Madan Mohan Prasad Singh vs Mt. Baso Kuer and Others

Ray, J.—The plaintiff-landlord is the appellant and the appeals arise out of two suits for recovery of rents. In the one the plaintiff claimed rent at the rate of Rs. 83-9-18 dams and in the other he claimed at the rate of Rs. 93-4-0. The suit was framed in accordance with the provisions of Section 148A, Bihar Tenancy Act, being co-sharer landlord as the plaintiff is. He impleaded the other co-sharers as parties defendants. The plaintiff claimed for an amount in proportion to his share in the proprietary interest, out of the rents due at the rates mentioned above.

The tenants defendants pleaded that the rents of the holding had been reduced in a rent reduction proceeding. According to them, the reduced rent in one ease was Rs. 51-9-0 in the place of Rs. 83-9-18 dams and in the other case it was Rs. 81-10-0 in the place of Rs. 93-4-0. In the first mentioned case the reductions were under two different clauses of Section 112A, namely, Section 112A, Sub-section (1), Clause (d) and Section 112A, Sub-section (1), Clause (c-II) and in the other case the reduction was u/s 112A(i)(c-II).

The learned trial Court gave the plaintiff in each case a decree at the rates claimed and refused to give effect to the reductions as pleaded by the defence on the ground that the Commissioner had cancelled the reductions and in complisnce with the Commissioner''s decision the rent reduction schedule as a whole had been can-celled.

The defendants took the matter up in appeal but failed to implead the co-sharer landlords defendants as respondents. The learned lower appellate Court gave effect to the reductions, holding that according to the settled view of this Court, the Collector''s order reducing the rents as claimed by the defendants, passed in appeal, was final and the Commissioner had no1 jurisdiction to interfere. As against this decision, the plain tiff-landlord has preferred this second appeal. Originally in the memorandum of appeal he had impleaded the co-sharers as respondents 3 to 6, but it being pointed out in the stamp report by the office that respondents 3 to 6 were not parties in the appellate decree, they were given up.

In this state of things I had to hear the appeal, in which I briefly mention the contentions that were raised by Mr. Rajkishore Prasad, the learned Counsel for the appellants. His contention was that Collector''s order is without jurisdiction because while there was evidence on record which constituted materials for consideration, under Clause (d) of Sub-section (1) of the section, as it was later pointed out by the Commissioner in his revisional order, he said that there were not such materials. Under the circumstances, he having acted without jurisdiction, it was quite open to the Commissioner, having power of superintendence, to force him to exercise the jurisdiction.

In order to make the position clear, it is just necessary to state what are the requisites under the clause which give the Rent Reduction Officer jurisdiction to reduce the rent under it. The clause requires that there must have been a fall "in the average local prices of staple food crops during the currency of the present rent," in order to confer jurisdiction on the Rent Reduction Officer to reduce the rent. The primary Court had held that the rent as claimed by the plaintiff had been current from before the record of rights, and, therefore, there had been no fall in the prices during the currency of the present rent. From what time the present rent had been current was evidenced by "the rent attestation notes" relied upon by the trial Court and these rent attestation notes were completely ignored by the Collector who said that they were not available before him. The Commissioner points out that they were there in the record of certain connected appeals which were before him. It was further argued that the rent reduction schedule having been cancelled either rightly or wrongly by the revenue Court having jurisdiction over the matter, though it may be that it was done on a wrong interpretation of the Commissioner''s order the order of cancellation must be held binding against the parties. Lastly, it was argued that the entire body of landlords had not been impleaded as parties in the rent reduction proceeding, and, therefore, the entire proceeding and any decision arrived at by any Court in such a proceeding must be taken to be without jurisdiction. For this he relies upon a case of this Court Mohammad Yunus Vs. Bishunath Singh, . Quite apart from this decision, from common sense point of view it would be absurd to think that the rent of any holding should be reduced in a proceeding started against some of the co-sharer-land-lords resulting in the anomalous, rather absurd, position that some landlords realise rent at reduced rate while others will continue to realise at the original (higher) rate. If it be a fact that, the proceeding was not prosecuted against the entire body of landlords, the proceeding would be held to be void and will not be binding even against the co-sharer landlords who have been impleaded. It is the fundamental principle of law that no order or decision of any tribunal is binding against any party who has not been given an opportunity of being represented in the proceeding in order to have his case adjudicated by the Court.

In proof of the correctness of his last ground he filed certain public documents including certified copies of the D register and a petition for additional evidence. But in consideration of the view that I am taking of this appeal, the points need not be considered at present.

The appeal before the learned lower appellate Court preferred by the defendants was incompetent in the absence of the other co-sharer-landlords who had been impleaded as defendants in pursuance of the provisions u/s 148A. Their presence could not be ignored on the ground that no relief was sought against them by the plaintiff. The whole object of the particular frame of the suit, enjoined by the provisions of Section 148A, is that the question as to what is the rent payable and what is the rent due will be considered finally and once for all as between the landlords as a whole and the tenants. Under the circumstances, the decision passed by the trial Court holding that the rent payable was at the rate claimed in the plaint, was not only for the benefit of the plaintiff but also for the benefit of the other co-sharer-landlords. When against such a decision an appeal is preferred and the co-sharer-landlords are omitted from being impleaded as party respondents, it will be quite open for them to urge successfully in any suit or proceeding for recovery of their share of rent that the matter, that is, what is the rent payable for the holding is barred by res judicata by the decision of the trial Court even though they were defendants along with the tenants. In fact the issue tried in the case was an issue not only as between the tenants, but between the one set of defendants, the tenants and the co-sharers, the other set of defendants.

Under the circumstances, in order to avoid two inconsistent decrees in the same suit, it is not permissible that an appeal should be maintained against some of the necessary parties while the decree appealed against would be final against the other. In this view this appeal can be allowed and the decree of the lower appellate Court vacated and that of the trisl Court restored, but as such a course may be rather very hard for the tenant-defendants and that it may be due to wrong advice in the lower appellate Court, I propose to send the case back directing that the appellants would implead the co-sharer landlords as party-respondents. After they are effectively impleaded and due notices of the appeal are served upon them, the appeal will be reheard by the lower appellate Court. I do not propose to give him any guidasce at this stage as to the correctness of the contentions raised except what I have said above. The petition for additional evidence will have to be renewed before him. I think this course will be more appropriate because in any view the tenants in order to get their defence accepted must have to satisfy the Court that the defendant-landlords were bound by the rent reduction proceeding.

I have forgotten to mention that Mr. Rajkishore Prasad brought to my notice in course of his arguments a case of this Court, Tahal Mahton and Others Vs. Lachoo Mahton and Others, and he relied upon a passage appearing at p. 88 and urged that it was quite open to the civil Court to come to its own decision as to whether the Collector did or did not act without jurisdiction; in other words, he means to contend that for the purpose of an appeal or revision from it a Collector''s decision may be final but it has no finality if it is without jurisdiction when questioned in any proceeding in the civil Court. The passage on which he relies is:

On the other hand the learned Advocate-General who appears for the respondents contended firstly, that the orders of the Commissioner and the Beard of Revenue were not without jurisdiction and that the order of the Collector having been vacated, the civil Court had to come to its own finding on the point on which it was invited to give its decision; and, secondly, that even if the order of the Collector is assumed to be a good order, it was open to the Civil Court to decide that the Collector had acted without jurisdiction in reducing the rent of the two holdings inasmuch as the Bent Reduction Officer bad no jurisdiction to reduce the rent of holdings which were not held on cash rent. For the latter proposition the learned Advocate-General relied on.... Now I do not suggest for a moment that the second point raised by the learned Advocate-General is not a substantial one but I do not propose to discuss it because in my judgment his first point is sufficient to dispose of these appeals.

In giving effect to the first point, the Court held that if the Commissioner or the Beard of Revenue reversed an order of the Collector on the ground of lack of jurisdiction, the Civil Court may give effect to it. This question has to be considered by the learned lower appellate Court while considering the validity of the Commissioner''s order, that is to say, to try and find out whether the Commissioner''s order was on a point where the Collector had acted without jurisdiction in refusing to consider the existence or otherwise of the very circumstances which only could give the Collector jurisdiction, to proceed to reduce the rent.

In the result, the appeal is allowed and the judgment of the lower appellate Court is set aside and the case is remitted back to him for disposal according to lay after following the directions given above. Costs will abide the result.