S.C. Ghose, J.

1. This rule was issued under Section 622 of the CivilProcedure Code, upon the defendant, the opposite party before us, to show causewhy a judgment passed by the District Judge of Nuddea, holding that the suit ofthe plaintiff, who is one of several co-sharers in a joint undivided Mehal, forthe recovery of his share of the rent, cannot, by reason of Section 188 of theBengal Tenancy Act, be maintained, should not be set aside.

2. Both the Munsif and the District Judge have, as weunderstand, held that, as a matter of fact, the plaintiff has, for some yearsback, been in the separate receipt and enjoyment of his share of the rent; butnotwithstanding that finding the Judge holds, as I have just said, that thesuit, which is for recovery of the plaintiffs share of the rent, does not lieby reason of Section 188 of the Tenancy Act.

3. A preliminary objection has been taken by the learnedCounsel for the opposite party, upon the ground that, in the circumstances ofthis case, this Court has no authority, under Section 622 of the ProcedureCode, to interfere with the judgment of the District Judge.

4. It appears to me that what the Judge has done in thiscase comes clearly within the scope of Section 622.

5. That section runs thus: "The High Court may call forthe record of any case in which no appeal lies to the High Court, if the Courtby which the case was decided appears to have exercised a jurisdiction notvested in it by law, or to have failed to exercise a jurisdiction so vested, orto have acted in the exercise of its jurisdiction illegally or with materialirregularity, and may pass such order in the case as the High Court thinksfit."

6. The District Judge had certainly jurisdiction to decidethis case in appeal; but it is quite apparent that, while exercising thatjurisdiction, he exercised it illegally, and with material irregularity, if theview we take of the law on the subject be correct; for what he has done isthis: he holds that the suit does not lie at all; and be holds this because heconsiders a certain law applicable to the case, and which law, he thinks,prohibits such an action being entertained. This appears to me to be a clearillegality on the part of the Judge, in the exercise of the jurisdiction,which, under the law, he was authorized to exercise; and, in this view of thematter, this case seems to me clearly distinguishable from the case of AmirHassan Khan v. Sheo Baksh Singh 11 C. 6 : 11 I.A. 237 which was referred to bythe learned Counsel. The main question in that case was, whether the suit wasbarred by res judicata ; and some other questions as to the right of theplaintiff, in connection with a mortgage transaction, were also raised. TheDistrict Judge in appeal held that the questions raised in the case should bedecided for the plaintiff, and accordingly a decree was passed in his favour.Thereupon the Judicial Commissioner was moved under Article 622 of theProcedure Code; and he took a view of the matter contrary to that which hadbeen taken by the District Judge, and dismissed the suit. What the JudicialCommittee held in that case was that the District Judge had jurisdiction todecide the question before him one way or the other, and if he made a mistakein deciding it that was not a matter which could be rectified by an applicationunder Section 622. But it appears to me that the matter is different, where aJudge, in dealing with a case, erroneously holds that a particular statute, orsection of it, is applicable to the case, and that by reason of that statute orsection the suit does not at all lie. In that case it would seem that, in theexercise of the jurisdiction vested in him by law, the Judge acts illegally andwith material irregularity within the meaning of Section 622. I think,therefore, that in this instance the preliminary objection ought not toprevail, and that we are bound to decide the case on its merits.

7. As to the merits, it appears to me that we ought tofollow the ruling that was laid down in two cases-one, that of Prem ChandNuskur v. Mohshoda Debi 41 C. 201 and the other, mentioned in the note to thatcase, viz., Umesh Chunder Roy v. Nasir Mullick 14 C. 203 note.

8. Section 188 of the Bengal Tenancy Act runs thus:"Where two or more persons are joint landlords, any thing which thelandlord is, under this Act, required or authorized to do, must be done eitherby both or all those persons acting together or by an agent authorized to acton behalf of both or all of them."

9. The learned Counsel contends, and I think rightly, thatthe word "the landlord" must be taken to mean the whole body oflandlords. But then the question that arises upon the section is, whether thereis anything in the Act that lays down that the whole body of landlords isrequired or authorized to bring a suit for rent; in other words, is thereanything in this Act, to indicate that the whole body of landlords must join inbringing a suit for rent We think that there is nothing in the Act to thateffect.

10. According to the law which was in force before this Actcame into operation, and according to the rulings of this Court under that law,if a co-sharer in a joint undivided mehal had been in previous years in theseparate receipt and enjoyment of his share of the rent, it was competent tohim to bring a suit for rent in respect of his own share. Is there anything inthis Act to indicate that it was the intention of the Legislature to alter thatlaw, and to lay it down that the whole body of shareholders must, if any rentbe due to any one of them, bring a joint suit for the recovery of the same Itappears to me that there is nothing in the Act to indicate that this was everthe intention of the Legislature.

11. For these reasons we think that the District Judge wasin error in his application of Section 188 of the Bengal Tenancy Act to thefacts of this case, and therefore this rule must be made absolute with costs.

.

Jugobundhu Pattuckvs. Jadu Ghose Alkushi (08.06.1887- CALHC)