Chaudhuri Shyam Narain Singh vs Siwcharan Sahu

Macaherson C.J.

The rent-suit out of which this appeal has arisen, was instituted so long ago as 1913. The landlord of Sildilia in Palamau brought a collective suit for rent against four sets of tenants. The present respondents, who constituted one set, were defendants Nos. 2 and 3 and both were sued as majors. On the 11th December 1913 defendant No. 2 appeared and admitted the claim against them, which was for a sum of Rs. 33-0-3 as arrears of rent for 1320 F in respect of an area of 5 bighas 1 katha nagdi uttaktar, plus damages at 25 per cent. or a total of Rs. 41 odd. On the 6th Marsh 1914 the suit was dismissed against one set of defendants and decreed on admission against the other three sets, including the defendants Nos. 2 and 3.

On the 31st March 1914 the mother of defendant No. 3 applied on his behalf for revival of the suit, on the grounds that the defendant No. 3 was a minor though be had been sued as a major, that he had not appeared in the suit, still less admitted the claim, that in fact the holding was one of 5 bighas 15 kathas at a nagdi jama of Rs. 6, including cesses, and that defendant No. 2 had no concern with the holding and no rent was due. On June 24th, 1914, the ex parte decree was set aside u/s 227 of the Chota Nagpur Tenancy Act, 1908, and the suit was triad and eventually decreed for Rs. 0-10-6, being the difference between Rs. 6, the rent alleged by the contesting defendant, and Rs. 5-5-6 shown in the plaintiff''s papers as realised in the year in suit.

The decree of the Deputy Collector was upheld by the Deputy Commissioner on appeal but set aside on revision by the Commissioner, who held that as the aggregate value of the suit as instituted was Rs. 240, the appeal lay u/s 218, read with Section 224 of that Act, to the Judicial Commissioner, although, as has been said, the claim against the set of defendants consisting of defendants Nos. 2 and 3 was only Rs. 41. The memorandum of appeal was thereupon presented to the Judicial Commissioner, who dismissed the appeal on the ground of limitation. The High Court set aside this order and eventually on the 1st February 1919 the Judicial Commissioner, agreeing with the finding of the Deputy Collector, dismissed the appeal on the merits.

On second appeal the case was heard by a Single Judge of this Court, who referred it to a Division Bench on account of the importance of the questions involved.

The first of these questions is the preliminary objection taken on behalf of the respondent that no appeal lay to the Judicial Commissioner. It is contended, in the first place, that as the value of the claim against defendants Nos. 2 and 3 is only Rs. 41, the appeal under the provisions of Section 218 lies to the Deputy Commissioner, and secondly, that even if the amount sued for" in the original suit be admitted to be Rs. 240, for the purposes of determining the forum of appeal the "amount sued for" in the suit after the revival in respect of the defendants Nos. 2 and 3 only should be considered to be Rs. 41. In my opinion neither contention is well founded and the objection must be repelled.

The position under Bengal Act I of 1879 was that it was incumbent on the landlord to institute a separate suit in respect of each tenant, and the forum of appeal in the case of a suit tried by a Deputy Collector was the Deputy Commissioner or the Judicial Commissioner according as "the amount sued for" did not or did exceed Rs. 100. The only substantial change in this respect made by the Chota Nagpur Tenancy Act, 1908, was the introduction in Section 140 of a provision permitting a suit to "be instituted before...the Deputy Commissioner collectively by or against any member of tenants holding land in the same village." Here the important consideration, so far as forum of appeal is concerned, is that a single suit is provided for. It is patent that in such a suit the "amount sued for" is the aggregate of the claims against the individual tenants sued collectively, and whether the contingency was or was not contemplated by the Legislature, the only feasible interpretation of the enactment, as it stands, is, as the Commissioner of Chota Nagpur held, that in a rent suit against tenants collectively (as in a suit against an individual tenant) Section 224 applies if the amount sued for exceeds Rs. 100, and the appeal lies to the Judicial Commissioner irrespective of whether the "amount sued for" in respect of the particular tenant, who is appellent or respondent, exceeded or did not exceed Rs. 100. Accordingly though the appeal by the landlord in this instance related to a tenant from whom he only claimed Rs. 41, it lay to the Judicial Commissioner as the amounts sued for in the suit exceeded Rs. 100. The first contention therefore, fails, and as the forum of appeal in a rent suit is determined once for all at the date of institution by the amount sued for, it follows that it cannot be disturbed by a revival of the suit at a later stage in respect of a portion only of the subject matter, since the suit as revived is still the same suit, and the second contention also cannot be sustained.

On behalf of the appellant exception is not taken to the judgment of the Judicial Commissioner, but it is sought to assail the order of the Deputy Collector u/s 227 reviving the suit at the instance of defendant No. 3. Now Section 228 provides that an order u/s 227 setting aside a judgment shall be final.

The learned Vakil accordingly is driven to contend that that order was made without jurisdiction, inasmuch as the consent judgment passed against defendant No. 3 had not been "passed againat him for default of non-appearance u/s 157." There is, however, no force in the contention. Even if it was in law a nullity, the judgment came also within the terms of Section 227. Though ostensibly by consent or inter partes, it had in fact been passed against him ex parts u/s 157. He had not appeared at all in the suit either personally or through defendant No. 2 as agent even as major, still less as minor, and he had not consented to the decree. To come within Section 157, it is cot necessary that a decree should appear on the face of it to have been passed ex parte; it is sufficient if it is shown to have actually been passed ex parte, as is the present instance. This contention fails, and as no other point is pressed, I would dismiss this appeal with costs to defendant No. 3 throughout the litigation.

Coutts, J.

I agree.