Skip to content


Maharaja Sashi Kanta Acharjya Bahadur Vs. Nasirabad Loan Office Co. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtKolkata
Decided On
Reported inAIR1936Cal786
AppellantMaharaja Sashi Kanta Acharjya Bahadur
RespondentNasirabad Loan Office Co. Ltd. and ors.
Cases ReferredPadma Lochan v. Barada Kanta Civil Rule No.
Excerpt:
- .....mandal 1932 cal 135 and an unreported decision of a division bench in padma lochan v. barada kanta civil rule no. 1598 of 1934, decided on 4th april 1935 decided on 4th april 1935. i shall deal with the question on the merits later on but it is necessary first of all to decide a preliminary objection which has been raised by mr. karkoon. the suit was instituted in the court of the munsiff at mymensingh in his ordinary file. the munsiff had no powers under small cause courts act to try suits of the value of this suit. the decree which he passed was a decree against which an appeal could have been preferred by the petitioner to the lower appellate court. instead of filing an appeal an application has been moved in this court under section 115, civil p. c. there cannot be any doubt that.....
Judgment:
ORDER

R.C. Mitter, J.

1. This Rule has been obtained by the landlord whose suit to recover the balance of the transfer fee due to him under the provisions of Section 26-E, Ben. Ten. Act, has been dismissed by the learned Munsiff at Mymensingh on the ground that no suit lay. The position is this: Opposite party No. 1, The Nasirabad Loan Office, Co., Ltd., obtained a mortgage decree against opposite parties Nos. 2 and 3. In execution of that decree the mortgaged property was sold, but the mortgage decree not being fully satisfied, opposite party No. 1 obtained a decree for the balance under the provisions of Order 34, Rule 6, Civil P. C. In execution of this decree they put up the holding which is the subject matter of controversy, to sale. In the sale proclamation the holding was described as an ordinary occupancy holding. At the sale held by the Court opposite party No. 1 purchased the holding for Rs. 325 and deposited a sum of Rs. 65 in the executing Court, the sum being 20 per cent. of the purchase price. The sale was confirmed. The rent of this holding is Rs. 57-13-9 and therefore under the provisions of Section 26-E the landlord is entitled to either five times the annual rent or 20 per cent. of the purchase price whichever sum is greater. Five times the annual rent is Rs. 289-4-9 and therefore in accordance with the terms of that section the landlord is entitled to that sum in any case and not Rs. 65. The landlord accordingly instituted a suit to recover the balance of the money. The learned Munsiff has held that the value of the holding is Rs. 1,500 and on that basis the dues of the landlord will be Rs. 300. Mr. Bose who appears for the landlord says that his client will be satisfied if he is given a decree on the basis that he is entitled to five times the annual rent. In this Rule he prays for a decree for Rs. 224-4-9.

2. The question in this Rule therefore is whether the learned Munsiff was right in holding that no suit lay, but the proper remedy was by means of an application. In support of his view the learned Munsiff relies upon two decisions of this Court in Srinath Bose v. Debendra Nath Barari 1933 Cal 24 and Agbore Chandra Jalui v. Rajnandini Debi 1933 Cal 283. I shall indicate hereafter that the two aforesaid decisions have no bearing on the present question. In support of the Munsiff's view Mr. Karkoon has relied upon two cases of this Court, namely, the case in Sukh Chand Haldar v. Jajneswar Mandal 1932 Cal 135 and an unreported decision of a Division Bench in Padma Lochan v. Barada Kanta Civil Rule No. 1598 of 1934, Decided on 4th April 1935 decided on 4th April 1935. I shall deal with the question on the merits later on but it is necessary first of all to decide a preliminary objection which has been raised by Mr. Karkoon. The suit was instituted in the Court of the Munsiff at Mymensingh in his ordinary file. The Munsiff had no powers under Small Cause Courts Act to try suits of the value of this suit. The decree which he passed was a decree against which an appeal could have been preferred by the petitioner to the lower appellate Court. Instead of filing an appeal an application has been moved in this Court under Section 115, Civil P. C. There cannot be any doubt that this case falls within the provisions of Section 115, Clause (c) if not under Clause (b) of Section 115, because the Munsiff by erroneous decision on a point of law refused to exercise jurisdiction which is vested in law. This is the principle which has been laid down by Rankin, J., as he then was, in Hindley v. Joy Narayan Marwari 1920 Cal 305.

3. The question therefore is whether this Court can exercise its revisional jurisdiction in these circumstances. In my judgment the revisional power under Section 115 is a bar only when an appeal lies to this Court. The fact that an appeal lay to the lower appellate Court will not take away the powers of this Court to revise the order of the Munsif. The language of Section 115 is that the High may call for the record of any case which has been decided by any Court sabordinate to such High Court in which no appeal lies thereto. I accordingly over-rule the preliminary objection on the view which I have indicated above, which is supported not only by the decisions of this High Court but also of the other High Courts to which it is not necessary to refer in detail.

4. Regarding the merits of the case the principle is clear. A civil Court must entertain a suit of a civil nature unless the jurisdiction of the Court is either expressly or impliedly barred. This is the provision of Section 9, Civil P. C , which indicates that for the purpose of enforcing a civil right the normal and the ordinary method is by instituting a suit. The jurisdiction of the Court conferred by Section 9 may be taken away either expressly or impliedly altogether by taking away the remedy, or the legislature may prevent institution of a suit to enforce a civil right by prescribing another mode of obtaining assistance of a Court, as for instance by an application. But unless the jurisdiction of a civil Court is taken away altogether, or for enforcement of a right another method is provided for, namely, by means of a petition, a suit will be the proper remedy to get relief in respect of a civil right. This in my view is the principle from which the question ought to be approached and in the light of these principles I shall examine the cases which have been referred to in the Munsif's judgment as also the two cases which have been referred to by Mr. Karkoon. The cases referred to in Srinath Bose v. Debendra Nath Barari 1933 Cal 24 and 924 Agbore Chandra Jalui v. Rajnandini Debi 1933 Cal 283 relate to proceedings coming within the provisions of Section 36-J, Ben. Ten. Act, That section deals with only three classes of cases, namely where an occupancy holding is sold on the footing: (a) That it is a permanent tenure; (b) that it is a raiyati at a fixed rate or (c) that it is a lakhiraj. In these cases the landlord is expressly given the right to institute proceedings to recover the balance that will be due to him as landlord's transfer fee. The position in the above two cases in Srinath Bose v. Debendra Nath Barari 1933 Cal 24 and 924 Agbore Chandra Jalui v. Rajnandini Debi 1933 Cal 283 was that although the holding was an ordinary occupancy holding, the transfer was made on the footing and with the false description that it was either a permanent tenure or a raiyati at a fixed rate. The landlord made an application to recover the balance but the transferee's reply was that the remedy was in a suit. Section 26-J does not say that the right is to be enforced by a suit or by an application, but Section 188 says that an application has to be made for enforcing the right given under Section 26-J. Therefore, in those cases which come under Section 26 J, it can be said with a good amount of reasoning that the legislature by providing for an application for enforcement of that right, has taken away the right to enforce it by a suit.

With regard to the case that I have before me there is no indication in the Bengal Tenancy Act anywhere whether the remedy is to be sought by means of a suit or by means of an application. Mr. Karkoon says that where an ordinary occupancy holding is transferred but the transfer fee deposited is less than what is mentioned in Sections 26-C and 26-E the landlord is without a remedy to recover the money. He says that he cannot recover money in any civil Court and he cites by way of analogy the case in Sukh Chand Haldar v. Jajneswar Mandal 1932 Cal 135. That was a case in which the proper fee due to the landlord under Section 48-H had not been deposited and a suit was instituted to recover the legitimate dues of the landlord. This Court held that the landlord had no right to recover the same, and that all he can say is that the sublease was not binding on him. This is a judgment of a Judge sitting singly, and this decision accordingly is not binding on me. I cannot accept that view. If the landlord is not paid his legitimate dues certainly he has a right to seek assistance of the Court to recover. Ubi jus ibi remedium is a well settled principle of law. The question then is what is the proper form of procedure to enforce the right which is in controversy in this case. Inasmuch as the legislature has not indicated, either expressly or by necessary implication, that right of the landlord is to be enforced by an application, the power of the Court to entertain a suit under the provisions of Section 9 in my judgment remains unaffected. In this view of the matter I do hold that the proper remedy is a suit.

5. So far as the decision in Padma Lochan v. Barada Kanta Civil Rule No. 1598 of 1934, Decided on 4th April 1935 is concerned, the matter is not decided there in a binding way. There was a gift of an occupancy holding on the footing that it was an ordinary occupancy holding, but the recital was that the donees were related to the donor by blood within three degrees and the landlord's fee was not therefore paid. The landlord filed an application and said that the recital was false and he successfully established his case and the Court decreed landlord's fee. The donees moved this Court and it was contended that an application would not lie and the remedy of the landlord was a suit. The learned Judges of this Court said that they were doubtful as to what would be the proper form of procedure. Then they said that there was no merit in the rule at all and discharged the rule on that ground, although in one passage of the judgment they indicated that they were rather inclined to think that an application would be the proper form of procedure. Having regard to the form of that judgment I think that the matter has not been decided in a binding way. I accordingly set aside the judgment of the learned Munsif and in lieu thereof pass a decree in favour of the petitioner before me to the extent of Rs. 224-4-9. As this case is a case of first impression and the procedure is settled by me for the first time, I make no order for costs of this rule.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //