, we do not in any way wish to enter into the question whether the common manager is good or bad or whether he ought or ought not to be removed. What we do find is that the District Judge has not made the inquiry which, in our opinion, he should have made ugon the allegations before him and which under jurisdiction conferred on him by Section 98 of the Bengal Tenancy Act he was bound to make. As a matter of fact a question has been raised as to the jurisdiction of this Court to interfere. But it is obvious that this Court having made rules under Section 100 of the Bengal Tenancy Act, defining the powers and duties of managers, it must have power under Section 15 of the Charter to superintend and revise the orders of the District Judge tinder Chapter IX. It has been laid down in the case of Naba Kishore Mandal v. Atul Chandra Chatterjee 16 Ind. Cas. 193 : 17 C.W.N. 846 : 40 C. 150 that the position of a common manager under the Bengal Tenancy Act is analogous to that of a Receiver appointed by the Court under the provisions of Order XL of the Code of Civil Procedure, save and except that he is not liable to be sued. The learned Judge tells us that the parties were represented by legal practitioners in his Court and that he only took notice of such points as they chose to press before him. That does not appear to be the intention of the Act. If, as was argued by the other side, this is not, strictly speaking, a judicial proceeding, then 'those learned gentlemen had no authority to press or to waive any point. As a matter of fact it is, in our opinion, a power which the Judge is bound to exercise judicially and the position of the learned legal practitioners who appeared before him is that of amicus curias. It does not in any way derogate from the responsibility of the Judge himself to decide on the allegations which are made, either by taking evidence himself where questions of fact are involved or by appointing a Commissioner to go into any necessary accounts or other matters which require local investigation. It is impossible for the Judge to say that the manager has discharged his duty properly, in the face of positive allegations of misfeasance without making any inquiry and without taking any evidence.

3. We are, therefore, of opinion that this Rule No. 360 should be made absolute and the case should be sent back to the learned District Judge, and that he should mate an inquiry, either by himself or by a Commissioner, into the allegations which go contrary to the rules framed under the Bengal Tenancy Act, and also into any allegations which go to show that the common manager ought to be removed by reason of his having infringed any of the provisions of Section 98. We think, in the circumstances of the case, as these attacks upon the manager have been made by various co-sharers at distant periods during the time of his management, that in the first instance the expenses of the commission should be deposited by the parties who now seek it; but the ultimate costs will, of course, abide the result of the inquiry which is to be made. We assess one hearing fee of four gold niohurs to be borne by the several parties who are appearing to show cause.

4. With regard to the other Rule, No. 1090, we do not think that any question of jurisdiction under the provisions of the Code or the Charter arises. The learned Judge has to decide for himself whether the specific sum asked for by the common manager should be raised or not, and if in the exercise of his discretion he finds, as in this case, that it is necessary, there does not seem to be any reason or indeed authority for interference by this Court.

5. The Rule No. 1090, as regards the raising of Rs. 7,000, therefore, will be discharged with costs, two gold mohurs, to the common manager.

Walmsley, J.

6. I agree in the orders.


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