Panchanan Banerjee vs Kumar Bhupendra Kishore Acharya Choudhury

S.R. Das Gupta, J.—This appeal raises an interesting question of law. The Appellants before us were the tenants in respect of one tenure which consisted of two touzis. One of such touzis was within the district of Rajshahi and the other within the district of Birbhuni. After the partition of Bengal the touzi in Rajshahi became a part of the Pakistan State. The touzi within the district of Birbhum became a part of the Indian Union. The present suit out of which this appeal arises was a suit instituted by the landlords for rent. A plea was taken by the tenants that the court at Birbhum had no jurisdiction to entertain the said suit inasmuch as a part of the tenure was out side the Indian Union. The proper course, it was contended, to follow in such a ease was to have an apportionment and the rent fixed for the portion of the tenure which was within the Indian Union and, thereafter, to file a suit for rent in respect of that portion. The learned Munsif allowed this objection and dismissed the suit on the ground that the court at Rampurhat had no jurisdiction to entertain the suit. Against that there was an appeal and the District Judge reversed the decision of the Munsif and came to the conclusion that the court had jurisdiction. The learned District Judge in coming to the said conclusion relied on the amendment to Clause (1) of Section 144 of the Bengal Tenancy Act introduced in the year 1928. I should have mentioned that the Appellants also relied on Section 144 of the Bengal Tenancy Act and contended that in view of the provisions of that section the suit was not maintainable. The learned Judge, however, came to the conclusion that in view of the said amendment to Section 144 the Rampurhat court had jurisdiction to try this suit.

Before dealing with the contentions of the Appellants raised in this appeal, it will be convenient to set out Clause (1) of Section 144 of the Bengal Tenancy Act. The said clause reads as follows:

The cause of action in all suits between landlord and tenant as such shall, for the purposes of the Code of Civil Procedure, 1908, be deemed to have arisen within the local limits of the jurisdiction of the civil court which would have jurisdiction to entertain a suit for the possession of the tenure or holding in connection with which the suit is brought and no suit between landlord and tenant as such shall be instituted in any court other than a court within the local jurisdiction of which the lands of the tenure or holding, as the case may be, are wholly or partly situated.

The last portion of the said clause which begins with the words "no suit between landlord and tenant as such shall be "instituted" was inserted for the first time in the year 1928.

Mr. Mukherjee appearing on behalf of the Appellants contended before us that in view of the provisions of Section 144 of the Bengal Tenancy Act this suit is not maintainable, at least with respect to the touzi which is situated outside the Indian Union.

He, however, contended that the proper course to follow in this case would have been to have the rent apportioned and the rent fixed with regard to that portion of the tenure which is situated within the Indian Union and it was then that the Plaintiff would have been entitled to file a suit for rent.

This question is not free from difficulty, but on a full consideration of the matter we have come to the conclusion that the court at Rampurhat had jurisdiction to entertain the suit. All that Section 144 of the Bengal Tenancy Act, as it stood prior to the amendment in 1928, laid down was that the cause of action in all suits between landlord and tenant as such shall, for the purpose of the Code of Civil Procedure, be deemed to have arisen within the local limits of the court which would have jurisdiction to entertain a suit for possession. In other words, the said section as it originally stood only indicated where the cause of action in a suit between landlord and tenant would be held to have arisen. The question as to where a suit can be filed does not merely depend on where the cause of action arises. It depends on other considerations as well. For instance, if it is found that the Defendant resides within the jurisdiction of a particular court, then irrespective of the fact as to where the cause of action has arisen a suit can be filed u/s 20 of the CPC in that court and that court will have jurisdiction to entertain the suit. Section 144 of the Bengal Tenancy Act only lays down that in all suits between landlord and tenant, cause of action will be deemed to have arisen within the jurisdiction of the court which could entertain a suit for possession. The true effect of Section 144 of the Bengal Tenancy Act, as it stood prior to the amendment, has been laid down in the case of Kunja Mohan Chakravarty v. Manindra Chandra Roy Choudhuri (1922) 27 C.W.N. 542, 545. The case was decided by Mookerjee and Chotzner, JJ. The Court considered the effect of Section 144 of the Bengal Tenancy Act and came to the following conclusion:

This provision, it will be observed, does not specify the court where the suit is to be instituted. It merely defines the expression ''''cause of action" as applied to suits between landlord and tenant for the purposes of the Code of Civil Procedure. That this is the true scope of the section is clear from the decision in Fazlur Rahaman Abu Ahmed v. Dwarka Nath Choudhury ILR (1903) Cal. 453. In that case, it was ruled that Section 144, Bengal Tenancy Act, was controlled by Sections 15 and 17 of the CPC of 1882 and that consequently a suit for rent was required to be instituted, subject to pecuniary limitations, in the court, of the lowest grade competent to try it. Sir Francis Maclean, C.J., pointed out that Section 144 merely lays down where the cause of action in suits between landlord and tenant shall, for the purpose of the Code of Civil Procedure, be deemed to have arisen: it does not say in which court the suit is to be instituted. To ascertain this we must go to Section 17 of the Code of Civil Procedure, 1882.

Their Lordships then proceed to observe as follows:

We must consequently turn to the provisions of Section 20 of the Code of 1908 which replace Section 17 of the Code of 1882. Now, Section 20 provides that subject to the limitations aforesaid, that is, the limitations set out in the preceding section, every suit shall be instituted in a court within the local limits of whose jurisdiction (a) the Defendant or each of the Defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides or carries on business or personally works for gain; or (6) any of the Defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides or carries on business or personally works for gain, provided that in such case, either the leave of the court is given, or the Defendants, who do not reside, or carry on business or personally work for gain as aforesaid, acquiesce in such institutions, or (c) the cause of action wholly or in part arises.

We entirely agree with this view expressed in this case.

The position, therefore, is that a suit for rent may be instituted in the court within the local limits of which the Defendant resides or the cause of action has arisen''. In order again to determine where the case of action has arisen in a suit for rent we have to look to Section 144 of the Bengal Tenancy Act. In this case it is admitted by both the parties before us that the Defendant resides within the jurisdiction of the Rampurhat court. Therefore, this suit irrespective of this question as to where the cause of action arose, for the determination of which we have to look to Section 144 of the Bengal Tenancy Act, can be entertained by the court of Rampurhat. The next question is what is the effect of the amendment to Section 144 of the Bengal Tenancy Act as made in the year 1928. The amended portion of the said section, as I have already indicated, is that-

no suit between landlord and tenant as such shall be instituted in any court other than the court within the local jurisdiction of which the lands of the tenure or holding, as the case may be, are wholly or partly situated.

The first question we have to determine is: Is the present case at all covered by the amended portion of, the said section. Mr. Mukherjee on behalf of the Appellants argued, and there is considerable force in his argument, that the said portion where it says "the lands of the tenure or holding are wholly or partly "situated" means lands of the tenure or holding, the entirety, of which is within the jurisdiction of the Indian Union. In other words, the amended portion of Section 144 does not apply to a case where part of the land of a tenure is within the Indian Union and the other part of the land of the tenure is outside the Indian Union. If this view is correct then the result is that Section 144 of the Bengal Tenancy Act has no application to a case as at present where part of the land of a tenure is situated outside the Indian Union, If, on the other hand, the amended portion of the said section covers a case which is now before us where the part of the land of the tenure is situated within the Indian Union and the other part is situated outside the Indian Union, then the Court of Rampurhat would have jurisdiction to entertain this suit, because, part of the land of the said tenure is within the jurisdiction of that court. So, in any view of the matter it would be found that the court of Rampurhat had jurisdiction to entertain this suit.

The result, therefore, is that the appeal fails and is dismissed.

Having regard to the fact that the question raised before us was a difficult one and is not covered by any direct decision, we think that each party should pay it own costs of this appeal.

Mallick, J.

I agree.