JOY CHANDRA DUTTA Vs. SARAJUBALA DEBI

JUDGEMENT

(1.) A preliminary point was taken in this appeal that as the suit was brought on behalf of the plaintiffs, who are wards under the Court of Wards, without such authority as is required by Section 55, Act IX of 1879, B.C., it should have been dismissed. It was also urged that, even if it were held that the manager had properly instituted the suit to save limitation under the first proviso of that section, the Court should not have proceeded with it without sanction, which was only obtained on the 17th July 1917 and filed on the 19th July 1917, when all the evidence on both sides bad been taken and argument heard in part. The suit was instituted on the 17th September 1914, defendants Nos. 2, 3 and 4 appeared on the 6th November 1914 and defendant No. 1 a little later. They filed their written statements in April and May 1915. Issues were settled in August 1915. A commission for local enquiry was issued in January 1916. It was returned executed in June 1917. Examination of witnesses began in July 1917 and arguments began, after the whole of the evidence had been given, on the 17th July 1917. No objection was taken to the proceedings by the defendants all this time, but at their instance an issue as to the maintainability of the suit was then for the first time raised. The learned Judge has held that the suit was properly instituted by the manager to save limitation under the proviso above referred to, distinguishing it from Dinesh Chunder Roy v. Golam Mostapha 16 C. 89 Strong reliance has, however, been placed by the learned Vakil for the appellants on Digendra Chunder Sen v. Nritya Gopal Biswas 43 Ind. Cas. 184 : 27 C.L.J. 125 : 22 C.W.N. 419 a recent decision of this Court The trial Judge has rightly held that the manager instituted this suit to save limitation, as appears from his letter to the Collector, dated the 8th September 1914. The section, however, provides that "such suit shall not be afterwards proceeded with except under the sanction of the Court of Wards." The learned Judges in Digendra Chunder Sen s case 43 Ind. Cas. 184 : 27 C.L.J. 125 : 22 C.W.N 419 have held that such a suit cannot be proceeded with without such sanction and all proceedings taken subsequent to institution are without jurisdiction and must, therefore, be set aside.

(2.) I may say at once that I am not prepared to go that length. Section 55 seems to me to be intended for the guidance of managers. It simply lays down that if be files a suit to save limitation, he shall not proceed with it without the sanction of his employer, the Court of Wards. It is not a question of jurisdiction of the Court in which the suit has been instituted, but it seeks to control the action of the manager. There is nothing in the section which prevents the defendants from waiving the stay. To proceed with such a suit is not an assumption of jurisdiction which the trial Court does not possess. The utmost that can perhaps be said is that it is an irregularity in the exercise of its jurisdiction, which cannot be held entirely to vitiate the proceedings. Admittedly the Court had inherent jurisdiction over the subject-matter of the suit and the utmost the defendants could have required was a stay of the proceedings, but they did not ask for such stay and allowed elaborate proceedings to be taken and joined in them. There are numerous authorities which establish that when in a case which the Judge is competent to try, the parties without objection join issue and go to trial upon the merits, the defendants cannot subsequently dispute its jurisdiction upon the ground that there were irregularities in the initial procedure, which, if objected to at the time, would have led to the dismissal of the suit. Ledgard v. Bull 13 I.A. 134 at p. 145 : 9 A. 191 (P.C.) : 4 Sar. P.C.J. 741. In Digendra Chundra Sen s case 43 Ind. Cas. 184 : 27 C.L.J. 125 : 22 C.W.N. 419 the learned Judges directed a trial de novo, to proceed from the stage of filing the plaint. I could never have persuaded myself to make such an order in this case. It would have meant punishing the parties, involving heavy costs and loss of time. The proceedings continued for nearly three years, including local enquiries and examination of witnesses on commission. Nothing was shown or even suggested that the defendants had, in any way, been prejudiced. The manager applied for sanction in time. The plaint was sent to the Legal Remembrancer who approved of it, but it was apparently through an oversight that the Commissioner did not endorse the sanction until the date above mentioned. Duplication of machinery in these matters, sometimes as in this case, leads to unforeseen and unfortunate results, but I cannot bring myself to punish a party unless the law imposes upon me an obligation. The law does not, in my opinion, lay down such a definite bar as has been urged before us.

(3.) We are both agreed, however, that the suit was properly filed apart from the question of saving limitation. It seems to us to be a suit for rent, which is excepted under Section 55. No doubt the plaint speaks of the amount claimed as balance of the sale price of the Garh, but it refers to the instalments payable under the agreement for settlement of the Garh and to the terms of the lease. The use of the expression "sale price" is perhaps due to the fact that forest or Garh settlements are frequently made by auction to the highest bidder - the usual Bengali expression for it being "the sale" of a Garh, or it may be due to certain decisions in which the assignment of the right of cutting trees from a forest appears to have been treated as a contract for sale of the timber. It may also have been used to prevent the defendants claiming suspension of rent on allegations of dispossession from portions of the forest during the subsistence of the settlement or lease. In spite of the claim as worded in the plaint, the defendants treated it as a suit for rent and issues were framed accordingly. See issues Nos. 6, 7 and 8. The document upon which the claim is based Exhibit 25 is described as an agreement for settlement of the reserved Garh for a period of five years at a thika jama of Rs. 61,000, "the rent" being payable in instalments. It gives the defendants right to out down and sell the valuable trees and to grant sub-leases of such right. It gives liberty to them to get passages made and erect huts to enable the purchasers of the wood to live in them, and to make stockyards. It provides for damages for trespass into the area settled, and for the right of re- entry in case of default of payment of two instalments of "rent" with liberty to re-settle the Garh and also for reduction of rent in case of deficiency of area, and a duty is cast upon the lessees to inform the Police if any cognisable offence should occur. The covenants bind the parties and their representatives. It is clearly a demise of forest rights and the defendants are treated as lessees of the forest for a period of five years with power to grant sub-leases. It cannot be treated as an agreement merely for the sale of timber. The same view was taken in a document some what of a similar character in Abdulullah Sarkar v. Asraf Ali Mandal 7 C.L.J. 152 at p. 162. In this case there are additional rights, namely, that of building huts and stockyards on the land and to make passages and Ghats for the clearance of timber. In the case above referred to, the learned Judges held that Section 193, Bengal Tenancy Act, was applicable and that it was not rent within the meaning of Section 3 33 C. 601 of that Act. It is to be noted that Act X of 1859 contained no definition of rent. When the Bengal Tenancy Act (1885) was passed, the term "rent" was defined and given a restricted meaning; Section 193 was introduced, which with Clause (2) of Schedule III substantially reproduces Section 23, Clause (4), and Section 32 of Act X of 1859. In Shib Prosad Chaudhuri v. Vakai Pali 33 C. 601 the learned Judges held that there was nothing in the definition of "rent" in the Bengal Tenancy Act which excludes fishery rent, although this view is not accepted in Krishna Lal Chowdhury v. Salim Mahomed Chowdhury 27 Ind. Cas. 614 : 19 C.W.N. 514. The expression "rent" has a more extensive meaning than the definition given to it in the Bengal Tenancy Act. In Peary Lal Daw v. Madhoji Jiban 19 Ind. Cas. 865 : 17 C.L.J. 372 the learned Judges were strongly inclined to treat a suit for royalty payable in respect of a mine as a suit for rent under Article 110, Limitation Act, but did not do so having regard to the oases in which Article 116 had been held to be applicable. The word "rent" in Schedule III of the Bengal Tenancy Act includes money recoverable under any enactment for the time being in force, as if it was rent. Section 193, Bengal Tenancy Act, provides for the recovery of money payable in respect of forest rights as rent. We do not see any ground for holding that the present suit is not one for arrears of rent. A forest is landed property, and in the present case there is a lease of forest rights and the amount due is treated as rent and we think it is covered by the second proviso of Section 55, Act IX of 1879, and that the suit is maintainable as it was authorised by the manager. This disposes of the preliminary point raised. We decide it against the appellants.