Subodh Gopal Bose vs Nilabja Barani Debi

Chakravartti, C.J.—This Rule has caused an interesting debate on two interesting questions of law.

The Petitioner, Subodh Gopal Bose, purchased touzi No. 6 of the 24-Parganas Collectorate at a revenue sale held on January 6, 1936. The sale of the touzi was for its own arrears. Having purchased it and acquired the. rights conferred by Section 37 of the Bengal Land-Revenue Sales Act, the Petitioner became desirous of evicting the opposite parties from a certain area of the land which they were occupying. He seems to have taken a good deal of time in making up his mind to take an active step, because it was not till January 5, 1948, which was exactly on the last day of the period of limitation, that he brought a suit in court. The suit appears to have proceeded at a very slow pace, because one finds that when in 1950 the Bengal Land-Revenue Sales Act was amended by West Bengal Act VII of 1950, the suit was still pending. The amending Act made certain major alterations in the revenue law of the State. By Section 4, it substituted for the whole Section 37 of the principal Act a new section which curtailed the rights of a purchaser at a revenue sale to a substantial extent and, by Section 7 it provided for the abatement of suits, proceedings and appeals of certain kinds, pending at the date of its commencement. Soon after the amending Act had come into force, the opposite parties made an application before the learned Judge for an order that the Petitioner''s suit had abated. The learned Judge, on hearing the parties, gave effect to that contention. Thereafter the Petitioner moved this Court and obtained the present Rule.

On behalf of the opposite parties, Mr. Roy took a preliminary objection that the Petitioner should have preferred an appeal and not moved this Court in revision, because the order passed by the learned Judge amounted, according to him, to a decree.

Mr. Gupta, who appears for the Petitioner, contended that the order contemplated by Section 7 of the amending Act should not be subsumed under orders and decrees passed under the Code of Civil Procedure, but should be regarded as standing by itself In his submission, an order u/s 7 was suijuris in that it was a special kind of order provided for by a special Act. I do not think I can accede to Mr. Gupta''s contention, because whether or not a determination by a court is a decree does not depend upon the statute which furnishes the reason for the determination. A court, dealing with a suit u/s 9 of the Code of Civil Procedure, either makes an order or passes a decree or it records some event which has happened. It is not possible to contend that because a particular statute enjoins a particular kind of order to be passed in certain contingencies, such an order must be treated as outside the category of decrees or orders passed by the court under the Code of Civil Procedure. Whether or not the order passed by the learned Judge amounts to a decree, must therefore be decided by reference to other considerations.

In my view, the order passed by the learned Judge cannot be said to be a decree. What it orders is that the suit has abated, which means that the court recognises the abatement and places it on record. That order does not contain any adjudication determining the rights of the parties with regard to any matter in controversy in the suit itself. It merely records a misadventure which has befallen the suit by the operation of a new law. The abatement which the order refers to is not an abatement resulting from any decision by the court itself. It is an abatement which occurred independently and of which the court has simply taken notice. Indeed, it seems to me that if the suit abated at all, it abated by the operation of Section 7 of the amending Act and the learned Judge could not conceivably have intervened in an abated suit and make a decree therein. In my view, it is quite impossible to bring the order passed in the present case under the definition of a decree, because although it conclusively terminates the suit as far as the court making it is concerned, it involves no adjudication on the rights of the parties with regard to any matter in controversy between them. I do not think it can be said that the order at least decides whether or not the suit may continue inspite of the enactment of Section 7 of the amending Act, but such determination, in my view, does not differ in any essential respect from a determination that a particular suit or appeal has abated on account of the death of the sole Plaintiff or sole Defendant or the sole Appellant. In the latter cases also, the court decides whether a death has taken place and whether the effect of the death is that no right to sue or to continue the appeal survives but such determination does not make the order passed a decree or even an appealable order. Such a determination is not a decree, because it involves no adjudication on the rights of the parties; nor is it an appealable order, because it is not mentioned among the orders enumerated in Rule 1 of Order XLIII of the Code.

Mr. Roy referred to the decision in Naimuddin Biswas v. Maniraddin Lashar (1927) 32 C.W.N. 299 and contended on the authority of that decision that even an order, recording the abatement of an appeal on account of the death of a necessary party, would be a decree. The case cited does not support Mr. Roy''s contention. What had happened in that case was that one of the Appellants had died and his heirs had not been brought on the record. The appeal was such that the right to prosecute it did not survive in the remaining Appellants alone and in those circumstances it was prayed that the defect of party might be remedied by the court taking action in favour of the heirs of the deceased Appellant under Order XLI, Rule 4 of the Code. That prayer was negatived and it was held that Order XLI, Rule 4 of the Code gave no power to the court to vary or reverse a decree in favour of a person who was dead, whose legal representatives had not been brought on the record and in respect of whom the appeal had abated. It was in the course of laying down that proposition that the learned Judges observed that an order of abatement was "virtually" a decree. They did not say that such an order was technically a decree, but what they meant was that the abatement had terminated the rights of the deceased Appellant in the same manner as a decree against him would and therefore the court could not properly nullify the effect of abatement by intervening in favour of the heirs of the deceased Appellant under Order XLI, Rule 4. It is to be noticed that the learned Judges used carefully guarded language, because all that they said was that an order of abatement was virtually a decree and not that it was a decree.

I can conceive, however, of a case where an order of abatement, formally so called, would amount to a decree. Take a case where, of the several Appellants, one dies and his heirs or legal representatives are not brought on the record within the period prescribed by law. If the right to continue the appeal does not survive in the remaining Appellants alone, the order generally made is that the whole appeal has abated. What, however, actually takes place in such cases is that the court, on finding that the rest of the Appellants are not entitled to continue the appeal in the absence of any representation of the interest of the deceased Appellant, holds that the appeal has become incompetent and therefore dismisses it. The order passed in the case cited by Mr. Roy itself illustrates that position, because the learned Judges did not merely record an order that the appeal had abated, but passed an order dismissing it on the ground that the surviving Appellants were not competent to prosecute the appeal by themselves. The true position, therefore, is that if an order of abatement merely recognises the fact that an abatement has taken place, it cannot operate as a decree, but if upon abatement in respect of one of several Plaintiffs or one of several Defendants, it is contended that the whole of the suit has abated and the court determines the question in favour of the contention, there is quite clearly an adjudication of the rights of the parties and such an order would be a decree. The present case is analogous to a case where a suit or an appeal abates on the death of the sole Defendant or the sole Respondent and because of his heirs or legal representatives not being brought on the record in time. In neither case is there any adjudication. The preliminary objection taken by Mr. Roy must, therefore, be overruled.

Turning now to the principal point involved in the Rule, it was not disputed on behalf of the opposite parties that the view of the amending Act, on which the learned Judge had proceeded, was entirely erroneous. He referred to the now-famous suit brought by this very Petitioner which resulted in the decision of the Supreme Court in the case of The State of West Bengal Vs. Subodh Gopal Bose and Others, and where it was held, in disagreement with the views of this Court that Section 7 of the amending Act was not ultra vires. Having referred to the survival of Section 7 from the assault launched against it by the Petitioner, the learned Judge proceeded to say that since Section 7 was good law, any suit brought under the old Section 37 of the Land Revenue Sales Act was liable to abate. Lest I would do him an injustice, I would prefer to quote the exact language of the learned Judge:

In view of this decision by the highest Tribunal of the land- observed the learned Judge, there can no longer be any dispute and question that Section 7 would come into play in all suits for the ejectment of any person from any land by a revenue purchaser in consequence of Section 37 of the Revenue Sales Act XI of 1859.

And again:

I am to see here if the present suit is a suit for ejectment of a person from any land in pursuance of Section 37 of Act XI of 1859 and it is necessary to confine our pointed attention to the wordings of Section 7 of the new Act.

And yet again:

So the purpose of this suit is clear beyond doubt and it is to eject the Defendants in pursuance of Section 37 of Act XI of 1859 and such a suit must be deemed to have abated with the passing of this Act of March 16, 1950.

The learned Judge seems to have completely misled himself into thinking that Section 7 of the amended Act was co-extensive with the old Section 37 of the principal Act and that Section 7 had provided that all suits brought under the old Section 37 of the principal Act, pending, at the date of the commencement of the amended Act, would automatically abate. The scope of Section 7, however, is limited. It does not hit all suits brought under the old Section 37, but only such suits as could be brought under the old section but cannot be brought under its successor. It is not that the new Section 37 has destroyed all the rights conferred by the old section. The purchaser''s right to get the estate free from all encumbrances which may have been imposed after the time of the Permanent Settlement remains unaffected even under the new Section 37. His right to avoid and annul tenures, holdings and leases, except those enumerated in the new Section 37, also remains unaffected. It is quite clear that if a suit was brought under the old Section 37 for the enforcement of any of the rights which have not been affected by the new section, Section 7 would not strike at such a suit and it would not abate. The words of Section 7 are as follows:

(1) (a) Every suit or proceeding for the ejectment of any person from any land in pursuance of Section 37 or Section 52 of the said Act, and

(b) every appeal or application for review or revision arising out of such suit or proceeding, pending at the date of commencement of this Act shall, if the suit, proceeding, appeal or application could not have been validly instituted, preferred or made, had this Act been in operation at the date of the institution, the preferring or making thereof, abate.

There is a further condition that nothing in the section would affect any decree or order in execution whereof possession of the land concerned had already been taken before the date of the commencement of the amending Act, but that proviso is not material for our present purpose. The main provision of the section hits only such suits, proceedings, appeals or applications pending at the commencement of the amending Act, as, though warranted by the old Section 37 are not warranted by its successor and as could not have been brought or preferred or made, if the new section had been in force at the time when the proceedings were initiated. It is thus clear that the area covered by Section 7 is the excess of the old Section 37, over the new section. It is equally clear that it is not co-extensive with the old Section 37 and has not provided that any suit whatsoever, brought under the old section, if pending at the date of the commencement of the amending Act, shall automatically abate. The learned Judge was therefore entirely wrong in dealing with the matter as if, once he had found that the suit before him was a suit under the old Section 37, he could proceed immediately to hold that it had abated.

The next question raised before us was as to the manner in which Section 7 was to be applied. I have already quoted the words of the section. Mr. Gupta''s contention was that an order of abatement, made without considering the respective cases of the parties and without coming to a decision thereon, was not contemplated by the section, but what it contemplated was that if upon considering the respective cases of the parties, the court came to the conclusion that the suit was really one which could not have been brought under the new Section 37. it would then make an order recording its abatement. If, for example, the Plaintiff came to court with a case that the Defendant was a mere tresspasser, without any perfected right to remain in possession of the land, his suit, so framed, would be clearly outside the ambit of the old Section 37 and also outside Section 7 of the amending Act. Mr. Gupta, however, contended that the Defendant would not be bound by the averment of the Plaintiff and he might raise a question that he was not a tresspasser, but was holding under a lease and then the court would have to consider whether the suit was really a suit against a tresspasser or against a person claiming under a protected or an unprotected settlement. It would make an order, recording an abatement of the suit, only if it found that the suit was really against a Defendant who was holding under a kind of lease protected by the new Section 37 and therefore no longer maintainable.

I am unable to accept the contention of Mr. Gupta. Section 7 hits suits, proceedings, appeals or applications which "could "not have been validly instituted, preferred or made had this "Act been in operation at the date of the institution, the "preferring or the making thereof". The reference, therefore, is to the date of the initiation of the proceeding concerned and, to take the example of a suit, what the section contemplates is a suit which could not have been validly "instituted". Mr. Gupta contended that "validly instituted" meant, instituted successfully, that is to say, with success in the end. I do not think that the language used by the Legislature admits of that meaning. The language clearly has reference not to the result of the proceeding concerned but to its form and constitution at the date of its commencement. Mr. Gupta''s contention is clearly negatived by the word "abate" which the Legislature has used. According to the Oxford dictionary, the word "abate" used as an intransitive verb, means "to be at an end", "to "become null and void", "spoken of writs, actions, appeals". Section 7 therefore, means that the suit must be looked at, as it was in form and substance at the date of its institution and if it is found to come within the ambit of the section, it must be treated as at an end or as having become null or void. This provision leaves no room for the consideration of the respective cases of the parties and coming to a decision about abatement or otherwise at the end of the whole proceeding. Indeed, it seems to me that if the suit which falls to be considered is found to be a suit which, in form, is outside the mischief of Section 7, but the Defendant contends that his status is such that Section 7 is attracted, the court will undoubtedly have to go into the matter and if at the end of the hearing, the Defendant''s contention is found to be well-founded, the order made will be not that the suit has abated, but that the suit is dismissed. I cannot imagine the Legislature intended to provide that the court will enter upon a protracted consideration of the respective cases of the parties, just in the manner of hearing a regular suit, but if at the end it finds that the case against the Defendant cannot succeed, because the suit against him is not maintainable, it will record an order which must be called an order of abatement. Neither can I find any purpose in making a provision of this kind, if Mr. Gupta''s contention is to be accepted. The obvious object of Section 7 is to bring to an immediate end litigation which has palpably become unmentionable because of the enactment of the new Act or, to put it in other words, to excise dead matter which has ceased to be living litigation on account of the fatal blow struck at them by the new section. The object of the section is obviously to clear the board of a mass of litigation which is no longer maintainable and which ought not to be allowed to burden or encumber the courts any longer. If such only was not the object of Section 7, but the object was also to include proceedings which would require a protracted hearing of the case made by the Defendant and a decision after a determination of the real facts, I do not see what purpose was intended to be served. If the suit was to be heard at full length, nothing would be gained by calling the final order an order of abatement, rather an order of dismissal and I cannot imagine that the Legislature, although it was really providing for a dismissal upon hearing, used nevertheless the word "abatement", because it could not overcome the temptation of using that word.

In my view, the true meaning of Section 7 is, taking the case of suits, that the court ought to refer only to the plaint, as it is. If, on an examination of the plaint, it appears that, on the face of it, it contemplates a suit, which though warranted by the old Section 37, is not warranted by its successor, the court will not proceed with such a suit, but declare it to have abated. This view is in conformity with the view always taken when it has to be decided whether a particular court has jurisdiction to hear a particular suit or whether a particular suit is at all maintainable. The form and constitution of a suit is always taken to depend upon what the Plaintiff says in his plaint and not upon what the Defendant says in his written statement. I have no doubt whatever that the true and the only correct method of applying Section 7, in the manner in which it is intended to be applied, is to examine the plaint and to see whether, in view of the structure of the suit, there disclosed, it is a suit hit by Section 7 or not, without importing the allegations or denials made by the Defendant. Once the suit survives the preliminary scrutiny based upon the plaint, it must proceed and if, in the course of the hearing, it transpires that the Defendant''s interest is such that it is protected under the new section, the suit will fail on the merits and will be dismissed. No question of abatement will then arise.

It was not disputed by the parties that the learned Judge, although he had made some reference to the plaint, had not examined it from the point of view I have just indicated. He went very near doing so, but ultimately withdrew himself, because his basic notion that all suits brought under the old Section 37 were liable to abate u/s 7 of the amending Act appears to have returned upon him. To give an example, he quoted a vernacular passage from the plaint where it was stated that whatever rights the Defendants had in the land concerned, were liable to be extinguished by reason of the revenue sale and then added,

This line clearly brings into operation Section 37 of the old Act; hence there is no escape from the conclusion that the suit must be deemed to have abated by reason of Section 7 of Act VII of 1950.

The learned Judge apparently forgot that there might be suits, brought under the old Section 37, which would remain valid under the new section as well; for example, suits in regard to encumbrances which, as pointed out by the Judicial Committee in the case of 36 CWN 29 (Privy Council) , are extinguished ipso facto by a revenue sale do not require to be annulled or suits in regard to tenures or holdings which were not protected under the old law and is not protected under the new law either. It would thus seem that although the learned Judge did, towards the end of his judgment, address himself, to an examination of the plaint, he did so only for the purpose of finding out whether the suit was a suit under the old Section 37 and not for the purpose of finding out whether the suit was in regard to those matters included in the old Section 37 but which did not find place in the new section.

Both parties agreed that instead of our undertaking an examination of the plaint, it would be more convenient if the trial court itself did so. In our opinion, even if the matter came up here again, it would be clearly an advantage to have the benefit of the opinion of the trial court. The examination of the plaint, from the point of view I have indicated, must, therefore, be made by the court below.

In the result, the Rule is made absolute. The order passed by the learned Judge on February 5, 1954 is set aside and the case is sent back to him for decision in accordance with law and in the light of the observations contained in this judgment.

The Petitioner is entitled to the costs of this Rule. We assess the hearing fee at three gold mohurs.

Mallick, J.

I agree.