Tarapada Roy vs Pulin Behari Naskar

Renupada Mukherjee, J.—This Rule was obtained by the Petitioner who figured as the sole applicant in an application u/s 26F of the Bengal Tenancy Act for pre-empting two-thirds share in an occupancy raiyati holding which is now admittedly held by opposite party, Pulin Behari Naskar. The raiyati holding in question has been recorded in khatiyan 98, mouza Khond Mohadebpur, and the Petitioner purports to have purchased the entire holding at a court sale as early as in 1939. It is, however, a fact that one Hem Nalini instituted a rent suit, being rent suit No. 94 of 1945, against some sub-tenants of this holding making the present Petitioner a pro. forma Defendant in that suit. The pro forma Defendant raised a question in the rent suit that he was the sole landlord of the sub-tenants and Hem Nalini had no interest in the holding. During the pendency of the suit the interest of Hem Nalini was assigned to the present opposite party and he was substituted in her place. It is an admitted fact that the rent suit was fought up to the High Court in second appeal where it was finally decided that the Petitioner has got only one-third share in the raiyati holding in question and the opposite party has got the remaining two-thirds share. This judgment was pronounced on May 25, 1950. On the basis of that judgment, the present application for pre-emption was filed by the Petitioner in the trial court on June 11, 1950. That application was rejected by the learned Munsif on two grounds, first, that the money deposited by the Petitioner fell short of the requisite amount, and secondly, the application was barred by limitation. On an appeal being taken against this order, it was held by the learned Subordinate Judge who heard the appeal that the money deposited by the applicant was sufficient but that his application was barred by limitation. This last finding of the learned Subordinate Judge has been challenged by the present Petitioner in this Rule.

The only contention urged on behalf of the Petitioner by Mr. Ganguli was that in considering the question of limitation the period between June 2, 1945, on which date the kobala which furnishes the claim for pre-emption was executed, and May 25, 1950, on which date the judgment of the High Court in the rent suit was finally pronounced, should have been excluded from computation, inasmuch as during this period the present Petitioner was bona fide prosecuting his case for the same reliefs which he now seeks on the application u/s 26F of the Bengal Tenancy Act. It may be incidentally mentioned here that both parties agreed before me that no notice of the transfer made on the basis of the kobala, dated June 2, 1945, was served on the Petitioner and so limitation in this case would be governed by the provisions of Article 181, Schedule I, of the Indian Limitation Act. It is, however, clear that the Petitioner's application must be rejected on the ground of limitation unless he succeeds in getting deduction for the period from June 2, 1945, to May 25, 1950, in computing the period of limitation.

It was urged on behalf of the Petitioner by Mr. Ganguli that the court below should have excluded the above period in computing limitation u/s 5 of the Limitation Act because the Petitioner had sufficient cause for not making the application for pre-emption during that period. The relevant portion of Section 5 of the Limitation Act runs as follows:

Any appeal or application for a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefore, when the Appellant or applicant satisfied the court that he had sufficient cause for not preferring the appeal or making the application within such period.

It may be conceded that during the period which is sought to be excluded by Mr. Ganguli in computing the period of limitation in this case, the Petitioner had some reasons for not making his application u/s 26F of the Bengal Tenancy Act, but the Petitioner is not entitled to claim such a deduction unless he can show that his application is one to which the provisions of Section 5 have been extended by any enactment. So far as I am aware, the provisions of this section of the Limitation Act have not been extended by any enactment to an application of this nature. That being the case, the Petitioner is not entitled to get the deduction prayed for u/s 5 of the Limitation Act.

The next contention which was urged more forcefully on behalf of the Petitioner by Mr. Ganguli is that limitation should, in any case, have been extended u/s 14(2) of the Limitation Act. Sub-section (2) of Section 14 of the Limitation Act runs as follows:

In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance, or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.

It was contended by Mr. Ganguli that las long as rent suit No. 94 of 1945 was not finally decided in the High Court, his client was really prosecuting this matter with due diligence and in good faith. This contention of the learned advocate for the Petitioner, however, does not bear scrutiny. The position taken by the Petitioner throughout in rent suit No. 94 of 1945 was wholly inconsistent with the position taken by him in the present proceeding. It was the case of the Petitioner in the rent suit that he had 16 annas share in the disputed holding and neither Hem Nalini nor her assignee had any interest. In fact, it is clear that the final decision in the rent suit has furnished the basis for the present application u/s 26F of the Bengal Tenancy Act and the Petitioner has now completely changed his position. The learned advocate for the Petitioner cited the case of T.T.P. Kunhikuttiali and Others Vs. T.P. Kunhammad and Another, and contended that a wide interpretation should be put upon Section 14 of the Limitation Act. On a perusal of that case I find that there the Plaintiff in a subsequent suit claimed deduction for the period during which an earlier suit in which he figured as a Defendant remained pending and which suit had been dismissed by the appellate court for non-maintainability of the suit. Relying on the Privy Council case of Nrityamoni Dasi v. Lakhan Chandra Sen ILR (1916) 43 Cal. 660 P.O., it was held by the learned Judges of the Madras High Court that the provisions of Section 14 would apply although the Plaintiff in the subsequent suit had been a Defendant in the earlier suit, because he had bona fide litigated for the same rights in both the suits and his claim in the subsequent suit had been made the subject-matter of an issue in the earlier suit. The fact that the Plaintiff of the subsequent suit had occupied two different roles in the two suits would not make any substantial difference in the matter of the application of Section 14 of the Limitation Act. In the present case, however, it cannot be said by any manner or means that the Petitioner claimed the same relief in the rent suit as he is now claiming in connection with his application u/s 26F of the Bengal Tenancy Act. In fact, the two claims are fundamentally different. Throughout the course of the rent suit the position taken by the Petitioner was that he is the 16 annas owner of the disputed holding and neither Hem Nalini nor her assignee opposite party No. 1, had got any interest therein; the application u/s 26F of the Bengal Tenancy Act was made on the footing that the opposite party has got two-thirds share in the holding. That being the case, and the reliefs claimed by the Petitioner being totally different in the two proceedings Section 14(2) of the Limitation Act has no application and the Petitioner is not entitled to invoke the benefit of that section for the purpose of extending limitation. In my judgment the question of limitation has been rightly decided by the courts below and there is no ground for interference in revision.

In the result, the Rule is discharged. The opposite party will get costs from the Petitioner, hearing fee being assessed at three gold mohurs.