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Bejoy Kumar Addya and ors. Vs. Nagendra Nath Palit - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1936Cal497
AppellantBejoy Kumar Addya and ors.
RespondentNagendra Nath Palit
Cases ReferredAkshoy Kumar v. Hiraram
Excerpt:
- m.n. mukerji, j.1. the plaintiff instituted this suit to recover arrears of rent with damages in respect of a piece of homestead land. the claim was for a period of four years. the suit was tried and decreed by mr. sharuddin ahammed, munsif, 3rd court, at alipore, district 24-parganas, exercising the powers of a court of small causes. the defendants moved this court for revision of the decision, and on their application a rule was issued to show cause why it should not be set aside. one of the contentions urged on behalf of the defendants at the hearing of the rule before the division bench was that mr. ahammed had no jurisdiction to try the suit. in having to deal with this contention, the division bench came to be of opinion that there was a conflict of judicial opinion bearing upon the.....
Judgment:

M.N. Mukerji, J.

1. The plaintiff instituted this suit to recover arrears of rent with damages in respect of a piece of homestead land. The claim was for a period of four years. The suit was tried and decreed by Mr. Sharuddin Ahammed, Munsif, 3rd Court, at Alipore, District 24-Parganas, exercising the powers of a Court of Small Causes. The defendants moved this Court for revision of the decision, and on their application a rule was issued to show cause why it should not be set aside. One of the contentions urged on behalf of the defendants at the hearing of the rule before the Division Bench was that Mr. Ahammed had no jurisdiction to try the suit. In having to deal with this contention, the Division Bench came to be of opinion that there was a conflict of judicial opinion bearing upon the question. Hence this reference. The relevant facts are the following: The second Schedule to the Provincial Small Cause Courts Act (9 of 1887), in its different clauses, enumerates the classes of suits, of which Courts of Small Causes are precluded from taking cognizance. Clause (8) of that Schedule runs in these words:

A suit for recovery of rent other than house rent, unless the Judge of the Court of Small Causes has been expressly invested by the Local Government with authority to exercise jurisdiction with respect thereto.

2. Mr. Ahammed is the Munsif of the 3rd Court at Alipore. It is not disputed that, as provided in Section 25 of the Bengal, N. W. P. and Assam Civil Courts Act (12 of 1887), the Local Government has, by a Notification in the Official Gazette conferred upon him the jurisdiction of a Judge of a Court of Small Causes for the trial of suits up to the value of Rs. 50 cognizable by such Courts and that consequently he had jurisdiction, pecuniary as well as territorial, to entertain the present suit. But Mr. Ahammed, admittedly, has never been personally invested by the Local Government with authority to exercise jurisdiction with respect to suits for recovery of rent, as required by Clause (8) aforesaid. And as conferring on him the authority to try this suit-his jurisdiction having been questioned at the trial-he has relied upon a Notification of the Government of Bengal, dated 21st June 1904, which was issued in these words:

It is hereby notified that the Munsifs of Alipore and Sealdah in the District of the 24-Parganas are vested under Clause (8) of the second Schedule of the Provincial Small Cause Courts Act (Act 9 of 1887) with power to try under the Small Cause Court Procedure suits for the recovery of rent of homestead land within their respective jurisdiction when the value does not exceed Rs. 50.

3. The Division Bench were of opinion that a Notification such as this, which conferred jurisdiction upon the Court and not upon the Judge, is not a proper Notification under Clause (8). This was the view taken by Mookerjee and Beach-croft, JJ., of this very Notification in Safar Ali Mandal v. Golam Mandal 1916 Cal 574, with which the Division Bench were inclined to agree. They referred to two other decisions as supporting the contrary view: Akshoy Kumar v. Hiraram (1908) 35 Cal 677; and Mathur Hazra v. Paban Hazra (1914) 19 C W N 1238 (F N). They have formulated the following question for the decision of the Full Bench:

Whether in a Notification under Clause (8) of the second Schedule of the Provincial Small Cause Courts Act, it is necessary to confer powers by reference to the name of a particular Judge of a Court of Small Causes in order to enable him to try suits for the recovery of rent of homestead land under the Small Cause Court Procedure.

4. And, as the question has arisen in a civil revision case, the whole case also has been referred to the Full Bench for final decision. Now the foundation for the view that it is necessary to invest the particular officer by name rests upon two arguments: One is that in Clause (8) the words 'the Judge of the Court of Small Causes' are used; and the other is that the Act makes a distinction between 'Court of Small Causes' and 'Judge of the Court of Small Causes.' On both these grounds it is sought to be maintained that a general notification, by which all presiding officers of such a Court are once for all invested, would not be sufficient for the purposes of the clause. So far as the first of these arguments is concerned it does not seem to me strong enough to support the contention, because I do not see how the use of the words 'the Judge' suggests that the investing of the authority should be by name any more than by reference to the designation. It is quite true that there may be a point in requiring the notification to be made in respect of only such Judges of the Courts of Small Causes as may happen to have special merit deserving the conferment of special authority, as a means of ensuring a proper standard of efficiency in the Court. But at the same time, it is not unreasonable to assume that the Court itself, by reason of the volume of litigation of the particular type arising within the area covered by its territorial jurisdiction, may be considered deserving of being armed with such special power. And in the latter case the efficiency of the Court will be equally maintained if only the authorities concerned will be careful in their selection of the officer who is to take charge of it. As regards the second argument I am unable to agree that any such distinction as is supposed in it is intended by the Act. To begin with Section 4, that section says:....Court of Small Causes means a Court of Small Causes constituted under this Act and includes any person exercising jurisdiction under this Act in any such Court.

5. The distinction between the Court as an institution and the person who is the presiding officer of the Court-a Judge appointed under Section 6, an additional Judge appointed under Section 8, a Bench of two Judges appointed under Section 10, and the Registrar authorized under Section 12-is not kept in view in this definition. Then, there is a group of Sub-section 32 to 35, which speak of 'Courts invested with the jurisdiction of a Court of Small Causes,' meaning thereby Courts presided over by Subordinate Judges or Munsifs who are invested with Small Cause Court jurisdiction under Section 25, Bengal, N. W. P. and Assam Civil Courts Act (12 of 1887). If the wordings of the said sections of the two enactments, viz. Sub-section 32 to 35, Provl. Small Cause Courts Act (9 of 1887), and Section 25, Bengal, N. W. P., and Assam Civil Courts Act (12 of 1887), both of which Acts came into force on 1st July 1887, be compared, it will be seen that, while the former Act describes the Court as being invested with the jurisdiction of the Court of Small Causes, under the latter Act, it is the presiding officer, that is to say Subordinate Judge or the Munsif, who is so invested. So far, therefore, there was no distinction intended by the legislature. But the argument is that Clause (8), Schedule 2 to the Provincial Small Cause Courts Act should be interpreted on the footing that the legislature means such a distinction. The referring Judges, in agreement with the decision in Safar Ali Mandal v. Golam Mandal 1916 Cal 574, have expressed the view that the argument is well founded. Now, in Safar Ali Mandal v. Golam Mandal 1916 Cal 574, it has been observed:

Clause 8 of the Schedule must be read along with Sub-section 1, Section 15, and when they are so read, it becomes obvious that a distinction is drawn by the legislature between 'a Court of Small Causes' and 'the Judge of the Court of Small Causes.' Clause 8 requires that the Judge should have been expressly invested with authority to exercise jurisdiction and not that jurisdiction should have been conferred upon the Court. The distinction between the Court as an institution in which the Judge exercises judicial function and the particular individual who presides in that Court is fundamental and well recognized: see for instance Section 6, Small Cause Courts Act.

6. It is true that there is always a distinction between the Court as an institution and the Judge as the presiding officer of the Court. That is a natural distinction that is to be found in the enactment contained in Section 6 of the Act, and also in various other enactments referred to in Safar Ali Mandal v. Golam Mandal 1916 Cal 574. All that Section 6 shows is that when a Court of Small Causes has been established the Local Government shall appoint a Judge of the Court and that the same Judge may be Judge of one such Court or more. And a comparison of Sub-section (1), Section 15 with Clause (8), Schedule2, only brings out this difference: that while under the former provision suits of certain classes are excepted from the jurisdiction of all such Courts, suits for recovery of rent, other than house-rent, will not be excepted from the jurisdiction of any particular Court of which the presiding officer, the Judge, has been expressly invested with authority to exercise jurisdiction with respect thereto. The question is whether, when the legislature says, as it does in Clause (8), Schedule 2, 'unless the Judge has been invested,' it means that the particular officer who is the Judge at the time should be invested by name and that an investing of the Judge by reference to his office as Judge of the Court will not be sufficient. With all deference I am unable to see that the kind of distinction that is noticeable in the provisions aforesaid would justify us in answering this question in the affirmative.

7. In Akshoy Kumar v. Hiraram (1908) 35 Cal 677, it was held by this Court that the expression 'the Judge of the Court of Small Causes' in Clause (8) must be taken to apply either to a Court of Small Causes constituted under the Act or to a Court invested with the jurisdiction of a Court of Small Causes. The authority of this decision has not been, as indeed it cannot be, disputed. This very notification was the one on the strength of which in that case the Munsif who had not been personally invested, exercised jurisdiction; but the validity or otherwise of the notification on the ground that it did not purport to invest the particular officer by name with the special power was not considered in that case the question was not touched by the reference which this Court was dealing with. In the judgment in Safar Ali Mandal v. Golam Mandal 1916 Cal 574, there is a reference to the decision of this Court in Sahodra Mudialf v. Sarbosabha Dasi 1915 Cal 302. In that case N.R. Chatterjee, J. in the course of his judgment, referred to a general notification issued by the Madras Government under Clause (8), Schedule 2 to the Act investing all Subordinate Judges and District Munsifs within the Presidency with jurisdiction to try on their Small Cause Court side all suits for rent falling within the pecuniary limits of their special jurisdiction. Beach-croft, J., who, as already stated, was a party to the decision in Safar Ali Mandal v. Golam Mandal 1916 Cal 574, far from disapproving of a general notification of the present character, observed thus:

But the local Government has authority to vest Judges of Small Cause Courts with powers to try rent suits. No notification has been made vesting Small Cause Court Judges in Bengal in general, nor the Judge of first instance in this particular case, with such powers.

8. The notification that we are now considering came in for consideration before Jenkins, C.J. and N.R. Chatterjee, J., in Mathur Hazra v. Paban Hazra (1914) 19 C W N 1238 (F N). On the question of its validity the learned Chief Justice observed thus:

The notification is not happily worded and I can appreciate there are difficulties in the way of applying it to this case; still it seems to have been understood in a sense which makes it applicable to this case and we therefore feel that we ought not to interfere and disturb the jurisdiction which apparently has been exercised without question for a considerable number of years.

9. The facts of the case last cited are not set out in the report. As regards the wording of the notification it is certainly not happy, for it purports to confer powers on all the officers mentioned in it without stating that they would be competent to exercise such powers only in the event of their being posted as Judges of Courts of Small Causes established under Section 5, Provincial Small Cause Courts Act (9 of 1887), or vested with Small Cause Court jurisdiction under Section 25, Bengal, N. W. P. and Assam Civil Courts Act (12 of 1887). Conceivably, there may be other difficulties as well in the way of applying the notification. But whatever difficulties may arise in other cases, there is none in the application of the notification to cases of the present nature, to which it has been applied ever since 1904. In such circumstances it would not, in my opinion, be right to read it too strictly and declare it invalid. I think I ought to mention here that it does appear that in the course of the arguments in Mathur Hazra v. Paban Hazra (1914) 19 C W N 1238 (F N), the decision in Safar Ali Mandal v. Golam Mandal 1916 Cal 574, was cited before the Court: see 18 C W N (Journal) ccxxii.

10. In my judgment the words 'the Judge of the Court of Small Causes,' and not the expression 'the Court of Small Causes;' were used in Clause (8), not for emphasing a distinction of the character suggested in Safar Ali Mandal v. Golam Mandal 1916 Cal 574, or in the order of reference, but only as a compendious form of expression which would include not merely Courts of Small Causes as defined in Section 4 but also officers invested with Small Cause Court powers under Section 25, Bengal, N. W. P. and Assam Civil Courts Act (12 of 1887). I am also of opinion that upon the words used in the clause there is nothing which can legitimately form the foundation for the view that in vesting a Judge with authority to exercise special jurisdiction under that clause, it is necessary to confer such authority by reference to the name of the particular Judge. It has been argued before us on behalf of the petitioners that the word 'expressly' means that the conferment should be by name. I do not find any authority for this view; and in my opinion the word has been used in contradistinction to 'impliedly' and to provide that no conferment of authority by implication will be sufficient. If the legislature intended a conferment of authority by name, such intention could have been easily expressed as, it has been in other enactments; as for instance, in Section 36 (1), Bengal, N. W. P. and Assam Civil Courts Act (12 of 1887), Section 39, Criminal P. C. (5 of 1898), etc. There is authority for the view that no vesting by name is necessary under Clause (8): Shankar Nana v. Jagannath Mathura 1928 Bom 265.

11. My answer to the question formulated for our decision therefore is in the negative; and the petitioners' contention on the question of jurisdiction should, in my opinion, fail. It has been argued before us in support of the Rule that the plaintiff has not been successful in making out his title to the rents, because he has failed to establish that the jama in suit is included in the share of mauzah Mayapur which the plaintiff has purchased. This contention is sufficiently negatived by the very clear findings which the Munsif has arrived at and recorded in his decision. The learned Munsif has observed that though it does not appear very conclusively that the jama lies within mouzah Mayapur, still there is ample documentary evidence satisfactorily establishing that a jama corresponding to the one in suit has been, from ancient times, held by the defendants' predecessors under the plaintiff's predecessors; that there is not a scrap of documentary evidence in support of the lakheraj title which the defendants set up; and that the relationship of landlord and tenants as between the plaintiff and the defendants has been established. A plea of limitation has also been urged. It is conceded that the plea is well founded. That plea succeeding, the plaintiff can get a decree in respect of his claim for three years only and not four. The decree will have to be modified accordingly. The Rule should be made absolute to the extent indicated above. No order for costs in this Court.

Jack, J.

12. The question referred to this Bench for decision is

Whether in a notification under Clause 8, Schedule 2, Provincial Small Cause Courts Act, it is necessary to confer powers by reference to the name of a particular Judge of a Court of Small Causes in order to enable him to try suits for the recovery of rent of homestead land under the Small Cause Court Procedure.

13. It arises out of the trial of a suit for recovery of rent of homestead land for the years 1337 to 1340 B.S. in the Court of the third Munsif of Alipore in which one of the defences raised by the defendants was that the suit was not triable under the Small Cause Court Procedure because the Munsif had not been expressly vested with powers to try such suits under that procedure. Under Article 8, Schedule 2, Small Cause Courts Act, a suit for the recovery of rent other than house rent is excepted from the cognizance of a Court of Small Causes unless the Judge of the Court of Small Causes has been expressly invested by the Local Government with authority to exercise jurisdiction with respect thereto. In the present case the third Munsif of Alipore, Mr. Ahmed, has been invested by the Local Government under Section 25, Act 12 of 1887, with the powers of a Court of Small Causes for the trial of suits cognizable by such Courts up to the value of Rs. 50, but he has not been personally invested with powers to try suits for the recovery of rent other than house rent. He is exercising this jurisdiction only by virtue of a notification of the Government of Bengal dated 21st June 1904 as follows:

It is hereby notified that the Munsifs of Alipore and Sealdah in the district of the 24-Parganas are vested under Clause (8), Schedule 2, Provincial Small Cause Courts Act (Act 9 of 1887) with power to try under the Small Cause Court Procedure suits for the recovery of homestaed land within their jurisdictions when the value does not exceed Rs. 50.

14. The question then is whether as a Munsif of the third Court, Alipore, the Munsif can be said to have been expressly invested by the Local Government with jurisdiction to try the suit for recovery of the rent of homestead land, clearly he has been expressly invested with this jurisdiction by his appointment as Munsif of Alipore which, under the notification, includes the jurisdiction. In Safar Ali Mandal v. Golam Mandal 1916 Cal 574 a contrary view was taken on the ground that the notification merely invested the Court of the Munsif with jurisdiction, but this is clearly not correct for the notification expressly invested the Munsifs of Alipore with the jurisdiction and not merely the Courts at Alipore. This was recognized in 19 (F N) Mathur Hazra v. Paban Hazra (1914) 19 C W N 1238 (F N), Civil Rule 500 of 1914, in which their Lordships Jenkins, C.J. and N.R. Chatterji, J., remark that the notification seems to have been understood in a sense which makes it applicable, and they therefore feel they ought not to disturb the jurisdiction which apparently had been exercised without question for a considerable number of years. This was in 1914 (13th July), 10 years after the notification, and there seems to have been no doubt that the notification conferred jurisdiction until the judgment of their Lordships Mukerji and Beachcroft nine days later (21st July 1914) based, I think, with all due respect, on a misreading of the terms of the notification which invests with jurisdiction not the Alipore Court but the Munsifs who preside in those Courts. The objection was clearly not to the general form of the notification because one of the learned Judges Beachcroft, J. in another case, Sahodra Mudialf v. Sarbosabha Dasi 1915 Cal 302 referred to in the judgment, suggests that the Bengal Government might have made a notification vesting Small Cause Court Judges in general in Bengal with such powers. I, therefore, agree with my learned brother Mukerji, J. that the question referred to the Bench should accordingly be answered in the negative. On the merits of the case since it has been found on the evidence that relationship of landlord and tenant exists, and that the rent is due, there is no ground for interference with the decree except as regards the rent of the 1st year which is admittedly barred by limitation and I agree that the decree must be modified accordingly.

D.N. Mitter, J.

15. The question which has been referred to the Full Bench for decision is framed in the following terms:

Whether in a notification under Clause (8), Schedule 2, Provincial Small Cause Courts Act, it is necessary to confer powers by reference to the name of a particular Judge of a Court of Small Causes in order to enable him to try suits for the recovery of rent of homestead land under the Small Cause Court Procedure.

16. This reference has arisen in a rule obtained by the defendant under Section 25, Provincial Small Cause Courts Act (Act 9 1887), for the revision of a decree of Mr. Ahmed, the third Munsif of Alipore exercising the powers of a Court of Small Causes. It appears that Nagendra Nath Palit brought a suit valued at about Rs. 13 odd for recovery of arrears of rent with respect to homestead land for the years 1337 to 1340 B.S. in the Court of the said Munsif. Two defences were taken by defendant (1) that the Court has no jurisdiction to try' the suit as Mr. Ahmed was not personally invested with powers to try suits for rent of homestead lands of the value of Rs. 50 or under, (2) that there is no relationship of landlord and tenant between the parties. The Munsif exercising the powers of the Court of Small Causes rejected both the defences and decreed the plaintiff's suit. The defendant obtained a rule on several grounds including the ground of want of jurisdiction of the trying Court to entertain the suit and including a further ground which was not raised in the Court below viz., that a portion of the plaintiff's claim was barred by limitation. As there was a conflict of opinion regarding the question of jurisdiction and as this question arises in a civil revision case the whole case is referred for the final decision of the Full Bench under Clause 4, Ch. 7, Appellate Side Rules. The question of jurisdiction referred to the Full Bench depends on the construction of the provision of Section 15, Small Cause Courts Act, read with Clause 8, Schedule 2. Under Section 15 a Court of Small Causes shall not take cognizance of the suits specified in Schedule 2 as suits excepted from the cognizance of a Court of Small Causes, and it is further enacted by Clause (2) of that section that:

Subject to the exceptions specified in that schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed five hundred rupees shall be cognizable by a Court of Small Causes.

17. Under Clause (8), Schedule 2:

A suit for the recovery of rent, other than house rent, unless the Judge of the Court of Small Causes has been expressly invested by the Local Government with authority to exercise jurisdiction with respect thereto,

18. has been exempted from the jurisdiction of the Small Cause Court. The defendant contends that the Munsif who is the Judge of the Court of Small Causes in this case has not been expressly invested by the Local Government with authority to exercise jurisdiction in the matter of suits for the recovery of the rent of homestead lands and that, therefore, he has no jurisdiction to try the suit. The plaintiff on the other hand contends that the said Munsif with powers to try under Small Cause Court Procedure has been expressly invested to try such suits for the recovery of rent of homestead lands under Rs. 50 under the notification of 21st June 1904 although Mr. Ahmed, the trying Munsif, has not been personally invested with such jurisdiction. The Notification of the Government of Bengal, dated 21st June 1904, is in these terms:

It is hereby notified that Munsifs of Alipur and Sealdah in.the district of 24-Perganas are vested under Clause 8, Schedule 2 Provincial Small Cause Courts Act (9 of 1887), with power to try under the Small Cause Court Procedure, suits for the recovery of rent of homestead lands within their respective jurisdictions, when the value does not exceed Rs. 50.

19. The defendant replies that this notification is of no avail for the special authorization contemplated by Clause 8 is entirely personal to the presiding Judge and he relies on the case in Safar Ali Mandal v. Golam Mandal 1916 Cal 574, in support of this view. 19 C W N 1236 (1) undoubtedly supports the contention of the defendant-petitioner. On the other hand the plaintiff opposite party relies on a decision of Sir Lawrence Jenkins, C.J., and N.R. Chatterji, J., in Mathur Hazra v. Paban Hazra (1914) 19 C W N 1238 (F N), where the learned Chief Justice observed as follows with regard to the effect of this notification:

The Notification is not happily worded and I can appreciate there are difficulties in the way of applying it to this case; still it seems to have been understood in a sense which makes it applicable to this case and we therefore feel that we ought not to interfere and disturb the jurisdiction which apparently has been exercised without question for a considerable number of years.

20. On the other hand the reasoning of Mukerji and Beachcroft, JJ., in Safer Ali Mandal v. Golam Mandal 1916 Cal 574 is expressed in the following language:

Clause 8 of the schedule must be read along with Sub-section 1 of Section 15 and when they are so read, it becomes obvious that a distinction is drawn by the Legislature between `a Court of Small Causes' and 'the Judge of the Court of Small Causes.' Clause 8 requires that the Judge should have been expressly invested with authority to exercise jurisdiction, and not that jurisdiction should have been conferred upon the Court. The distinction between the Court as an institution in which the Judge exercises judicial function and the particular individual who presides in that Court is fundamental and well recognised;

21. and again the learned Judges proceed:

It is clear upon a clear reading of Clause 8 and assigning to the term its natural meaning, that the Legislature intended that suits for the recovery of rent should be tried under the Small Cause Court Procedure, only by such Judges as had been expressly authorised to exercise jurisdiction in that behalf, it was not intended that jurisdiction should be conferred by a general order on a particular Small Cause Court irrespective of the qualifications by the individual officer who may preside therein.

22. It has been said that in some of the provisions of the Small Cause Courts Act a distinction is drawn between a Court of Small Causes and a Judge of a Court of Small Causes, and we were referred to Section 6, Provincial Small Cause Courts Act. Section 4 comes before Section 6 of the Act and under Section 4 which is the definition section,

unless there is something repugnant in the subject or context 'Court of Small Causes' means a Court of Small Causes constituted under this Act and includes any person exercising jurisdiction under this Act in any such Court.

23. The distinction between the Court as an institution and the person who is the presiding officer of the Court which runs through Section 6, Section 8, Section 10 and Section 12 is not observed in Section 4. Under Section 4 the Munsif of Alipore would be a person exercising jurisdiction under this Act in any such Court for under Clause 8, Schedule 2, all Munsifs of Alipur exercising Small Cause Court powers have been expressly invested by the Local Government under the Notification of June 1904. The word 'expressly invested' is used in contradistinction to the word 'impliedly' or 'inferentially', The word 'expressly' in Webster's dictionary is stated to mean 'in the express, direct or pointed manner, in direct terms, plainly' and the word `Express' means according to Webster 'directly stated; not implied or left to inference; distinctly or pointedly given, made unambiguous by special intention.' In Chamber's Dictionary the word 'Express' means 'pressed or clearly brought out, exactly representing, directly stated, explicit, clear, intended or sent for a particular purpose'. In construing an Indian Statute as an English Act of Parliament the ordinary sense of the words must be looked into and Dictionaries have to be consulted. As Lord Coleridge, C.J. observed in Queen v. Peters (1886) 16 Q B D 636 at p. 641:

I am quite aware that dictionaries are not to be taken as authoritative exponents of the meanings of words used in Acts of Parliament, but it is a well-known rule of Courts of law that words should be taken to be used in their ordinary sense and we therefore sent for instruction to these books.

24. The word 'expressly invested' is not equivalent to 'invested by name'. This view has been adopted in Bombay in a recent case with referrence to Clause 8 and it has been held that it is not necessary to invest the powers by a reference to the name of a particular Judge: See Shankar Nana v. Jagannath Mathura 1928 Bom 265. The view I am taking receives considerable support from a Full Bench of the Madras Court in Soundaram Ayyar v. Sennia Naicken (1900) 23 Mad 547, where Sir Arnold White, C.J. observed as follows with reference to a Notification much more general in terms than the Notification of 21st June 1904:

Amongst excepted suits specified in the Schedule are suits for the recovery of rent other than house-rent, unless the Judge of the Court of Small Causes has been expressly invested by the Local Government with authority to exercise jurisdiction with respect thereto (Article 8). By a Notification dated 24th January 1888, the Madras Government has invested all Subordinate Judges and District Munsifs within the Presidency with jurisdiction to try on their small cause side all suits for rent falling within the pecuniary limits of their special jurisdiction. The effect of Article 8 and the notification read together is to give a Judge jurisdiction to entertain a suit for rent as a small cause suit provided (i) he is a Judge of a class to whom the notification applies, and (ii) the amount claimed is not beyond the pecuniary limits of his special jurisdiction,

25. I am of opinion that the Notification of June 1904 although not very happily expressed is in substantial compliance with the provision of Clause 8, Schedule 2, of the Small Cause Courts Act; that it is in accordance with the Notification under Clause 82 in Madras--Notification which was issued so far back as 1888--that it is consistent with the notification issued under the same clause in Bombay--Notification which has been enforced since September 1911: see Ram Krishna Yeswant v. The President Vengurla Municipality 1916 Bom 106, and has been acted upon in Bengal since 1904 notwithstanding the decision of Mookerji and Beachcroft, J J. in Safar Ali Mandal v. Golam Mandal 1916 Cal 574. It seems to me that the intention of the Legislature was that if the Judge of the Court of Small Causes was an officer invested with jurisdiction to try Small Cause Court suits up to a certain limit, viz. whether a Munsif or a Subordinate Judge of a particular district, and if such officers were expressly invested by reference to a class of such officers with powers to try suits for rent of homestead lands by a Notification of the Local Government, such a notification would not be ultra vires of the statute but would be in substantial compliance with it.

26. For the aforesaid reasons I would answer the question referred to the Full Bench in the negative. The next point argued before us is that the Small Cause Court Judge has committed an error in law in coming to the conclusion that the relationship of a landlord and tenant exists between the parties. This is a pure question of fact and is supported by documentary evidence filed on behalf of the plaintiff. This finding cannot be assailed in revision under Section 25 of the Act. A plea of limitation has been raised for the first time before the High Court. Such a plea is permissible under Section 3, Limitation Act. It appears that the suit has been brought for four years' rent; as the case is not governed by the Bengal Tenancy Act it has been conceded on behalf of the opposite parties that the claim for rent beyond three years of the date of the institution of the suit is barred by limitation. The plaintiff's claim for the year 1337 B.S. must be dismissed. The decree of the Small Cause Court Judge will be varied accordingly.

S.K. Ghose, J.

27. The question referred to the Full Bench is:

Whether in a notification under Clause (8) of Schedule 2, Provincial Small Cause Courts Act, it is necessary to confer powers by reference to the name of a particular Judge of a Court of Small Causes in order to enable him to try suits for the recovery of rent of homestead land under the Small Cause Court Procedure.

28. The reference arises out of an application made by the defendants under Section 25, Provincial Small Cause Courts Act, against a decree in a suit for recovery of arrears of rent of homestead land situated within a Municipality. The suit was tried by Mr. S. Ahmed, Munsif of the Third Court at Alipore, under the Small Cause Court Procedure and one of the defences was that this procedure was not applicable. It appears that under Section 25, Bengal, Agra, and Assam Civil Courts Act 12 of 1887 the Local Government had by notification conferred upon Mr. Ahmed personally the jurisdiction of a Judge of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887 for the trial of suits cognizable by such Courts up to the value of Rs. 50. There is also a notification issued by the Local Government on 21st June 1904 which runs thus:

It is hereby notified that the Munsifs of Alipore and Sealdah in the district of the 24- Parganas are vested under Clause (8) of Schedule 2, Provincial Small Cause Courts Act (Act 9 of 1887), with power to try under the Small Cause Court Procedure suits for the recovery of homestead land within their respective jurisdiction when the value does not exceed Rs. 50.

29. The point is whether this notification is sufficient to confer upon Munsifs of Alipore and Sealdah in general and upon Mr. Ahmed in particular jurisdiction to try a suit for recovery of rent, other than house rent, under the Small Cause Court Procedure. The answer would be in the affirmative, it is contended, in accordance with the decisions in Akshoy Kumar v. Hiraram (1908) 35 Cal 677, and Mathur Hazra v. Paban Hazra (1914) 19 C W N 1238 (F N); but it would be in the negative in accordance with the decision in Safar Ali Mandal v. Golam Mandal 1916 Cal 574. In the referring judgment Nasim Ali, J. states that he is inclined to take the latter view. Now, Sub-section (1) of Section 15, Provincial Small Cause Courts Act 9 of 1887, runs thus:

A Court of Small Causes shall not take cognizance of the suits specified in Schedule 2 as suits excepted from the cognizance of a Court of Small Causes.

30. Schedule 2 is headed 'suits excepted from the cognizance of a Court of Small Causes,' and Clause (8) runs thus:

A suit for the recovery of rent, other than house rent, unless the Judge of the Court of Small Causes has been expressly invested by the Local Government with authority to exercise jurisdiction with respect thereto.

31. That there is a distinction made between a 'Court' and a 'Judge of the Court' is quite clear and it is borne out by the other provisions of the Act. Under Section 4:

'Court of Small Causes' means a Court of Small Causes constituted under this Act and includes any person exercising jurisdiction under this Act in any such Court.

32. Therefore, the expression 'Court of Small Causes' under the Act would include the Judge presiding in the Court; in other words 'unless there is something repugnant in the subject or context,' a provision in the Act relating to a Court of Small Causes would apply also to the Judge. On the other hand 'Judge' is not defined and 'the Judge of the Court of Small Causes' (to use the expression in Clause 8) is not necessarily an officer appointed under Section 6 of this Act, but may be an officer invested with powers under Section 25, Civil Courts Act 12 of 1887. In this connexion it may be noted that the natural distinction between a Court and a Judge as a person is recognized and maintained in the Provincial Small Cause Courts Act as a glance at Chap. II will show. Thus under Section 5 the Court may be established; under Section 6, the Judge may be appointed and he may be Judge of more than one Court; under Section 9, the Judge is liable to suspension or dismissal; and so on. Section 31 provides that a Judge of a Court of Small Causes may be appointed to some other office. Mr. Bose for the plaintiff opposite party has contended that the distinction is lost sight of in Sub-section 32 and 33, but these two sections deal with the Court only and indeed the argument does not help Mr. Bose. So in the material Clause (8), Schedule 2 it is the Judge that is the presiding officer of the Court who must be 'expressly invested,' with the necessary authority.

33. The next point is, what is a Munsif? Is he a Court or is he a person? Here again the provisions of Act 12 of 1887, which came into force on the same date as Act 9 viz., on 1st July 1887 preserve the natural distinction between an officer and the holder of the office. See for instance, Chap. 2 of the Act. Section 3 gives the four classes of Courts and Section 4 provides for the number of Judges and Munsifs. The succeeding sections deal with the different classes of officers, Sub-section 7 and 12 in particular deal with Munsifs. Section 13 provides for the local limits of the jurisdiction of Courts while Section 19 deals with the jurisdiction of a Munsif. Chap. V deals with misfeasance which is purely personal to the officers concerned. The same distinction is seen in Section 38 which speaks of the presiding officer and Section 39. So far as the material Section 25 is concerned, its terms ensure that a particular Subordinate Judge or Munsif shall be given the necessary jurisdiction. But in Clause (8), Schedule 2, Provincial Small Cause Courts Act, the terms require that the Judge of the Court shall be invested. Where a Munsif of Alipore is the Judge, and a notification like the one of 21st June 1904 invests such a Munsif with the necessary jurisdiction, it would seem to be sufficient compliance with the law. The case in Akshoy Kumar v. Hiraram (1908) 35 Cal 677 did not touch the point at issue now. It merely held that Clause (8), Schedule 2, would apply either to a Court of Small Causes constituted under the Act or to a Court invested with the jurisdiction of a Court of Small Causes. On the other hand, in C. R. 500 of 1914, 19 C W N 1238 (F N) Mathur Hazra v. Paban Hazra (1914) 19 C W N 1238 (F N) the material question came up expressly before Jenkins, C. J., and N.R. Chatterjea, J. The learned Judge said:

The notification (of 21st June 1904) is not happily worded and I can appreciate there are difficulties in the way of applying it to this case; still it seems to have been understood in a sense which makes it applicable to this case, and we therefore feel that we ought not to interfere and disturb the jurisdiction which apparently has been exercised without question for a considerable number of years.

34. What is stated here is almost a principle of factum valet, though not quite. On the other side is the decision in the case in Safar Ali Mandal v. Golam Mandal 1916 Cal 574 which the referring Judges are inclined to follow. In that case the judgment proceeded by first pointing out that a distinction is drawn by the legislature between a 'Court of Small Causes' and a 'Judge of the Court of Small Causes,' and next that Clause (8) requires that the Judge should have been expressly invested with authority to exercise jurisdiction. The judgment proceeds:

It is clear upon a clear reading of Clause (8) and assigning to the term its natural meaning, that the legislature intended that suits for the recovery of rent should be tried under the Small Cause Court Procedure, only by such Judges as had been expressly authorised to exercise jurisdiction in that behalf, it was not intended that jurisdiction should be conferred by a general order on a particular Small Cause Court, irrespective of the qualification of the individual officer who may preside therein.

35. The judgment however did not go further and discuss the question whether a Munsif is a Court or an officer, in other words a Judge of the Court. Undoubtedly the notification of 21st June 1904 is not happily worded as pointed out by Jenkins, C.J. and N.R. Chatterjea, J. It also overlooks the question of the qualifications of the individual officer as pointed out by Mookerjea and Beachcroft, JJ. Still the notification confers the authority on the Judge when the latter belongs to a particular class of Munsifs. Therefore it complies with the terms of Clause (8). It has been sought to be argued that the word ' expressly ' means ' by name.' There is no authority cited beyond the fact that in some cases Government have invested the officer by name. On the other hand, Government have also invested officers with powers ex officio. See for instance the list given at p. 588 of the Bengal Civil List up to 1st January 1936 showing various investments of powers ex officio in the case of certain Judicial Officers of the 24-Perganas, e.g. the Judge of the 24-Perganas is ex officio special Judge in that district under Section 115 (c), B. T. Act, which enacts that 'the Local Government shall appoint one or more persons to be special Judge, etc.' In such cases, to quote the language of Jenkins, C.J. 'it seems to have been understood in a sense which makes it applicable to such particular case. On the other hand, the word 'express' is defined thus in Wharton's Law Lexicon: 'that which is not left to implication as express promise, express covenant.' This is not dissimilar to the ordinary dictionary meaning (Oxford Dictionary) ' definitely stated, not merely implied.' This was the view taken by Patkar and Baker, JJ. in Queen v. Peters (1886) 16 Q B D 636 relying on Akshoy Kumar v. Hiraram (1908) 35 Cal 677. Thus a notification investing the Judge of a particular Court of Small Causes in a particular district would be express enough to satisfy clause (8), though the name of the Judge is not mentioned. Yet the notification of 21st June 1904 is really not different from that.

36. There are also such provisions as Section 36 of Bengal Act XII of 1887, where by the 'Local Government may invest with the powers of any Civil Court under this Act by name or in virtue of office' etc. In my judgment, the question referred to the Full Bench for decision should be answered as follows: 'In a notification under Clause (8), Schedule 2, Provincial Small Cause Courts Act it is not necessary to confer powers by reference to the name of a particular Judge of a Court of Small Causes in order to enable him to try suits for the recovery of rent of homestead land under the Small Cause Court Procedure.' On the merits of the case, it it conceded that one year's rent is barred by limitation and the decree must be modified accordingly. In other respects there is no case for interference.

Patterson, J.

37. I concur in the judgment of my learned brother Mukerji, J., and have nothing to add.


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