HRISHIKESH MITRA Vs. BARADA PROSAD ROY CHOUDHURI

JUDGEMENT

(1.) This is an appeal by one of the defendants in a suit for rent. The 3 annas odd cosharer landlords instituted a suit on 16 April 1935 claiming rent from Asar 1338 to end of 1341 B. S. The suit was instituted under Section 148-A, Ben. Ten. Act, and according to that section, a notice was sent to the respondents who are 12 annas odd co-sharer landlords. But before that suit, the respondents 12 annas odd co-sharer landlords whose estate was under the Court of Wards had through their manager requisitioned to the Certificate Officer for a certificate on 18 April 1933 claiming rent for 1336 to 1339 B. S. The Deputy Collector filed the certificate on 29 May 1933 and duly issued notice under Section 7, but though the certificate proceedings went on for two years, the finding of the learned Subordinate Judge is that the notice under Section 7 does not appear to have been served. When the respondents got notice of the suit filed by their co-sharers they applied to the Deputy Collector for permission to withdraw the certificate and the Deputy Collector allowed them to withdraw the certificate. Then they came under Section 148-A and joined as co-plaintiffs with the 3 annas co-sharers and claimed rent for the years 1336 to 1341 B. S. Various defences were taken by the tenants. They were rejected and the learned Subordinate Judge has decreed the suit.

(2.) In appeal the learned advocate Dr. Pal has urged only one point, namely that the rent and cesses for the years 1336-1337 B. S. are barred by limitation and ought not to be allowed to the plaintiff respondents. The learned Subordinate Judge has thought that as the respondents proceeded with diligence in the certificate case in the Deputy Collector's Court the period during which they prosecuted that proceeding should be excluded under Section 14, Lim. Act. Upon hearing the learned advocate on both sides, it is clear that Section 14, Lim. Act, has no application to the facts of this case. That section only applies when the Court where the proceeding is prosecuted is from defect of jurisdiction or other cause of a like nature unable to entertain it. Now, in this case when the proceeding, namely the certificate, was instituted in April 1933, the certificate officer had full jurisdiction to entertain the certificate. Having lawfully entertained the certificate, he could not lose his jurisdiction merely because the co- sharer landlords instituted the suit two years later. The proceeding lawfully instituted does not become defective even if the law upon which it is based is altered after the institution of the suit unless the law specifically has given the retrospective effect. Now, in this case, the plaintiffs, respondents were fully entitled to carry on with the certificate of 1933 in spite of the suit by their co-sharers in 1935. The withdrawal by them of the certificate was an entirely voluntary action on their part and by such action they have lost the rents and cesses of 1336- 1337 under the law of limitation. Dr. Basak, the learned advocate for the respondents did not seriously defend, the decree of the learned Subordinate Judge in this respect. He prayed that the plaintiff-respondents may be permitted to revive the certificate of 1933 in the Court of the Certificate Officer so as to claim the rents and cesses for two years 1336-1337. As to this prayer, we have nothing to say. The party may apply to the Certificate Officer when the matter will be dealt with by him. R.C. Mitter, J.

(3.) The question in controversy in this appeal, though of first impression, is a short one. It is whether the claim for rent and cesses due to the share of the added plaintiffs for the years 1336 and 1337 is barred by limitation. Touzi No. 216 of the Khulna Collectorate belongs to two sets of proprietors, Mrin-tunjay Roy Choudhury and others and Barada Prosad Roy Choudhury and others, the former set of proprietors having 3 as. 4 pies share in the same and the latter set the remaining 12 as. 8 pies. For the purpose of convenience, I will hereafter call the first set of proprietors as three annas hissya and the second set thirteen annas hissya. Both the hissyas were under the management of the Court of Wards at all material times and are still under its management. Under both hissya is a ganti tenure named Bakshi Muhamed Mia held by the principal defendants at an annual rent of Rs. 1339-2.2, of which Rs. 256-5-1 is payable to the 3 annas hissya and Rs. 1082-13.1 to the 13 annas hissya, and there is separate collection.