JOTIS CHANDRA BISWAS Vs. JADU NATH SIKDAR

JUDGEMENT

(1.) This Rule arises out of an application for pre-emption under Section 26(F), Bengal Tenancy Act. The petitioners are co-sharer landlords in respect of the tenure. The opposite parties Nos. 1 and 2 purchased the land of a raiyati holding under that tenure and notice of the transfer was served by post on petitioner No. 1 and opposite party No. 2 on 8 July 1935. According to the case made in the petition, on 25 July 1935, the petitioners pleader went to Court with the application for pre-emption to be filed on behalf of the petitioners and chalans and the necessary amount of Rs. 77 to be deposited on account of the price and the landlord's transfer-fee. It is further stated that the said application was filed in Court on 25 July and the chalans were filed before the Sheristadar, but for want of time the chalans were not passed on the same date and were passed on the next date, that is, 26 July, when the necessary amount was deposited. The application itself was registered on 27 July and notices were ordered to be issued on the opposite parties. Thereafter adjournments were granted for various reasons. Finally the matter came up for hearing on 7 December 1935. On that date the Munsif passed the order dismissing the petitioners application for pre- emption on the ground that, as the deposit was made on 26 July and the application was filed on the 25th, the petitioners were not entitled to any relief. Against that order the present Rule has been obtained.

(2.) The stamp on the application shows that it was filed in Court on the 25 July. The chalan for Rs. 77 was passed by the Sheristadar on the 26 July. Then there is an order of the Munsif dated the 26 July: "Put up after the receipt of chalan". Then the order of the Munsif dated 27 is "Chalan received. Register". On behalf of the petitioners it is pointed out that in this case the Court accepted the money, issued notices, etc., and then after five months proceeded to dismiss the application. Under Section 26-F, Sub-section (1), Clause (d) the petitioner would be entitled to apply within two months of the service of notice. Consequently if the application had been dismissed for want of deposit, then and there, the petitioner would have had ample time within which he could have filed another application after making the deposit. Under Sub-section (2) "the application shall be dismissed unless such landlord at the time of making it deposits in Court the amount", etc. It is contended for the petitioners that the expression making does not mean filing, but that it refers to some time when the application is brought to the notice of the presiding officer of the Court who has power to dismiss. This is the point to be decided in this Rule. Our attention has been drawn to certain decisions and it would appear that to some extent there is conflict of judicial opinion. In Sidheswari Prosad Roy Chowdhury V/s. Gendu Mia (1930) 61 C L J 27 the deposit contemplated by Section 26. F (2) was made on the date following that of the application, but both the application and the deposit were within the period of two months of the service of notice. D.N. Mitter, J. took the view that Section 26-F should be construed liberally, the intention of the Legislature being that the deposit should be made within two months from the date of notice. In that view he held that the application and the deposit were in order. In Jatindra Kumar v. Chandra Kumar the application was filed on a certain date and along with it chalans for the deposit of the money required were filed, but the chalans were passed and the deposit of the money was made on a subsequent date. Mallik, J. held that the application was in order. He remarked: The landlords in the circumstances did all that they had under the law to do and if they did all that they had to do towards making a deposit what they actually did on the date when the applications were filed was in my judgment a deposit that was contemplated by the law to have been made by the applicants.

(3.) A contrary note was struck in Girish Chandra V/s. Jadavpur Estate Ltd. , which was before a Division Bench presided over by Guha and Bartley, JJ. It appears that in that case the application was filed on 28 August 1933, the chalan for the amount required was filed on the following date. The judgment of the Court was that such deposit, even though within two months from the date of the receipt of notice by the landlord, will not save the application. It was remarked: The law is imperative on the point, and expressly provides for the dismissal of the application for pre-emption, unless at the time of making the application, the deposit as required by Section 26-F (2) Bengal Tenancy Act is made by the applicant.