Patna High Court
Sundar Krishta Sarkar vs Sm. Malti Manjari And Ors. on 13 April, 1951
Equivalent citations: AIR1951PAT181, AIR 1951 PATNA 181, ILR 30 PAT 847
JUDGMENT Lakshmikanta Jha, C.J.
1. This is an appeal under the Letters Patent by deft. 1 from the judgment of Shearer, J. It arises out of a suit for recovery of cash rent for the years 1350 to 1353 Fasli. The rent was claimed at the rate of Rs. 229/1/- per year. The courts below decreed the suit & on second appeal to this Court the decrees of the courts below have been affirmed.
2. The facts relevant to the point for decision are as follows: Originally the defts. were bhaoli tenants & the rent was payable wholly in kind. They applied for commutation of rent under Section 40, Bihar Tenancy Act, & Rent Commutation officer fixed the rent at Rs. 179/5/-. In the rent commutation proceedings all the landlords were impleaded & the order was passed in the presence of the 16 annas landlords. Only the plffs. who are 6 annas co-sharer landlords, appealed against the order of the Rent Commutation officer to the Collector under Section 40, Clause (6), Bihar Tenancy Act, without impleading the remaining 10 annas co-sharer landlords in the appeal. The Collector set aside the order of the Rent Commutation Officer & fixed the rent at Rs. 229/1/- by his order dated 7-2-1945. While the appeal was pending before the Collector, the tenants who are the defts, in the present suit, applied for reduction of the rent fixed by the Rent Commutation officer under Section 112A(1)(c), Bihar Tenancy Act, & the rent was reduced from Rs. 179/5 to Rs. 168/1/9. In the present suit the plff. claimed rent at the rate of Rs. 229/1- as fixed by the Collector. The defts. resisted the suit on the ground that the rent having been reduced in a proceeding under Section 112A (1) (c), Bihar Tenancy Act, the plffs. were not entitled to claim rent at the rate fixed by the Collector. The plffs. on the other hand, alleged that the order passed by the Rent Reduction Officer in the proceeding under Section 112A (1) (c) was ineffective because the foundation of his order was the order of the Rent Commutation officer which had been reversed by the Collector on appeal. They asserted that they were entitled to claim the rent at the rate fixed by the Collector. The courts below, as well as Shearer, J., accepted the plffs. contention & the suit was accordingly decreed at the rate of rent fixed by the Collector.
3. The point for our consideration is whether the order passed by the Collector fixing rent at Rs. 229/1/ is with or without jurisdiction, the defts. appeal must fail.
4. The argument of Mr. Bose, on behalf of the appellant, is that - the order of the Collector is without jurisdiction because there was violation of the statutory provision of Section 188, Bihar Tenancy Act, inasmuch as the 10 annas landlords were admittedly not impleaded as parties before the Collector. In my opinion, this argument is not sustainable. The Collector had jurisdiction to entertain the appeal under Section 40, Clause (6), Bihar Tenancy Act, even in the absence of the 10 annas co-sharer landlords, & his order cannot be characterized as one passed by him without jurisdiction.
"Jurisdiction may be defined as the power & authority conferred on a Court to pronounce the sentence of the law or to award the remedies provided by law upon a state of facts, proved or admitted, referred to the Court for decision & authorised by law to be the subject of investigation or action by that Court, & in favour of, or against, persons who present themselves, or who are brought before the Court in some manner sanctioned by law as proper & sufficient." (See Black on 'Jurisdiction', section 215).
In 'Ramranbijaya Prasad Singh V. Ramkawal', 26 Patna 748 at p. 754) it was held "By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision".
5. Section 40, Clause (1), Bihar Tenancy Act, provides:
"Where an occupancy-raiyat pays for his holding rent in kind....either the raiyat or his landlord may apply to have the rent commuted to money rent."
Section 188, which is of general application, lays down:
"Where two or more persons are joint landlords, anything which the landlord is under this Act required or authorized to do must be done either by both or all these persons acting together, or by an agent authorized to act on behalf of both or all of them."
Section 40 (1), read with Section 188, requires that all the landlords must be party to the rent commutation proceeding. In the present case the proceeding commenced at the instance of the raiyat & admittedly all the landlords were parties to the proceeding. Therefore, there was no defect of party, in so far as the proceeding before the Rent Commutation officer was concerned. His order, therefore, was with jurisdiction. Clause (5) of Section 40 requires :
"The order shall be in writing & shall state the grounds on which it is made & the time from which it is to take effect."
Clause 6 (a) of Section 40 provides:
"An appeal shall lie from an order referred to in Sub-section (5)
(i) If such order is passed by any officer other than the Collector of a district, to the Collector of the district or to any officer specially empowered by the Provincial Govt. by notification to hear such appeals."
Therefore, the Collector had jurisdiction to entertain the appeal.
6. It is contended by Mr. Bose that there was non-compliance with the provisions of Section 188, Bihar Tenancy Act, because all the landlords were not Impleaded. An examination of Section 40, Clause (6), Bihar Tenancy Act, does not show that the "landlord is under this Act required or authorised" to file an appeal. All that the section provides is that "An appeal shall lie"; in other words, the order is made appealable. It does not provide, nor is it necessary to provide, by whom the appeal may be filed. The appeal is to be preferred only by the aggrieved party; for this no specific statutory provision is necessary. Therefore, the filing of an appeal is not a thing "which the landlord is under this Act required or authorized to do." The filing of an appeal is, no more than the institution of a suit for rent, a thing required or authorized by the Act. In 'Pramada Nath v. Ramini Kanta Roy', 35 I.A. 73 at p. 78 the Privy Council held: "The filing of a suit" for rent "is not a thing which the landlord is, under the Act, required or authorized to do." The 6 annas landlords, who are the present plaintiffs, if they felt aggrieved by the order of the Rent Commutation officer, were certainly entitled to prefer an appeal, & if they did not implead the remaining 10 annas co-sharer landlords as respondents, all that might be said was that there was defect of parties. But no objection on this score was taken before the Collector at the heaving or at any other stage by the defts. who contested the appeal before him.
7. Even assuming that Section 183, Bihar Tenancy Act, is applicable & the Collector acted in violation |of the provision of the statute, such a violation would not affect the jurisdiction which is conferred upon him by Section 40 (6). The Privy Council in Umed Mal v. Chand Mal, (53 I. A. 271) held that the failure to join a necessary party is only a material irregularity in the exercise of jurisdiction & falls within Clause (c) of Section 115, C P. C. Their Lordships observed:
"The very question is whether Fatima ever conveyed the bighas to the alleged mortgagees, & it was a material irregularity to decide it in the absence of Fatima herself. Under the circumstances, the Chief Commissioner had the power to make such order in the case as he thought fit" It has been held by the Pull Bench in 'Maharaja Bahadur 'Ramranbijaya Prasad Singh v. Ram-kawal Upadhya', 26 Patna 748 that a mere violation of an imperative provision of the statute cannot affect the jurisdiction of the Court. But even if a party is not before the Court, on general principle the Court can pass an order in its favour but not against it. In 'Radha Mohan v. Shree-kishun Gir, 27 Pat 242, Meredith J., on a review of the divergent views on the point has held that "the word 'parties' in Order 41, Rule 33, is wide enough to include persons who were parties to the suit in the trial Court, but were not parties to the appeal". He has further held that "there is nothing whatever in the terms of rule 4 to suggest that the persons, who did not appeal, must be impleaded as respts. & were it necessary, one would expect words to that effect in the rule--Neither rule offends the principle that an order cannot be passed to the prejudice of a person in his absence, because the terms of each rule carefully & expressly limit its application to orders in favour of the absent person so that no question. of any objection by him being shut out can arise." Therefore, in my opinion, even though the 10 annas co-sharer landlords were not impleaded before the Collector, & even if section 188, Bihar Tenancy Act, be held applicable to a proceeding in appeal, non-compliance with its provision cannot affect the jurisdiction of the Collector.
8. Learned counsel for the appellant has strongly relied upon the case of 'Basdeonarain v. Kara Mahton, 26 Pat. 592 in support of his contention. But the decision seems to have been impliedly overruled by the Full Bench in 'Ramranbijaya Prasad Singh v. Ramkawal', 26 Pat 748. The Collector, in my opinion, was competent to pass the order even in the absence of a necessary party & his order cannot be collaterally challenged. The appeal is accordingly dismissed with costs.
Chatterji, J.
9. I agree.