MAHARAJA BIR BIKRAM KISHORE Vs. MUNSHI TAFAZZAL, HUSSEIN

JUDGEMENT

(1.) This appeal and the forty revision cases arise out of an order of the Subordinate Judge of Noakhali, dated 16 January 1931, by which he directed a remand for re-hearing of the suits in which this appeal and these revision cases arise. It appears that His Highness the Maharaja of Hill Tipperah instituted the forty-one suits in which this appeal and these revision cases arise in the Court of the Munsif at Feni for recovery of arrears of cesses for four years covering the period from 1332 to 1335 B.S. His case is that the defendant or defendants in each of these suits are the owners of niskar lands within the ambit of his zamindari and they used to pay cesses to the Collector of Tipperah but since 1913 these Niskar lands having been affiliated to his zamindari under the provisions of the Cess Act the Maharaja had been paying cesses to the Collector and realizing cesses from the defendants. The cesses were subjected to a re-valuation after an interval of ten years and the Maharaja being a mere Collector of cesses imposed according to the latest re-valuation claimed these cesses from the defendants as finally assessed by the Deputy Cess Collector under the provisions of the Bengal Cess Act, Act 9 of 1880. The Maharaja had in pursuance of those provisions paid cesses to the Collector according to the said re-valuation. In these suits which were tried together the defendants appeared, but they did not take a plea to the effect that they were not liable to pay the cesses as the plaintiff had not caused a service of notice in each mouza as contemplated by the provisions of Section 54, Cess Act. The Munsif accordingly refused to allow them to take the plea at the time of the argument as it had not been taken in the written statement filed by them. He was of opinion that to allow them to take the plea at that stage of the argument would operate to the prejudice of the plaintiff, the Maharaja. He accordingly decreed the suits for cesses as claimed by the plaintiff in each of the suits.

(2.) Against these decrees the defendants preferred appeals to the Court of the Additional Subordinate Judge of Noakhali, and the learned Subordinate Judge was of opinion that as the notice under Section 54 was the foundation of the defendants liability to pay cesses it was really a part of the plaintiff's case to establish the service of these notices before the defendants can be called on to pay the cesses paid by the Maharaja to the Collector. It appears that these 41 suits were tried along with about 33 more suits the suits being altogether 74 in number; in some of these suits there was some evidence to the effect that the notice under Section 54 was published in the village Dakhin Sripur and Nilakhi in the month of Chaitra 1335 B.S. that is, for the period just outside the period for which claim for cesses had been made in each of these suits. In this view the Subordinate Judge was of opinion that an opportunity should be given to the plaintiff for establishing the publication of notices more particularly in view of the fact that the plaintiff offered to prove the notices in the Court of the first instance but could not do so as there was objection on the part of the defendants. It may be mentioned that except the niskar lands in the two suits with regard to which there are two revision petitions, namely, revision petitions Nos. 482 and 495 all the other nishkar lands are situate in either Nilakhi and Dakhin Sripur. The Subordinate Judge seemed to think that in view of these facts it would not be right to throw out the plaintiff's suit altogether but that an opportunity should be given to him to prove that the notices under Section 54 had been served. Although in respect of the suits to which revision cases Nos. 482 and 495 relate, nishkar lands are situate outside the two mouzahs. I have mentioned, the Subordinate Judge is of opinion that the two suits to which Appeals Nos. 33 and 50 of 1930 before him relate were also governed by the same consideration; and he directed that there should be an order of remand in all these suits to the Munsif who should determine the question of service of notice and also any other relevant issues that might arise for consideration.

(3.) Against this decision the plaintiff Maharaja has preferred one appeal and has filed forty applications in which Rules have been granted; and in support of this appeal and the revision cases it has been argued by Mr. Jogesh Chandra Roy who appears for the Maharaja appellant that the judgment or rather the order of remand of the Additional Subordinate Judge is vitiated on several grounds. It is argued in the first place that the form of the order of remand is bad and as all the suits in their entirety were tried by the Munsif on the evidence in the case the remand to the Munsif made by the Subordinate Judge in respect of all these suits contravenes the provisions of Order 41, Rule 23, Civil P.C. It has been argued in the second place that the service of notice under Section 54 being a condition precedent to the institution of the suits it must be taken to have been implied in the allegation in the plaint that such a notice had been served in view of the provisions of Order 6,. Rule 6, Civil P.C., and it was for the defendant or defendants in each of these suits to dispute the question of the maintainability of these suits on the ground of want of notice having regard to the provisions of Order 8, Rule 2, Civil P.C. It has next been argued that even if there was no notice under Section 54, Cess Act, that does not debar the Maharaja from recovering cesses not at the double rate as contemplated by the provisions of Section 58 but at any rate according to the old rate. In this appeal and in these revision cases a further ground has been taken, namely, that there being an ex parte decree against many of the defendants in these suit and only some of the defendants having appealed before the Subordinate Judge, so far as the non appealing defendants are concerned the decree for cesses against them as made by the Munsif should be allowed to stand.