BEJOY KUMAR ADDYA Vs. NAGENDRA NATH PALIT

JUDGEMENT

(1.) The plaintiff instituted this suit to recover arrears of rent with damages in respect of a piece of homestead land. The claim was for a period of four years. The suit was tried and decreed by Mr. Sharuddin Ahammed, Munsif, 3 Court, at Alipore, District 24-Parganas, exercising the powers of a Court of Small Causes. The defendants moved this Court for revision of the decision, and on their application a rule was issued to show cause why it should not be set aside. One of the contentions urged on behalf of the defendants at the hearing of the rule before the Division Bench was that Mr. Ahammed had no jurisdiction to try the suit. In having to deal with this contention, the Division Bench came to be of opinion that there was a conflict of judicial opinion bearing upon the question. Hence this reference. The relevant facts are the following: The second Schedule to the Provincial Small Cause Courts Act (9 of 1887), in its different clauses, enumerates the classes of suits, of which Courts of Small Causes are precluded from taking cognizance. Clause (8) of that Schedule runs in these words: A suit for recovery of rent other than house rent, unless the Judge of the Court of Small Causes has been expressly invested by the Local Government with authority to exercise jurisdiction with respect thereto.

(2.) Mr. Ahammed is the Munsif of the 3 Court at Alipore. It is not disputed that, as provided in Section 25 of the Bengal, N. W. P. and Assam Civil Courts Act (12 of 1887), the Local Government has, by a Notification in the Official Gazette conferred upon him the jurisdiction of a Judge of a Court of Small Causes for the trial of suits up to the value of Rs. 50 cognizable by such Courts and that consequently he had jurisdiction, pecuniary as well as territorial, to entertain the present suit. But Mr. Ahammed, admittedly, has never been personally invested by the Local Government with authority to exercise jurisdiction with respect to suits for recovery of rent, as required by Clause (8) aforesaid. And as conferring on him the authority to try this suit-his jurisdiction having been questioned at the trial-he has relied upon a Notification of the Government of Bengal, dated 21 June 1904, which was issued in these words: It is hereby notified that the Munsifs of Alipore and Sealdah in the District of the 24-Parganas are vested under Clause (8) of the second Schedule of the Provincial Small Cause Courts Act (Act 9 of 1887) with power to try under the Small Cause Court Procedure suits for the recovery of rent of homestead land within their respective jurisdiction when the value does not exceed Rs. 50.

(3.) The Division Bench were of opinion that a Notification such as this, which conferred jurisdiction upon the Court and not upon the Judge, is not a proper Notification under Clause (8). This was the view taken by Mookerjee and Beach-croft, JJ., of this very Notification in Safar Ali Mandal V/s. Golam Mandal 1916 Cal 574, with which the Division Bench were inclined to agree. They referred to two other decisions as supporting the contrary view: Akshoy Kumar V/s. Hiraram (1908) 35 Cal 677; and Mathur Hazra V/s. Paban Hazra (1914) 19 C W N 1238 (F N). They have formulated the following question for the decision of the Full Bench: Whether in a Notification under Clause (8) of the second Schedule of the Provincial Small Cause Courts Act, it is necessary to confer powers by reference to the name of a particular Judge of a Court of Small Causes in order to enable him to try suits for the recovery of rent of homestead land under the Small Cause Court Procedure.