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Judgment
Maclean, C.J.—I think we can dispose of these appeals considering the very full arguments which have been submitted to us by both sides. The real point we have to decide, lies in a somewhat narrow compass and is whether or not the present proceedings are a suit within the meaning of sec. 143 of the Bengal Tenancy Act. The facts are as follows:--
There were certain proceedings taken under sec. 103 of the Bengal Tenancy Act, the practical object of which, as I understand them, was to have a fair and equitable rate of rent in respect of certain premises fixed. It was a question admittedly between landlord and tenant. The matter came before the Settlement Officer at Baraset, who, on the 21st August 1894, decided, in effect, that the rent was not enhanceable. There was an appeal from that decision to Mr. Pratt, the Special Judge, under the Act, and he, in the first instance, confirmed this decision of the Settlement Officer and dismissed the appeal. This was on the 30th of May 1895. The Plaintiff subsequently applied for a review of the judgment of Mr. Pratt, and on the 22nd of August 1895 that learned Judge heard the review, and without admitting any fresh evidence, but upon the old evidence, arrived at the conclusion that he had on the former occasion come to a wrong decision in the matter, and he practically reversed his previous judgment and held that the rent was enhanceable. Whether the present Appellants did or did not appear on that occasion before Mr. Pratt is, perhaps, not very clear, at any rate, they had notice of the application, and might have appeared and raised the point that they now raise, but they did not do so. The present appeal is then presented and the main contention of the Appellant is that Mr. Pratt had no jurisdiction to review the previous judgment he had delivered; that turns upon whether the present proceedings are a suit within the meaning of the Bengal Tenancy Act. This point was not taken when the matter was before Mr. Pratt, it is taken for the first time in this Court, but in the view I take of the real question on this appeal, I do not propose to express any opinion as to whether or not the point can now be raised, nor to express any opinion as to whether this appeal is maintainable having regard to the language of sec. 584, C.P.C.
Both these points are, to my thinking, of no practical importance, as in my opinion the Appellant fails on the real merits of his appeal. If these proceedings be a suit within the meaning of the Bengal Tenancy Act, then the provisions of the CPC would admittedly apply, and Mr. Pratt would have had the power of doing that which he did, viz., reviewing his previous decision. Is this proceeding then a suit within the meaning of that Act? The documents themselves in the proceedings are such as are usual in a suit. In the paper-book there is a note "Date of institution of suit." There is a plaint, a written statement of the defences which indicate that it has been treated as a suit and one to which the CPC would apply as if it were an ordinary suit.
The sections of the Bengal Tenancy Act, which bear upon the matter, are these: but, before I refer to them, I ought, perhaps, to state what is the argument of the learned vakil who appears for the Appellants. His argument is that this proceeding is not a suit, but is a mere application under the Act and being a mere application under the Act, the provisions of the CPC do not apply to it. That argument is based, to a great extent, upon the terms of secs. 143 and 144 of the Act in question, and also of secs. 107 and 108. Sec. 143 of the Act is in these terms, "the High Court may, from time to time with the approval of the Governor-General in Council, make rules consistent with this Act, declaring that any portions of the CPC shall not apply to suits between landlord and tenant as such, or to any special classes of such suits, or shall apply to them subject to modifications specified in the Rules.
If we stop there, it is obvious that the High Court may, with the approval mentioned in that section, make rules, the effect of which might be to limit the operation of the CPC to a certain class of suits. Then it goes on, "subject to any rules so made, and subject also to the other provisions of this Act, the CPC shall apply to all such suits." In sec. 144, there is, no doubt, a distinction drawn between the term suit, in the first part of that section, and the term application, in the second part of that section. But there is another section in the Act which to my mind, materially bears upon the question we have to decide, and that is sec. 189. Sec. 189 says that "the Local Government may from time to time by notification in the Official Gazette, make rules consistent with the Act (1) to regulate the procedure to be followed by Revenue Officers in the discharge of any duty imposed upon them by or under this Act. and may by such rules confer upon any such officer any power exercised by a Civil Court in the trial of suits," and other powers.
What has happened is this:--In pursuance of that section, the Local Government has made rules, and there are certain rules which apply to cases of such a class as are now before the Court and Rules 27 and 32 of those Rules so apply. Rule 27 says: "If within the period fixed and notified under Rule 16 the landlord applies for a settlement of a far rent (which was the case here), he shall be considered as Plaintiff and the tenant as Defendant, and the proceeding shall be dealt with as a suit under the Act." Rule 32 is to the same effect. The legislature then seems to have told us that if a landlord applies for a settlement of a fair rent, his proceeding shall be dealt with as if it were a suit under the Act. If, then, it is to be dealt with qua procedure, as a suit under the Act, it is a suit within the meaning of sec. 143, and the CPC would apply, and if so, Mr. Pratt would have power to review his judgment. If the CPC does not apply, what procedure is to apply? Under what procedure is that which is to be dealt with as a suit to proceed ? It is urged that we are not to take this extremely reasonable view because sec. 144 shows a distinction between applications and suits, but as the rules say this is qua procedure, to be dealt with as a suit, I fail to appreciate any real force in the argument.
Then it is urged that secs. 107 and 108 of the Act are inconsistent with this view. It is urged that inasmuch as sec. 108 specifies a particular procedure to be followed, that is inconsistent with the procedure to be followed being that used in the Code of Civil Procedure. I fail to see the inconsistency; it may be superfluous, but I cannot see any inconsistency between the two. These responsible for the Bengal Tenancy Act, may have thought it advisable to make it clear that an appeal was to lie, and not leave that point open in noting upon the construction of various sections of the Code. They thought it advisable to make that quite clear. In my judgment, it would be a very narrow construction to place upon this Act, and the rules framed under it, if we were to say that this proceeding is not a suit within the meaning of the Act. Were we to so hold, there would be no procedure applicable to such a proceeding. That practically disposes of the appeal.
The other point is a very small matter. It is said that under sub sec. 3 of sec. 104, the Judge in the Court below ought to have presumed, until the contrary was proved, that the existing lent was fair and equitable. I do not know how that may be or whether the Judge really did not do so, but it is pretty clear that having regard to sec. 106 the appeal will not lie to this Court on that point The appeals fail and must be dismissed with costs.
Banerjee, J.
I concur with the learned Chief Justice in thinking that this appeal ought to be dismissed with costs. It arises out of certain proceedings instituted under sec. 103 of the Bengal Tenancy Act. Upon the proceedings being instituted, the Revenue Officer found that the tenants were tenure-holders holding at fixed rates of rent, and he accordingly recorded a declaration to that effect. Upon appeal to the Special Judge, that Officer, in the first instance, held that the tenants were occupancy raiyat, but on the question of fixity of rent he confirmed the decision of the first Court. But upon an application for review of judgment being made, he granted that application, modified his former decision, and came to the conclusion that the Defendants were occupancy raiyats holding at a rent that was enhanceable, and he directed that the rent should be assessed at a certain rate per bigha.
Against this last mentioned decision the present appeal has been preferred, and it is contended on behalf of the Appellants that the decision of the Court below is wrong in law, first, because the learned Special Judge had no power to review his former judgment; and secondly, because he was wrong in enhancing the rent without assigning any definite reasons, when, under sub-sec. 3 of sec. 104 of the Bengal Tenancy Act, he was bound to presume, until the contrary was proved, that the existing rent was fair and equitable.
Before dealing with the first of those two grounds, it becomes necessary to consider two questions raised by the learned counsel for the Respondents, namely, first, whether it is open to the Appellants to raise the first contention when they did not take any objection in the Court below as to its not having any jurisdiction to entertain the application for review of judgment; and secondly, whether the ground upon which we are asked to interfere is a ground that comes within the scope of sec. 584 of the CPC which governs second appeals.
As to the first question, I do not think that the mere fact of the Appellants not having objected in the Court below to the lower Court''s entertaining the application for review of judgment, precludes them from raising the objection now before us if it is a valid objection. In this view I am supported by the decision of their Lordships of the Privy Council in the case of Meenakshi Naidoo v. Subramaniya Sastri L.R. 14 I.A. 160. It was there held by their Lordships that when there is an inherent incompetency in the Court below to deal with the question before it, no consent could have conferred upon the Court below that jurisdiction which it did not possess. Here there was no consent, there was merely an absence of objection. Assuming that the contention of the Appellants is right, that the lower Appellate Court had no power to grant the application for review, the mere fact of their not having raised that point in the lower Court ought not, in my opinion, to prevent them from raising it now.
Then, as to the second question, I do not think that the ground raised on behalf of the Appellants is outside the scope of sec. 584 of the Code. A second appeal is allowed by that section on this, amongst other grounds, namely, that the decision is contrary to some specified law or usage having the force of law; and "specified" as explained by the Judicial Committee in the case of Durga Chowdhurani v. Jewahir Singh ILR 18 Cal. 23 means specified in the memorandum of appeal. The decision that is appealed against in this case, is the decision of the 22nd August 1895. It is one and the same decision that holds that the application for review ought to be admitted, and hold, in modification of the former judgment, that the Defendants ought to be recorded as raiyats with right of occupancy holding at enhanceable rates. The correctness of that decision is called in question on the ground of its being contrary to law, that is, contrary to law for this reason that the decision, in so far as it grants the application for review, is in contravention of the law regulating the procedure on this subject, and is in excess of the power of the Court.
That being so, the two preliminary questions raised on behalf of the Respondents ought, in my opinion, to be decided in favour of the Appellants.
It becomes necessary, then, to consider the first ground of appeal on its merits. The contention of the Appellants is that the Code of Civil Procedure, subject to certain modifications, applies only to suits between landlord and tenant under the provisions of sec. 143 of the Bengal Tenancy Act; that proceedings under sec. 103 of that Act are not suits, but are initiated by applications; and that a distinction is made between suits and applications in the Act, as will appear from sec. 144. It is further contended that secs. 107 and 108, which make the provisions of the CPC applicable to proceedings under Chapter X of the Act such as the one out of which this appeal has arisen, make them applicable only to a limited extent, that is, as regards the trial in the first Court, the appeal to the Special Judge, and a second appeal to this Court. And it is argued that the inference to be drawn from these several provisions of the Bengal Tenancy Act is, that the provisions of the CPC relating to review of judgment do not apply to proceedings like these.
On the other hand, it is contended in the first place, that every Court has an inherent power, unless there is any express provision of the law to the contrary, to correct its own errors by review of judgment, and in support of this contention, reference is made to certain decisions of this Court and of the Judical Committee. It is further contended that proceedings under Chapter X, at any rate, in certain cases, and the present case is one of them should be treated as suits under the Bengal Tenancy Act as provided by paras. 27 and 32 of the rules made by the Local Government under sec. 189 of the Bengal Tenancy Act.
The question has been very fully discussed on both sides; and after giving my best consideration to the arguments advanced, I am of opinion that the Appellants'' contention is not sound, and that the view contended for by the learned counsel for the Respondents that proceedings like these should be regarded as suits, is correct.
The Local Government is by section 189 of the Act, given authority to make rules to regulate the proceedings to be held by Revenue Officers in pursuance of any duty imposed upon them under this Act. Chapter X of the Act, under which this proceeding was instituted, relates to proceedings to be conducted by Revenue Officers under this Act, and in regulating their procedure the Local Government has, under the provisions of sec. 189, made the two rules to which reference has just been made, which provide that the proceeding shall be dealt with as a suit under this Act. If, then, as regards procedure and the question before us is one of procedure, the proceeding is to be dealt with as a suit under this Act, is there any reason why the proceeding should not be treated as a suit within the meaning of sec. 143 of the Act and therefore governed by the CPC ? It was argued that if the Legislature had intended the CPC to apply to proceedings under Chapter X, the language of sec. 143, instead of being qualified as it is, would have been to the effect that the CPC shall apply to suits and proceedings between landlord and tenant under this Act. I do not think that this argument is valid. These proceedings could not have been treated as suits, and could not, so far as this ground of decision goes, have been treated as governed by the review provisions of the Code of Civil Procedure, if the Local Government had not thought it fit, in the exercise of the power vested in it by sec. 189 of the Act, to declare that they should be dealt with as suits. The Legislature, in enacting sec. 143 in the way it has done, has left it to the Local Government to say whether certain proceedings which are by the Act to be initiated by applications should be treated as suits or not. In this particular case, the Local Government has determined to say that those proceedings should be treated as suits. In the absence then of any definition of the term "suit" anywhere in the Act, I think it is only right and proper to hold that a proceeding like this comes within the description of a suit between landlord and tenant under sec. 143 of the Act.
I may add that it would have been somewhat anomalous if it had been otherwise; for, then we should have had the CPC governing the proceedings down to final judgment in the first Court, and the same CPC governing the case so far as the first appeal and also the second appeal were concerned, but not so far as an application for review of judgment went. Proceedings like these are not summary proceedings. Decisions passed in them have the force of a decree. An appeal and a second appeal are allowed against those decisions. But if no power of correcting its error by review of judgment were given to the Court, then, notwithstanding the provisions as to appeal, grave and irremediable injustice might sometimes result. I think, therefore, that it is consistent with reason and justice to hold that these proceedings ought to he treated as suits within the meaning of sec. 143 of the Bengal Tenancy Act; and if they are to be so treated, the CPC applies to them, and there can be no objection to the Judge entertaining an application for review. As to the second point, it is enough to say that no second appeal is allowed by sec. 108 of the Bengal Tenancy Act upon a point like this. For sub-sec. 3 of sec. 108 of the Act allows an appeal to this Court from the decision of a Special Judge only in cases coming under sec. 106; and this last-mentioned section relates only to disputes arising as to the correctness of any entry, not being an entry of a rent settled under Chapter X, and evidently the second objection relates to an entry of the rent so settled in this case.