INDERJIT RAI Vs. BULAK CHAND

JUDGEMENT

(1.) This appeal arises out of an action to set aside a sale for arrears of revenue. The appeal is by the plaintiff. It is not disputed that the last date of the payment of the revenue of the particular kist in question was 28 March 1933, nor is it disputed that the actual payment made by money order arrived on 1 April; this was the plaintiff's own case. The money order arrived on 1 April although in fact it was taken out by the plaintiff on 24 March 1933 and should have, in the ordinary course of events, arrived in time. It appears from the evidence which the plaintiff himself adduced in the case that the delay was caused by the post office of origin. Now, it might have been the case of the plaintiff that, having regard to all the circumstances of the case, the Court ought to have assumed that the payment was made in time. But this was not his case; his case in the plaint and throughout in the Courts below had been that the last day of payment was not the 28 March 1933 within the meaning of Section 3 of Act 11 of 1859, but some later date presumably the 1 May. It was on that allegation that the action failed as I have already stated. Two or three points were raised in this case.

(2.) One is the objection to the suit by reason of Section 33 of the Act; this is raised by Mr. De who appears on behalf of the defendants respondents. In my judgment however that is not a bar to the suit if in fact there were no arrears of revenue. The view I have taken of Balkishen Das V/s. Simpson (1898) 25 Cal. 833 is that their Lordships of the Judicial Committee in the opinion expressed by Lord Watson held that in the case of there being no jurisdiction to sell in the sense that there were no arrears of revenue, Section 33 of Act 11 of 1859 would not stand in the way of the plaintiff even although he had not raised the question before the Commissioner. Lord Watson in the course of his judgment in that case made this observation: The result is that the whole proceedings of the Collector, with a view to the sale of the 5 annas share, were beyond his jurisdiction, and are not entitled to the protection given him by the Act in cases where sale is authorized, although it may be attended with some irregularity or illegality.

(3.) The illegality as I understand the expression used by the learned Law Lord in that case, did not mean an illegality in the sense that there were no arrears of revenue, and therefore the Collector had no jurisdiction to sell. In my judgment therefore so far as Section 33 of the Act is concerned, there is no bar to the plaintiff's suit. But in the view that I take of the matter that question does not strictly arise. Mr. Sushil Madhab Mullick relies upon the Board's Touzi Manual, 1923, which purports to be a manual of instructions for the guidance of the establishment engaged in keeping the accounts of the ordinary land revenue and the local cess demands. Had the circumstances been otherwise, the plaintiff could have got great assistance from Rule 30 of those rules (at p. 32 of the Manual). Rule 30 provides inter alia: If a remittance of land revenue by money order is received in the Treasury after the sunset of kist day (the latest date of payment) a note should similarly be made across the acknowledgment in red ink that the payment is too late for kist day (the latest date of payment).