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1950 Supreme(Cal) 13
HIGH COURT OF CALCUTTA
R. P. MOOKERJEE,LAHIRI, JJ.
Abdul Aziz Khan
Versus
Lalit Mohan Banerjee
Civil Rule No. 683 of 1949
Decided On : 25-01-1950
Bijan Behari Das Gupta and Ashutosh Ganguli - for Petitioner.
Apurbadhan Mukherji and Sudhir Kumar Dutta - for Opposite Party.
The special rule of limitation provided for by Section 26F(4)(A) of the Bengal Tenancy Act is applicable to cases where no notice was served under Section 26C, and the principle of reasonable time does not apply in such cases.
Headnote:
BENGAL TENANCY ACT - SECTION 26F(1), 26F(3), 26F(4)(A) - PRE-EMPTION - CO-SHARER TENANT - NOTICE - LIMITATION - SPECIAL LIMITATION - REASONABLE TIME - EQUITABLE RELIEF - APPLICABILITY OF SPECIAL BENCH DECISION.
Fact of the Case:
The petitioner, a co-sharer tenant, applied for pre-emption under Section 26F(1) of the Bengal Tenancy Act. The opposite party, a transferee co-sharer, filed an application to join as a co-applicant under Section 26F(4)(A). The petitioner objected on the ground that the application was barred by limitation.
Finding of the Court:
The court held that the opposite party's application was barred by limitation under Section 26F(4)(A) because it was filed more than one month from the date of the petitioner's application. The court also held that the principle of reasonable time, which allows a co-sharer tenant to apply for pre-emption within a reasonable time from the service of notice, does not apply to cases where no notice was served under Section 26C and where the special rule of limitation provided for by Section 26F(4)(A) is applicable.
Issues: 1. Whether the opposite party's application was barred by limitation under Section 26F(4)(A)? 2. Whether the principle of reasonable time applies to cases where no notice was served under Section 26C and where the special rule of limitation provided for by Section 26F(4)(A) is applicable?
Ratio Decidendi: 1. The court held that the opposite party's application was barred by limitation under Section 26F(4)(A) because it was filed more than one month from the date of the petitioner's application. The court interpreted Section 26F(4)(A) to mean that the starting point for calculating the limitation period is the date of the application by the original applicant, and not the date of service of the notice under Section 26F(3). 2. The court held that the principle of reasonable time, which allows a co-sharer tenant to apply for pre-emption within a reasonable time from the service of notice, does not apply to cases where no notice was served under Section 26C and where the special rule of limitation provided for by Section 26F(4)(A) is applicable. The court reasoned that the language of Section 26F(4)(A) is clear and unambiguous, and that there is no room for applying the principle of reasonable time in such cases.
Final Decision: The court made the rule absolute, set aside the orders of the courts below, and dismissed the application filed by the opposite party. There was no order as to costs of the court.
LAHIRI, J. :- The applicant for pre-emption under S. 26F(1), Bengal Tenancy Act, obtained this rule which is directed against an order of the First Subordinate Judge, Howrah, affirming the decision of the Munsif Uluberia, by which the application of the opposite party to join as a co-applicant under S. 26F(4)(A) was allowed.
2. The facts of the case which are undisputed ace as follows : On 12th November 1946, the opposite party purchased a share of an occupancy holding at an auction sale held in execution of a decree but no notice of the purchase was served on the co-sharers under S. 26C. The petitioner came to know about the sale on 28th March 1948 and on 16th April 1948 he made the application under S. 26F(1). Notice of this application was served on the opposite party under S. 26F(3) on 16th July 1948, and on 19th July 1948 the opposite party filed an application under S. 26F(4)(A) for joining in the application as a co-applicant alleging that he was a co-sharer of the holding from before the date of his auction purchase. This application was resisted by the petitioner on the ground that it was filed beyond the period of special limitation provided for by Sub-s. (4)(A) of S. 26F, Bengal "Tenancy Act and as such it was liable to be dismissed.
3. The Court of first instance held that though the application is barred under S. 26F(4)(A) it was within time under sub-s.(1) because the opposite party was not served with a notice under S. 26C and was therefore entitled to apply within three years from the date of sale under the decision of the Special Bench in the case of Asmat Ali v. Mujahar Ali, 52 C. W. N. 64 : (AIR (35) 1948 Cal. 48). The appellate Court holds that the opposite party being a transferee was not required to be served with a notice under S. 26C and therefore his application was not maintainable under Sub-s. (1); but the appellate Court affirmed the decision of the first Court on a different ground by applying the principle of certain decisions given by this Court under S. 26F as it stood before the amendment of 1938, e. g. Gadadhar v. Gopal Chandra, 40 C. W. N. 680;(AIR (23) 1936 Cal. 343); Sachindra Nath v. Trailakya Nath, 40 C. W. N. 1023 : (AIR (23) 1936 Cal 576) and Satis Chandra v. Jogendra Krishna, 41 C. W. N. 674 in which it has been held that when on account of the default of the Court the notice of an application by a co-sharer landlord has not been served on other co-sharer landlords within a month, the Court has inherent power to relieve the latter against the time limit for making an application under sub-s. 4(A) and an application made by a co-sharer landlord under sub-s. 4(A) will be allowed provided it is filed within and reasonable time of the service of the notice upon him, although it is filed after a month from the date of the application under sub-s.(1).
4. Mr. Das Gupta appearing for the petitioner has argued that the decisions under the old S. 26F will not apply to S. 26F after the amendment of 1938, because under S. 188, Bengal Tenancy Act, as it stood before the amendment of 1938 it was obligatory upon a co-sharer landlord to implead the remaining co-sharer in an application under S. 26F; whereas after the amendment of 1938, a cosharer tenant in making an application under S. 26F is not required to implead the other cosharer tenants. Reliance has also been placed on the decision in Gobardhan v. Gunadhar, 44 C. W. N. 802 : (AIR (28) 1941 Cal. 78), where it has been held that after the amendment of 1938 cosharer tenants are not necessary parties to an application under S. 26F. With regard to this argument it is to be noticed that a transferee cosharer is certainly a necessary party to an application under S. 26F and sub-s. (3) provides for a notice to be given to the transferee. The transferee cosharer tenant in a proceeding under S. 26F after the amendment of 1938 therefore stands in the same position as a cosharer landlord in a proceeding under S. 26F before the amendment. Consequentl
