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Dwarkanath Mandal and anr. Vs. Srigobinda Choudhuri - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1929Cal130
AppellantDwarkanath Mandal and anr.
RespondentSrigobinda Choudhuri
Cases ReferredDwijapada Das v. Kalipada De
Excerpt:
- .....court of wards. 'the manager of the court of wards applied for a certificate to be filed to the certificate officer for rent alleged to be due on account of this tenure from the year 1326 to the year 1329 b.s. the certificate was filed. on the objection of the defendants made under section 9, public demands recovery act 3 of 1919 (b.c.), the certificate officer cancelled the certificate. the objection was that the rent was to be suspended on account of the defendants having been dispossessed at the instance of the plaintiff, of about 12 bighas of land. the tenure of the plaintiff consists, we are told, of about 100 bighas. the certificate officer apparently held that under the circumstances proved the landlord was not entitled to receive any rent. the contention in the court below was.....
Judgment:

B.B. Ghose, J.

1. This is an appeal by the defendants ''which arises out of a suit for rent which was dismissed by the Munsif, but an appeal by the plaintiff was decreed by the Subordinate Judge. The points which are urged on behalf of the appellants are three in number. The suit was for rent for the years 1326 to 1330. With regard to the rent of 1326 no decree has been made in favour of the plaintiff, as it was barred by limitation. The facts which gave rise to the question in controversy are these:

The estate of the plaintiff was under the management of the Court of Wards. 'The Manager of the Court of Wards applied for a certificate to be filed to the Certificate Officer for rent alleged to be due on account of this tenure from the year 1326 to the year 1329 B.S. The certificate was filed. On the objection of the defendants made under Section 9, Public Demands Recovery Act 3 of 1919 (B.C.), the Certificate Officer cancelled the certificate. The objection was that the rent was to be suspended on account of the defendants having been dispossessed at the instance of the plaintiff, of about 12 bighas of land. The tenure of the plaintiff consists, we are told, of about 100 bighas. The Certificate Officer apparently held that under the circumstances proved the landlord was not entitled to receive any rent. The contention in the Court below was that on account of this decision of the Certificate Officer the plaintiff is pecluded from suing for rent for the period covered by the decision of the Certificate Officer, and the same argument has been addressed before us which includes the rent for the years 1327 to 1329 B.S. The Subordinate Judge held that in the present case the Certificate Officer filed the certificate without any jurisdiction and, therefore, his order must be treated as if non-existent. It is, however, argued on behalf of the appellants that the Subordinate Judge is wrong in his conclusion.

2. It is submitted in the first place that the Certificate Officer took cognizance of the requisition for filing the certificate with jurisdiction, and he had also juris-diction to make the order cancelling the certificate. That being so his order should be treated as the order of a Court of special jurisdiction and as the order was made in the exercise of the jurisdiction of that Court, that order should operate as res judicata in the present case. A third point was urged that upon the facts found that the defendants had been deprived of 12 bighas of the lands comprising his tenure there should be total suspension of rent.

3. With regard to the last point raised as regards the total suspension of rent the Subordinate Judge found that in the pattah granted to the defendants the lands are included in several schedules and each schedule containing different plots of land was separately assessed. The lands of which the defendants have been dispossessed are included in one schedule the rent for which was Es. 3 odd per year. Upon that finding the Subordinate Judge came to the conclusion that there should be abatement of rent by that amount, and he gave a decree for the balance at the rate of Rs. 35-10-6. This question of suspension of rent has been elaborately dealt with by me in the case of Susil Kumar Biswas v. Rajani Kanta : AIR1927Cal737 where I have endeavoured to examine the question from all points of view with reference to the decided cases, and I do not propose to travel over the same grounds. In the present case the point appears to me to be covered by the decision of the Judicial Committee in the case of Katyayani Debi v. Udey Kumar Das 0049/1925 although in this case the rent WAS not fixed at so much per bigha. It was fixed for each schedule separately; and, therefore, it falls within that decision, I think, therefore, that the learned Subordinate Judge is right in his view that there should be no suspension of rent in this case but only abatement of rent as ordered by him.

4. The real question in controversy is whether the decision of the Certificate Officer could operate as res judicata or not in the present litigation. The learned advocate for the appellants relies upon a case, in which the judgment was dolivered by me: Dwijapada Das v. Kalipada De : AIR1927Cal421 in support of the contention that the judgment of the Certificate Officer with which we are concerned was the judgment of a Court of special jurisdiction and is, therefore, binding upon the civil Court in this case.

5. This leads us to the question as to whether the Certificate Officer is a Court and secondly, it is a Court of special jurisdiction as contemplated in the decision I have referred to and in all the cases cited in that judgment. Reference is made first to Section 57, Act 3 of 1913 (B.C.) where it is stated that the Certificate Officer shall be deemed to be a Court and any proceeding before him shall be deemed to be a civil proceeding within the meaning of Section 14, Lim. Act 1908. It is argued that this shows that the Certificate Officer shall be deemed to be a Court for all purposes and this position of the Certificate Officer is not restricted to the matter referred to in Section 14, Lim. Act. The contention of the learned advocate for the respondent, on the other hand, is that no such construction can be put on that section. He refers to Section 49 of the Act. Under Section 49 of the Act it is specially provided that every Collector, Certificate Officer and other officers acting under the Act shall have the power of a civil Court for the purpose of receiving evidence and so forth. It is contended, therefore, that certain powers of the civil Court have only been conferred on the Certificate Officer and he cannot be deemed to be a Court. It seems to me that there is considerable force in this contention, many officers have been invested with the powers of a Court for different purposes; for instance a Registering Officer exercises the powers of a Court for the purpose of summoning witnesses, taking evidence and so forth. In certain instances a Survey Officer has also been given that power. That does not necessarily make those officers a Court with special jurisdiction.

6. In my view the Certificate Officer cannot in any circumstance be considered as a Court. He is the mere agent for speedy and summary recovery of rents due to an estate under the management of the Court |of Wards. (I deal at present merely with 'the question of recovery of rent by the certificate procedure). The more requisition in a prescribed form by a person entitled to recover rent enables the Certificate Officer to file a certificate. This certificate may be challenged by the certificate debtor by following a certain procedure. If you call this officer a Court the procedure is contrary to all sense of justice and the rules universally followed by a Court. First comes the sentence and then the trial of the certificate debtor who comes and seeks for trial. That certainly cannot be the procedure of a Court of Justice. Then again the Certificate Officer may cancel the certificate on various grounds which need not be such as a judicial officer considers proper. For instance it appears from the judgment of the Munsif that in this case the Certificate Officer cancelled the certificate on a previous occasion relying upon the Commissioner's letter containing certain directions to the manager in which he directed that requisition should be made for certificate only in cases where there would be no contest.

7. Now if it is held that the decision of the Certificate Officer canceling the certificate prevents the plaintiff from bringing a suit in the regular Court, could it be said that even in the case last mentioned a person who made the requisition for certificate shall be debarred from getting his rent by a suit in the civil Court I think not. Moreover it seems to me that the intention of the legislature was that the Certificate Officer should deal with such simple questions as to whether the. certificate debtor was really in possession of the land for the rent of which the certificate has been filed, or whether he has. actually paid the amount due. It could not possibly have been the intention of the legislature that the Certificate Officer who cannot be presumed to be a trained lawyer, should decide such complicated question as arose in this case, as to whether there should be a suspension of the' entire rent because the defendants had been dispossessed of a small area of the tenure. The question involved is one of considerable difficulty and there has been a number of authorities taking different views on different sets of facts. In that view, in my opinion, the judgment of the Certificate Officer cannot operate as res judicata as regards the suspension of rent. Another argument raised on behalf of the respondent is that power has been given to the certificate debtor to question the certificate in the civil Court, but no power has been given to the landlord when the certificate is cancelled to question the decision of the Certificate Officer in a civil Court. To say that the landlord must be bound by the order of the Certificate Officer who cancels his certificate but the certificate debtor may question his decision by a reference to the civil Court would be essentially wrong. There-is considerable force in this argument which is not met by the reply of the appellants that the landlord chose his own tribunal and he must abide by its decision, right or wrong; and he cannot make a grievance if he is prevented from going to the civil Court and question the decision of the Certificate Officer.

8. I hold, therefore, that the Certificate-Officer not being a Court exercising special jurisdiction, any decision arrived at by him cannot operate as res judicata on any question raised in a civil Court. In that view it is unnecessary for me to discuss the question whether the action of the Certificate Officer in filing the certificate was ultra vires or not.

9. This appeal is, therefore, dismissed with costs.

Bose, J.

10. I agree.


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