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Hrishikesh Mitra Vs. Barada Prosad Roy Choudhuri and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtKolkata
Decided On
Reported inAIR1938Cal517
AppellantHrishikesh Mitra
RespondentBarada Prosad Roy Choudhuri and ors.
Cases ReferredSati Prosad Garga v. Gobinda Chandra
Excerpt:
- .....to the court of the subordinate judge of khulna on 14th september 1935 and was registered as rent suit no. 40 of 1935 of that court. after this, the 13 annas hissya withdrew the certificate proceedings.6. of the tenant defendants only one, namely defendant 11, appeared and contested the suit. three points were urged by him before the subordinate judge, one of them being that the claim of the added plaintiffs the 13 annas hissya, for the years 1336 and 1337 was barred by time. the subordinate judge by his judgment dated 30th july 1936 overruled the said objection and also another objection which it is not necessary for me to state and accepted the third which related to the amount of cesses recoverable. the plaintiffs and the added plaintiffs have not preferred any memorandum of.....
Judgment:

M.C. Ghose, J.

1. This is an appeal by one of the defendants in a suit for rent. The 3 annas odd cosharer landlords instituted a suit on 16th April 1935 claiming rent from Asar 1338 to end of 1341 B. S. The suit was instituted under Section 148-A, Ben. Ten. Act, and according to that section, a notice was sent to the respondents who are 12 annas odd co-sharer landlords. But before that suit, the respondents 12 annas odd co-sharer landlords whose estate was under the Court of Wards had through their manager requisitioned to the Certificate Officer for a certificate on 18th April 1933 claiming rent for 1336 to 1339 B. S. The Deputy Collector filed the certificate on 29th May 1933 and duly issued notice under Section 7, but though the certificate proceedings went on for two years, the finding of the learned Subordinate Judge is that the notice under Section 7 does not appear to have been served. When the respondents got notice of the suit filed by their co-sharers they applied to the Deputy Collector for permission to withdraw the certificate and the Deputy Collector allowed them to withdraw the certificate. Then they came under Section 148-A and joined as co-plaintiffs with the 3 annas co-sharers and claimed rent for the years 1336 to 1341 B. S. Various defences were taken by the tenants. They were rejected and the learned Subordinate Judge has decreed the suit.

2. In appeal the learned advocate Dr. Pal has urged only one point, namely that the rent and cesses for the years 1336-1337 B. S. are barred by limitation and ought not to be allowed to the plaintiff respondents. The learned Subordinate Judge has thought that as the respondents proceeded with diligence in the certificate case in the Deputy Collector's Court the period during which they prosecuted that proceeding should be excluded under Section 14, Lim. Act. Upon hearing the learned advocate on both sides, it is clear that Section 14, Lim. Act, has no application to the facts of this case. That section only applies when the Court where the proceeding is prosecuted is from defect of jurisdiction or other cause of a like nature unable to entertain it. Now, in this case when the proceeding, namely the certificate, was instituted in April 1933, the certificate officer had full jurisdiction to entertain the certificate. Having lawfully entertained the certificate, he could not lose his jurisdiction merely because the co-sharer landlords instituted the suit two years later. The proceeding lawfully instituted does not become defective even if the law upon which it is based is altered after the institution of the suit unless the law specifically has given the retrospective effect. Now, in this case, the plaintiffs, respondents were fully entitled to carry on with the certificate of 1933 in spite of the suit by their co-sharers in 1935. The withdrawal by them of the certificate was an entirely voluntary action on their part and by such action they have lost the rents and cesses of 1336-1337 under the law of limitation. Dr. Basak, the learned advocate for the respondents did not seriously defend, the decree of the learned Subordinate Judge in this respect. He prayed that the plaintiff-respondents may be permitted to revive the certificate of 1933 in the Court of the Certificate Officer so as to claim the rents and cesses for two years 1336-1337. As to this prayer, we have nothing to say. The party may apply to the Certificate Officer when the matter will be dealt with by him.

R.C. Mitter, J.

3. The question in controversy in this appeal, though of first impression, is a short one. It is whether the claim for rent and cesses due to the share of the added plaintiffs for the years 1336 and 1337 is barred by limitation. Touzi No. 216 of the Khulna Collectorate belongs to two sets of proprietors, Mrin-tunjay Roy Choudhury and others and Barada Prosad Roy Choudhury and others, the former set of proprietors having 3 as. 4 pies share in the same and the latter set the remaining 12 as. 8 pies. For the purpose of convenience, I will hereafter call the first set of proprietors as three annas hissya and the second set thirteen annas hissya. Both the hissyas were under the management of the Court of Wards at all material times and are still under its management. Under both hissya is a ganti tenure named Bakshi Muhamed Mia held by the principal defendants at an annual rent of Rs. 1339-2.2, of which Rs. 256-5-1 is payable to the 3 annas hissya and Rs. 1082-13.1 to the 13 annas hissya, and there is separate collection.

4. The thirteen annas hissya, represented by the Manager of the Court of Wards made on 18th April 1933 a requisition under Section 5, Bengal Public Demands Recovery Act (3 of 1913) to the Certificate Officer for a certificate for the arrears of rent and cesses of the said ganti tenure due in their share for the years 1336 to 1339 B.S. The certificate officer on being satisfied that the demand was recoverable signed a certificate for the amount claimed and ' filed it in his office on 29th May 1933 in accordance with the provisions of Section 6 of the said Act, and directed under Section 7 notice to issue on the certificate debtors. It appears that there was delay in serving the said notice on the certificate debtors. While the certificate proceedings were pending, the three annas hissya, represented by the Manager of the Court of Wards filed on 16th April 1935 a suit in the Second Court of the Munsif at Bagerhat {Bent Suit No. 1592 of 1935) for recovery of their share of rent and cesses for the said ganti tenure from the Asar Kist of 1338 to the Chait Kist 1341. The said suit was framed under Section 148-A, Ben. Ten. Act, that is, with the 13 annas hissya represented by the Manager of the Court of Wards as pro forma defendants and with a prayer that if they wished to become co-plaintiffs for recovery of their share of the rent and cesses if due to them, they may be allowed to do so and to include their claim in the plaint on payment of additional court-fees. The claim in the suit was for the rent and cesses due to the share of the three annas hissya for the said years and for damages and was laid at Rupees 1708-1-0. It was accordingly instituted in the Court of the Munsif whose pecuniary jurisdiction was limited to Rs. 2000. At the date when this suit was filed the claim for arrears of rent and cesses up to the year 1337 would be barred by limitation.

5. On the special summons as provided for in Section 148-A, Sub-section (2), Ben. Ten. Act having been served on the Manager of the Court of Wards of the 13 annas hissya the said Manager as representing the 13 annas hissya made an application on 19th August 1935 to the Munsif for being made co-plaintiff. The claim of the 13 annas hissya was stated in the said application to be Rupees 9994-2.10 being the arrears of rent and cesses due in their share for the years 1336 to 1341 together with interest. At the date of this application the proceedings under the Public Demands Recovery Act for the recovery of their share of rent and cesses for the year 1336 to 1339 started by them on 18th April 1933 were still pending. The Munsif by his order dated 6th September 1935 granted the said application with the result that the 13 annas hissya became co-plaintiffs with their claim for Rs. 9994.2.10 for the arrears for the said years (1336 to 1341) and the value of the subject-matter thus raised having exceeded the pecuniary jurisdiction of the Munsif he returned the plaint for being presented to the proper Court. It was accordingly presented to the Court of the Subordinate Judge of Khulna on 14th September 1935 and was registered as Rent Suit No. 40 of 1935 of that Court. After this, the 13 annas hissya withdrew the certificate proceedings.

6. Of the tenant defendants only one, namely defendant 11, appeared and contested the suit. Three points were urged by him before the Subordinate Judge, one of them being that the claim of the added plaintiffs the 13 annas hissya, for the years 1336 and 1337 was barred by time. The Subordinate Judge by his judgment dated 30th July 1936 overruled the said objection and also another objection which it is not necessary for me to state and accepted the third which related to the amount of cesses recoverable. The plaintiffs and the added plaintiffs have not preferred any memorandum of appeal or cross objections but defendant 11 has preferred this appeal and the scope of the appeal is limited in the memorandum of appeal to the claim of the 13 annas hissya for the rent and cesses for the years 1336 and 1337. His learned advocate, Dr. Pal, has urged only one point in support of the appeal, namely that the said claim is barred by time. This point was also urged before the learned Subordinate Judge and, as I have already stated, was overruled by him. The claim for the years 1336 and 1337 B. S. was prima facie barred by time at the date when the plaint was presented in the Second Court of the Munsif at Bagerhat but the learned Subordinate Judge held that Section 14, Lim. Act has saved the said claim from the effect of time. The reasons given by him are (1) that the institution of the suit for rent and cesses by the three annas hissya in the Second Court of the Munsif at Bagerhat (Rent Suit No. 1592 of 1935) prevented the 13 annas hissya from proceeding further with the certificate proceedings, and so this was a cause akin to defect of jurisdiction and (2) that the certificate proceedings had been prosecuted with due diligence. This last mentioned finding of fact has not been challenged before us by Dr. Pal. The only point therefore for us to consider is whether the first reason given by the learned Subordinate Judge is a sound one. The Subordinate Judge relied upon sub-section 9 of Section 148-A, Ben. Ten. Act, which is as follows:

When a suit has been instituted under the pro visions of Sub-section (1), no co-sharer landlord, who has been made a party defendant thereto and duly served with summons issued under Sub-section (2), shall be entitled to recover, save as co-plaintiff in that suit, any rent in respect of the tenure or holding for the period in suit or for any period previous thereto.

7. The question narrows down to this, namely whether this sub-section bars recovery by suit only or bars recovery by certificate proceedings also. It may be taken as established that Section 14, Lim. Act being a rule for the computation of the period of limitation applies to suits for recovery of arrears of rent of agricultural land, although the period of limitation for such suits is prescribed in the Bengal Tenancy Act: Sati Prosad Garga v. Gobinda Chandra : AIR1929Cal325 . But the question before us is whether the facts of the case which we have before us attract the operation of that section. The proceedings started by the 13 annas hissya on 18th April 1933 under the Public Demands Recovery Act were in order at that time, and the Certificate Officer had jurisdiction to sign and file in his office the certificate as he did, on 29th May 1933. The signing and filing of a certificate by the Certificate Officer corresponds in effect to the passing of a decree of a Civil Court. After this event, the Public Demands Recovery Act provides for the machinery for setting aside or modifying at the instance of the certificate debtor the certificate so filed. There are two modes indicated in the Act itself, one being by means of a petition presented within a certain time before the Certificate Officer who signed and filed the same or before the Certificate Officer who was executing the same. This is the mode indicated in Sections 9 and 10 of the Act. The other mode for cancellation or modification of a certificate so signed and filed is by means of a suit in the Civil Court filed in accordance with and subject to the limitations defined in Part 4 of the Act. But so long as the certificate signed and filed in the office of the Certificate Officer is not cancelled or modified, it has, speaking by way of analogy, the force and effect of a decree and can be executed in accordance with the provisions contained in Part 3 of the Act, which is a complete Code in itself. As long as the certificate stands, the right of the certificate holder to enforce it by execution in accordance with the provisions of the Public Demands Recovery Act cannot be interrupted or suspended unless by an injunction from a competent Court, or by a stay order from a competent authority. These are, in my judgment, the general principles and it is for us to see if these principles are in any way affected, curtailed or controlled by the provisions of the Bengal Tenancy Act. The only provision in the-last mentioned Act, which is said to have this effect is Sub-section 9 of Section 148-A. That subsection only was referred to by the learned Subordinate Judge and also by Dr. Basak, the learned Senior Government Pleader, who appears for the respondent. In my judgment, Section 148.A, Sub-section 9 has not the effect contended for by Dr. Basak.

8. Section 148.A occurs in Ch. 13 of the Act. That chapter is headed 'Judicial Procedure' and deals with suits filed in Civili Courts, and applications to such Court;, only. Ch. 13-A is headed 'Summary Procedure for recovery of rent under the Public Demands Recovery Act.' It lays down that in certain cases a landlord can be. invested with the power to recover rent, under the procedure of the Public Demands Recovery Act and the procedure for the: exercise of these powers. Sub-section 9 of Section 14 8-A no doubt does not in express-terms bar the recovery by suit only of the cosharer landlord's dues, when he had not joined as co-plaintiff in his cosharers' suit'. for rent, but that provision, occurring, as-it does, in the chapter of the Bengal Tenancy Act which deals with suits and proceedings in Civil Courts, must by necessary implication be confined to recovery by suits only. The words 'no cosharer landlord . . . shall be entitled to recover' used in that sub-section must on proper construction run as follows 'no cosharer landlord shall be entitled to recover by proceedings taken in Civil Court, i.e. but suit. ' Any other construction would not only lead to manifestly unreasonable results but also to direct and irreconcilable conflict between the said sub-section and other provisions of the Bengal Tenancy Act itself. It is quite-clear from the provisions of 8.148-A, that. a later suit instituted by a co-sharer landlord for recovery of rent for the same or for a previous period is barred by an earlier suit instituted by his co-sharer and not. vice versa. But if a plain meaning be given, to the words of Sub-section 9 of Section 148-A as it stands, i.e. if the words 'shall be entitled to recover ' be not controlled in the manner I have indicated above, an earlier proceeding for recovery of arrears of rent started by a co-sharer landlord, under the Public Demands Recovery Act would be barred by a later suit started by his co-sharer for recovery of rent due to his share for the same or it may be for subsequent period (the type of a case we have before us) which would be manifestly unreason able and unjust.

9. As I have already stated above, the construction contended for by Dr. Basak would also lead to a conflict between that subsection and other provisions of the Bengal Tenancy Act. To make my point clear, I will take the ease where there are two landlords A and B, of whom A only has been given the power to recover rent under the provisions of the Public Demands Recovery Act under the provisions of Sub-section (1) of Section 158-A. B's share of the rent for the year 1930 has been paid by the tenant amicably within that year but A was left unpaid. In the year 1931, A takes proceedings under the Public Demands Recovery Act for recovery of his share of the rent due for the year 1930. On his requisition the certificate is signed by the Certificate Officer and filed in his office, say towards the last part of the year 1931. In the year 1932, B files a suit in the Civil Court for recovery of his share of rent for the preceding year, namely for 1931, and he frames his suit under Section 148-A. On the reasons given by the Subordinate Judge for applying Section 14, Lim. Act, the certificate proceedings started by A in 1931 would automatically stop and A would not be able to proceed further with those proceedings as soon as the special summons issued in B's suit of 1932 under Sub-section 2 of Section 148-A is served on him. But Section 158-A, Sub-section 8 compels him (A) however to proceed under the provisions of the Public Demands Recovery Act, for, a cosharer landlord by becoming a co-plaintiff under the provisions of Section 148-A in substance institutes a suit in the Civil Court for recovery of his dues. This leads to a clear conflict and the conflict can only be avoided if Sub-section 9 of Section 148-A be limited to recovery by suits. The intention of the Legislature is further made dear by the saving in Clause (b) of Section 195, Ben. Ten. Act, which runs as follows:

Nothing in this Act shall affect any enactment regulating the procedure for the realizations of rents in estate belonging to the Government or under the management of the Court of Wards or of revenue authorities.

10. Rent due to these persons are public-demands according to the provisions of Schedule 1, Public Demands Recovery Act and are to be recovered under the said Act. I; hold, for the reasons given above, that Sub-section 9 of Section 148. A, Ben. Ten. Act could not in law have interrupted the normal course of the certificate proceedings started by the 13 annas hissya and accordingly Section 14, Lim. Act, cannot be invoked by them in. the case we have before us to extend the-period of limitation for their claim for the years 1336 and 1337. I would accordingly allow the appeal and set aside the decree against the tenant defendants so far as it relates to the arrears of rent and cesses for the years 1336 and 1337. This judgment of mine will not be taken to affect the added plaintiffs, if they are advised to re-open the certificate proceedings in respect-of their claim for arrears for 1336 and 1337,, should they be advised to do so. With merits of such an application for renewal if made, I do not express any opinion. As the-appeal succeeds, the appellant will have against the added plaintiffs costs of the lower Court in proportion. The parties to bear costs of this Court.


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