The Judgment of the Court was as follows:—
B.B Ghose, J.:— These appeals arise out of as many suits for rent at an enhanced rate on several grounds stated in the plaints. The Munsif made a partial decree in favour of the landlord, the Plaintiff. On appeal by the Defendants, the Subordinate Judge has dismissed the claim for enhancement on the ground that the suit for enhancement is not maintainable under the provisions of sec. 109 of the Bengal Tenancy Act, the landlord having made applications under sec. 105 of the Act before the Revenue Officer, on the authority of the case of Srimati Abeda Khatun…Defendant, v. Majubali Choudhdry…Plaintiff, . . The learned Vakil for the Appellant argues before us that there is a difference of opinion with regard to the construction of sec. 109, and contends that the case of Srimati Abeda Khatun…Defendant, v. Majubali Choudhdry…Plaintiff, . is distinguishable from the present case and that the other cases relied on by him support his contention that such a suit is maintainable notwithstanding the provisions of sec. 109 of the Bengal Tenancy Act. Before deciding the question it seems to me that it is necessary to look into the provisions of sec. 109 of the Act in order to see whether the present suit for enhancement is maintainable. What happened in this case was that the Plaintiff presented an application under sec. 105 of the Bengal Tenancy Act before the Revenue Officer with regard to a number of holdings. Then on the 18th of September 1917, he presented a petition before the Revenue Officer to the effect that certain of the tenants whose holdings had been recorded in a number of khatians had compromised the suit but certain other tenants among whom are the present Defendants did not appear for the purpose of coming to a compromise and he prayed that permission might be granted to him to bring suits in the Civil Court against the Defendants who had not compromised and that the case might be disposed of according to the compromise entered into by the others. On this petition, the Revenue Officer made this order: “Plaintiff filed a petition for permission to withdraw cases against the Defendants of khatians Nos. 172, 196, etc. The prayer is allowed. Other Defendants have compromised. Put up on 27th September 1917, for judgment.” In the judgment, nothing further is said with regard to those Defendants who did not compromise. Now sec. 109 of the Bengal Tenancy Act runs thus:—“Subject to the provisions of sec. 109A, a Civil Court shall not entertain any application or suit concerning any matter which is or has already been the subject of an application made, suit instituted or proceedings taken under secs. 105 to 108 both inclusive.” There cannot be any doubt that this matter, which is now for decision in the Civil Court, was a matter which was the subject of an application made under sec. 105 of the Bengal Tenancy Act. The contention is that when the application under sec. 105 was withdrawn against these Defendants, the operation of sec. 109 cannot come into play, or, in other words, the contention is that, unless there has been a decision on the application by the revenue authority, it is open to the party who made the application to bring a suit in the Civil Court with regard to the same subject-matter: It seems to me that to accept such a contention would be to make an addition to the section and to read the words “subject of an application made” as if they stand for “subject of a decision,” which, in my judgment, we cannot do. Therefore, apart from authorities, it would seem that the decision of the learned Subordinate Judge is right as regards the true construction of sec. 109 of the Bengal Tenancy Act. It is contended, however, by the learned Vakil for the Appellant that a number of cases have been decided the other way and that this matter should be referred for decision to a Full Bench. The cases to which he refers are these—Cheodditti v. Tulsi, Singh , Aswini Kumar Aich v. Saroda Gharan Basu , Kamini Sundari v. Abdul Habin and Soroj Kumar Acharji v. Umed Ali Howladar . In the case of Cheodditti v. Tulsi Singh , the learned Judges, although they expressed an opinion in favour of the contention now advanced by the learned Vakil for the Appellant, said this: “Moreover, it cannot well be said that the subject-matter of the application made in 1906 and the subject-matter of the suit brought in 1909 are the same.” If the subject-matter of the two proceedings were different, then the suit was certainly maintainable and sec. 109 of the Bengal Tenancy Act would not prevent a party from bringing a suit. That case is, therefore, distinguishable from the present case and the observations made therein do not prevent us from taking a different view. The same may be said of the case of Aswini Kumar Aich v. Saroda Charan Basu . The learned Judges in that case said this: “These matters are entirely foreign to the jurisdiction of the Revenue Officer under sec. 106, his work being confined to a decision of the point whether the entry in the record-of-rights is correct or not.” Similarly, in the case of Kamini Sundari v. Abdul Habin , the learned Judges observed as follows:—“We are unable to agree with him (that is, the Subordinate Judge) in this opinion as it seems to us that the subject-matter of the suit under sec. 106 and the subject-matter of the present suit are entirely different.” The case of Soroj Kumar Acharji v. Umed Ali Howladar apparently follows the previous cases and the case of Srimati Abeda Khatun…Defendant, v. Majubali Choudhdry…Plaintiff, . Chowdhury is distinguished on the ground that, in that case, there was no permission to withdraw the suit with leave to bring a fresh suit. It may be said that in the present case also there was no such leave granted. It may be a question, as was raised in the case of Soroj Kumar Acharji v. Umed Ali Howladar , whether, even if such leave were granted, the Revenue Officer had any jurisdiction to grant leave to bring a suit in a Court of different jurisdiction. There is no provision, however, in the Bengal Tenancy Act that an application made under sec. 105 and subsequently withdrawn has this effect, that such application had never been made. It is only the legislature that can wipe out the effect of an application made by reason of its being withdrawn and we cannot supply what may possibly be an omission of the legislature in not making such a provision. With great respect, therefore, I am unable to accept the opinion expressed in some of the cases that an application made and withdrawn has the effect as if the application had never been made. There does not appear to be any binding decision to the contrary on the question involved in these cases. On the other hand, the facts in Srimati Abeda Khatun…Defendant, v. Majubali Choudhdry…Plaintiff, . Chowdhury closely resemble the facts in the cases before us. The appeals must, therefore, be dismissed with costs in those cases in which the Respondents have entered appearance.
Walmsley, J.:— I agree.
N.G
Comments