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Promada Nath Roy Bahadur Vs. BasiruddIn Quazi - Court Judgment

LegalCrystal Citation
Subject Property; Civil
CourtKolkata
Decided On
Reported inAIR1925Cal414
AppellantPromada Nath Roy Bahadur
RespondentBasiruddIn Quazi
Cases ReferredAbid Husain Khan v. Ahmad Husain A.I.R.
Excerpt:
- .....follows:-' for the purpose of an enquiry and report as to the value of the occupancy holding the subject-matter of the suit on the basis that the rent is liable to be enhanced at the instance of the plaintiff,' and the lower court was 'requested to direct its enquiry as to the value of the occupancy holding both at the time of the institution of the suit and at the date of the judgment of the high court.'2. the learned officiating subordinate judge has submitted his report by which he finds that the value of the occupancy holding exceeds rs. 10,000.3. the learned vakil for the respondent has taken two objections to the report. the first was that the learned subordinate judge did not direct a local enquiry. in my judgment there is no substance in that point. the question whether there.....
Judgment:

1. This is an application by the plaintiff for a certificate that this is a it case for appeal to His Majesty in Council. The matter came before my learned brother Mr. Justice Richardson and myself on the 3rd December, 1923, and it was then decided that: the appeal did involve a substantial question of law, and this Court remanded the case under Order 45, Rule 5 of the Code of Civil Procedure, for enquiry and report as to the value and the form of the order was as follows:-' For the purpose of an enquiry and report as to the value of the occupancy holding the subject-matter of the suit on the basis that the rent is liable to be enhanced at the instance of the plaintiff,' and the lower Court was 'requested to direct its enquiry as to the value of the occupancy holding both at the time of the institution of the suit and at the date of the judgment of the High Court.'

2. The learned Officiating Subordinate Judge has submitted his report by which he finds that the value of the occupancy holding exceeds Rs. 10,000.

3. The learned Vakil for the respondent has taken two objections to the report. The first was that the learned Subordinate Judge did not direct a local enquiry. In my judgment there is no substance in that point. The question whether there should be a local enquiry was one for the discretion of the learned Subordinate Judge, and it seems to me that the reasons which the learned Subordinate Judge gave for not directing a local enquiry were substantial and sufficient.

4. The second point upon which the learned Vakil relied was that the principle, on which the valuation of the subject-matter of the suit and of the appeal had been made, was not correct. His argument was that the subject-matter of the suit and of the appeal was not the occupancy holding or in other words that the value of the occupancy holding did not represent the value of the subject-matter of the suit and of the appeal.

5. The suit was brought for the recovery of rent at an enhanced rate under Section 30 of the Bengal Tenancy Act as well as for additional rent under Section 52 of that Act against the defendant, who was a tenant. The learned Vakil drew our attention to the case of Abid Husain Khan v. Ahmad Husain A.I.R. 1923 P.C. 102 which was decided by the Judicial Committee of the Privy Council on the 6th of March, 1923, to which our attention was not drawn at the time of the previous hearing, and having heard the learned Vakil and after considering the judgment to which ho referred, I have come to the conclusion that the holding was not the subject-matter of the suit and of the appeal. In my judgment the subject-matter of the suit and of the appeal was the plaintiff's claim to recover the enhanced rent and the additional rent under Section 52 of the Bengal Tenancy Act. That claim amounted to a sum of Rs. 192 and the suit related to arrears of rent. That being so even if twenty years purchase be taken as a reasonable period for capitalization it is admitted by the learned Vakil that the value of the subject-matter of the suit and of the appeal on that basis cannot come up to Rs. 10,000 which is the amount mentioned in Section 110 of the Code of Civil Procedure.

6. The learned Vakil for the applicant however argued that the case comes within the second paragraph of Section 110 and submitted that the decree of this Court from which he desired to appeal, involved directly or indirectly a claim or question to or respecting property of like amount, that is, Rs. 10,000. In my judgment the facts of this case do not bring it within the terms of that paragraph of the section.

7. Finally the learned Vakil argued that this Court should apply the provisions of Clause (c) of Section 109 of the Code of Civil Procedure. It cannot be said that this suit raises a matter of great public importance nor do I think that it raises a matter of great private importance. It has been pointed out by my learned brother during the course of the argument that Section 111 of the Bengal Tenancy Act, on which the decision of the High Court was based, provides that if an order has been made under Section 101 directing the preparation of the Record-of-Rights a Civil Court shall not entertain any application made under Section 158 or any suit or application for the alteration of the rent until three months after the final publication of the Record-of-Rights. So that the judgment of the High Court does not finally decide the matter between the parties and the effect of it is that the entertainment of the suit is merely postponed until after the final publication of the Record-of-Rights.

8. Filially the learned Vakil argued that this case involved a matter which could not be measured in money by reason of the fact that the plaintiff was making a claim that the rent was liable to be enhanced. In a sense that liability for enhancement may not be capable of being measured by a particular sum of money, but it is to be noted that the suit does include a 'claim for enhancement and if the suit succeeds and the rent is enhanced it will follow that by reason of Section 37 of the Bengal Tenancy Act another enhancement will not take place within a space of 15 years.

9. For these reasons I am of opinion that the subject-matter in dispute of the suit and of the appeal is not Rs. 10,000 in value and, therefore, the case does not comply with the requirement of Section 110 of the Code of Civil Procedure. Consequently this application must be refused with costs 5 gold mohurs, but having regard to the grounds on which we have decided this application, we direct that each party do bear his own costs of the enquiry in the lower Court. Application refused.


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