Dulal Chandra Sen vs Dulal Chandra Das

Laik, J.—This is an application for review of my judgment, filed in Court on February 2, 1965, under the provisions of Order 47, Rule 1 of the Code of Civil Procedure, passed in an appeal from appellate decree, which arose out of a suit for ejectment, on the ground of default, in which arrears of rent and mesne profits were also claimed against Tinkari, Defendant No. 1 and Dulal, the present Applicant, being minor then, as Defendant No. 2, represented by his mother Nirmala.

The Defendants, including the Petitioner, on the application by the Plaintiffs u/s 14(4) of the West Bengal Premises Rent Control Act, 1950, were directed to deposit a sum of Rs. 1064 towards the arrears of rent. As it was not put in, the defence against ejectment was struck out. A Rule, directed against the said order, was ultimately discharged by this Court. The suit was, thereafter, decreed by the learned Munsif. Two appeals were preferred one, by two other Defendants, namely, the said eldest son Tinkari and his mother Sm. Nirmala Sen jointly and the other by Dulal, the Defendant No. 2, the present Applicant. The decree of the Court of appeal below had dismissed both the said appeals. A second appeal by Tinkari and his mother to this Court was summarily dismissed under the provisions of Order 41, Rule 11 of the Code of Civil Procedure. The other second appeal, preferred by Dulal, the present Applicant, was allowed in part by me, by delivering a judgment, for review of which the instant application is made. I set aside the decree, passed by the Court of appeal below on account of arrears of rent including interest, as well as the decree for mesne profits. I sent the case back to the trial Court for passing a fresh decree in respect of above claims, keeping in view the subsequent order passed by the Rent Controller fixing the rent. The decree for ejectment, however, was affirmed by me.

Mr. A.D. Mukherjee, the learned Advocate in support of the application for review of the said judgment of mine, mainly contended that the notice to quit, non-compliance, of which gave rise to the suit, was insufficient and invalid and the suit should have been dismissed on the issue of notice alone. It is stated by Mr. Mukherjee that Mr. Lala, the learned Advocate, forgot to argue the said point at the time of arguing the appeal. Rather he ''missed and overlooked'' the point. According to Mr. Mukherjee, as it is an error apparent on the face of the record, the provisions of Order 47, Code of Civil Procedure, should be invoked. He states that the Defendants are not joint tenants but tenants-in-common; and in the absence of the service of the notice on each of them the decree for ejectment should not have been affirmed by me.

Mr. Samir Kumar Mukherjee, the learned Advocate appearing for Tinkari and the Applicant''s mother, merely supports Mr. Mukherjee.

Mr. Deb opposes the application for review on three grounds: firstly, the application is barred by time; secondly, the application is not maintainable as there is no error apparent on the face of the record to attract the provisions of Order 47 of the Code and thirdly, it has no merits.

Taking the last two points first, I am of opinion that the application is neither maintainable nor has it any merits. It is fit to be and should be dismissed. The point as to the service of the notice was raised before the trial Court on which issue No. 1 was framed. The said issue was decided in favour of the Plaintiffs to the effect that the notice was sufficient and that there was proper service. The learned Munsif held that "the Defendants are joint tenants", on the finding that Tinkari, on whom, admittedly, the notice was served, was the karta of the family and on the further finding that the mother and the present Applicant, who was a minor then, as well as Tinkari, in other words, the mother and the two sons, were residing in the same premises, the family being joint.

For the first time in this application for review, Mr. Mukherjee has taken the point that the Defendants were not joint tenants but tenants in common. No such case appears to have been made in the Courts below and also not taken and I would say, rightly, by Mr. Lala before me, at the time of the hearing of the appeal. On the other hand, the memorandum of appeal, filed by the present Applicant before the Court of appeal below, i.e., in Title Appeal No. 57 of 1959 to the effect that "separate notice not having been sent to each of the joint tenants", supports the case of joint tenancy.

On the point that the Defendants were not joint tenants, Mr. Mukherjee, however, cites four decisions, namely, the cases of Bejoy Chand Mahatab v. Kali Prasanna Seal (1925) 29 C.W.N. 620, Anwarali Bepari v. Jamini Lal Roy Chowdhury (1939) 43 C.W.N. 797 and Naraindas Daulatram Kripalini v. The New India Assurance Co. Ltd. (1964) 69 C.W.N. 313 and lastly to the decision in the case of Kanji Manji Vs. The Trustees of The Port of Bombay, . He also places before me the provisions of Section 19 of the Hindu Succession Act to show that the heirs now succeed, not as joint tenants but as tenants-in-common.

The Bench decision Suhrawardy and Cuming, JJ. in Bijoy Chand''s case (1925) 29 C.W.N. 620 equates the joint tenants with the tenants in common. The distinguishing feature in the said case was that the Defendant No. 1 was not held to be the karta of the family. In the case in hand, Tinkari, Defendant No. 1, has been held to be the karta, as already noticed. The said Bench decision also proceeded on the special fact that not only there was no service or tender of notice to Defendant No. 9 but no notice was addressed to him. In the instant case it is not submitted that the notice was not properly addressed to all the three Defendants. Accordingly, the said decision is of no help to Mr. Mukherjee. The main question decided in Anwarali Bepari''s case (1939) 43 C.W.N. 797 was whether the lease in question would be taken to be a lease from month to month, under the provisions of Section 106 of the Transfer of Property Act. The whole judgment deals with the said question but in one paragraph Nasim Ali, J. sitting singly, observed:

The notice served on the Defendants, not having been admittedly served on the heirs of some of the tenants who are dead, it cannot be taken to be valid and sufficient in law to determine the tenancy.

The short facts appearing in the said report, do not support the contention that the same principle would apply to the set of facts in the instant case.

It is no doubt true that Section 19 of the Hindu Sussession Act provides, as stated above; but that Act does not help the solution of the present problem. The Supreme Court decision in Kanji Manji''s case (Supra) again, does not assist Mr. Mukherjee at all. It appears that in the said decision of the Supreme Court there was assignment of the rights of the lessees on February 28, 1947, to Rupji Jeraj and Kanji Manji. The notice referred to in the said decision dated January 25, 1956, was served only on Kanji Manji and not upon the heirs of Rupji Jeraj, inspite of, the assignment. Their Lordships after referring to the deed of assignment, where the expression ''joint tenants'' occurs, found that once it was held that the tenancy was joint, a notice to one of the joint tenants was sufficient. In the instant case, as I have already stated, the learned Munsif found the Defendants as joint tenants, which had not been challenged, except for the first time in this application for review. The principle of the said Supreme Court decision goes against the contention of Mr. Mukherjee. In the said recent Bench decision of this Court in the case of Naraindas (Supra) P.N. Mookerjee, J. after referring to the well-known Privy Council case; of 23 CWN 77 (Privy Council) and the case of Bijay Chand (Supra) and also to the said Supreme Court decision, held, that if the Defendants were joint tenants, there could be no question that the service of notice on one of the Defendants would be valid and sufficient.

On merits, therefore, Mr. Mukherjee has no case. The learned Advocate cannot also satisfy how it is an error apparent on the face of the record. On the particular facts of this case, it does not, in my judgment, attract the provisions of Order 47, Rule 1 of the Code of Civil Procedure.

Lastly, I accept the contention of Mr. Deb that the application for review is barred by time. The judgment sought to be reviewed was delivered by me on September 28, 1964. Next day, i.e. September 29, the High Court closed for long vacation. It reopened on November 9. The application for certified copy of the judgment was not made on the reopening day. It was applied for on the next day, i.e. on November 10. The decree in the appeal was signed on December 3, 1964. The Applicant was notified for putting in the requisites on December 8. The folios were supplied on that very day; the certified copy was made ready on December 12. The application for review was not filed in the office before January 6, 1965. The Stamp Reporter reports that it was out of time by one month and twenty eight days.

Mr. Deb contends that the last date would expire on the reopening day, i.e. November 9 and the application for review would be dead as mutton on the next day, i.e. on November 10. Even if it was not so, Mr. Deb next contended that when the application for copy was made ready on December 12, the application for review ought to have been filed even on the next day on receipt of the copy. But the Applicant waited till January 6, 1965, to file this application for review when it is hopelessly barred by time.

Mr. Mukherjee sought to escape from the contention by alleging that his client was entitled to the exclusion of the entire period of the vacation and even the day after the re-opening and referred me to the provisions of Section 12(2) of the Indian Limitation Act, 1908. Four decisions, all of the Patna High Court, viz. Debi Charan Lal v. Sheik Mehdi Hussain [1916), 20 CWN 1303 , Imaman v. Sham Sagar AIR 1919 Pat. 506, Munshi Mahton v. Lachman Lal AIR 1929 Pat. 615 and Pikhesar Nath Tewari and Others Vs. Janakdeo Nath Tewari and Others, , were brought to my notice. According to Mr. Mukherjee, the time from September 28, should be taken as continuous and the application for review could not, therefore, be barred on January 6, 1965.

In the first case, viz. Debi Charan Lal v. Sheik Mehdi Hussain [1916), 20 CWN 1303 , the special facts were that the judgment and decree were signed on the same day, which is not so in the instant case. Moreover, the point, which calls for decision in the instant case, was thought by their Lordships as not necessary to be decided. The said decision had referred to a Madras decision where it appeared that the copy was applied for on the reopening day, which day was not availed of here. The observation of their Lordships of the Patna High Court, ''or on any day thereafter'' could not, in my view, be supported on the language of Section 12 of the Act, without causing violence to the same. Similarly, the second decision in Sham Sagars case AIR 1919 Pat. 506, the copy was applied for, on the reopening day and the period taken between the signature of the judgment and that of the decree was considered. The position is not the same here. In the third decision, in the case of Munshi Mahton AIR 1929 Pat. 615, it is true, that the vacation was excluded but, in my view, because it was continuous. In the case in hand, there is at least a gap of one day, when the application for review was not made on the reopening day, i.e. on November 9, but on the day after. That makes a good deal of difference. The last decision in Janakdeo''s case (Supra), refers to Sections 4 and 13 of the Indian Limitation Act and I find no reference to Section 12.

Mr. Mukherjee cites another decision in the case of Chandan Bhuya v. Haroo Sethi 13 C.L.J. 544 : 11 I.C. 387. The Limitation Act of 1877 was considered there and Mr. Mukherjee could not satisfy me that the language of the Act of 1877 and the instant Act is the same. Moreover, in the said decision, it was again observed that the application was to be made on the reopening day. Mr. Biswas citation of the Supreme Court decision in the case of Jagat Dhish Bhargava Vs. Jawahar Lal Bhargava and Others, does not support the Applicant.

In my judgment, time begins to run in the instant case from the date of the delivery of the judgment. The day on which the judgment is delivered, should be taken as the beginning of the time to run. ''Exclusion'' of the time means exclusion of the day of judgment but not the next day or the day after as sought to be argued, in the instant case. My attention was called to the provisions of Section 4 of the Limitation Act. The said section does not provide for the computation of the prescribed period. It cannot be said to alter the length of the prescribed period like Section 14 and other sections of a similar nature in the Act. The language of Section 4 is such that it seems to be impossible to apply it to a case like the present.

Mr. Mukherjee lastly submits that I have general judicial discretion outside the Limitation Act to relieve the Applicant, in a case of hardship. True, that the Court has a discretion to relieve a suitor but it is statutory and in limited respects. There cannot be implied in the Court a general discretion to dispense with the provisions of the Act.

Therefore, on any view of the case, the application necessarily fails. The application for review is, accordingly, dismissed with costs, hearing fee being assessed at five gold mohurs. The application for stay is also dismissed but without any order as to costs.