Authored By : William Comer Petheram, Macpherson, Trevelyan,S.C. Ghose, Robert Fulton Rampini

William Comer Petheram, C.J., Macpherson, Trevelyan, S.C.Ghose and Robert Fulton Rampini, JJ.

1. The question which forms the subject of this reference iswhether when a number of tenants occupying land under the same landlord havebeen joined as defendants in the same proceeding for the settlement of rentsunder Section 104, Clause 2 of the Bengal Tenancy Act, and an appeal has beenpreferred to the Special Judge under Section 108, Clause 2, from the RevenueOfficers decision, making all, or nearly all, the tenants respondents, oneCourt fee of Rs. 10 is payable, or whether as many Court fees of Rs. 10 each asthere are tenant-defendants should be paid. The Special Judge in the Courtbelow held the latter view, and dismissed the appeal, as the proper amount ofCourt fee payable according to him was not paid.

2. On behalf of the petitioners it has been urged that as byRule 25, * Chapter VI of the Government Rules under the Tenancy Act, thelandlords were entitled to make a joint application, and as they presented inthe Court below but one memorandum of appeal, only one fee was payable. On theother hand, it has been contended that the Special Judges view is right, andthe following preliminary objections to the hearing of the rule have also beenput forward : (1) that this is a case in which this Court has no power tointerfere under Section 622 of the Civil Procedure Code; (2) that the Court ofthe Special Judge is not a Court subordinate to this Court.; (3) that Rule 25*by which the landlords were authorized to join all the respondents asdefendants in one application is ultra vires, and does not properly come withinthe scope of the powers Rule 31, Calcutta Gazette, 23rd December 1885. Now Rule25, Calcutta Gazette, 7th November, 1894 of Chapter on the Local Government bySection 189 of the Tenancy Act; and the Boat under the provisions of Section 12of the Court Fees Act, the decision 11th the District Judge is final.

3. We will deal firstly with these preliminary objections.As regards the first of them, it is sufficient to say that the Judge in thiscase appears to have refused to exercise a jurisdiction vested in him by law,viz., Section 108, Clause 2 of the Tenancy Act; and so this Court has power tointerfere under Section 622 of the Civil Procedure Code, unless the Court ofthe Special Judge is not a Court subordinate to this Court.

4. The learned pleader for the respondents bases hisargument that the Court of the Special Judge is not subordinate to this Courton the terms of Section 108, Clause 3, of the Bengal Tenancy Act, whichprovides for appeals to the High Court from the decisions of a Special Judge incertain cases only, "as if he were a Court subordinate to the High Courtwithin the meaning of the first section of Chapter 42 of the Code of CivilProcedure, which implies, it is said, that ordinarily he is not subordinate tothis Court. But Section 15 of the Courts Charter gives this Court powers ofsuperintendence over all Courts which may be subject to its appellatejurisdiction, and the Court of the Special Judge is a Court subject to theappellate jurisdiction of this Court, though, no doubt, when the only questioninvolved is as to a rent settled under Chapter X of the Act no second appeallies to this Court. We, therefore, consider that the Court of the Special Judgeis subordinate to this Court. The case of Shewbarat Koer v. Nirpat Roy I.L.R.16 Cal. 596 [LQ/CalHC/1889/60] may at first sight appear to be in conflict with this view, but wewould only say that, if it be so, we are unable to agree with the decision inthat case on this point.

5. The third objection urged by the learned pleader for therespondents is that Rule 25, [Rule 81, Calcutta Gazette, 23rd December 1885.Now Rule 25, Calcutta Gazette, 7th November, 1894] Chapter VI of the GovernmentRules under the Tenancy Act, under which the plaintiffs-appellants made a jointapplication to the Revenue Officer for the settlement of the respondentsrents, is ultra vires, and beyond the powers given to the Local Government bySection 189 of the Tenancy Act. But Clause (1) of Section 189 gives the LocalGovernment power to make rules "consistent with this Act" (i.e., theTenancy Act) "to regulate the procedure to be followed by Revenue Officersin the discharge of any duty imposed upon them by or under this Act." Now,the rule in question, No. 25 [Rule 81, Calcutta Gazette, 23rd December 1885.Now Rule 25, Calcutta Gazette, 7th November, 1894] of Chapter VI of theGovernment Rules, allows any number of tenants occupying land under the samelandlord to be joined as defendants in the same proceeding for the settlementof rents, and this is what has been done in this case. The Revenue Officer insettling the rents was obviously discharging a duty imposed on him by Section104 (2) of the Act. But it is said this rule practically authorises the joinderof several causes of action in one proceeding, which is contrary to Section 31of the Civil Procedure Code. This may be so, but this would seem to be yet withinthe powers conferred on the Local Government by Section 189, Clause 1; for Rule25* is undoubtedly a rule regulating the procedure of the Revenue Officer inthe discharge of a duty imposed on him by the Tenancy Act, and it is in no wayinconsistent with anything in the Tenancy Act, which is all that Section 189requires the rules to be.

6. The objection that under the provisions of Section 12 ofthe Court Fees Act the decision of the District Judge in this case is final isalso not well founded. According to the terms of this section, it is only thedecision of a Court on a question relating to the valuation of a suit, that isfinal, but the decision of the Special Judge in this case does not dispose ofany question relating to valuation,-far less, for reasons which will presentlybe given, of any question relating to the valuation of a suit.

7. As to the merits, we think that the proceedings in thiscase cannot properly be regarded as a suit The proceedings are, under Section104 (2) and the Government Rules, initiated, not by a plaint, but by anapplication, and this application is not subject to an ad valorem Court feeduty, as suits for money are subject under the provisions of Section 7 (1) ofthe Court Fees Act, but according to a notification of the Government of India,No. 5086 S.E., published at page 157, Part I-A of the Calcutta Gazette of the17th October 1894, to a Court fee of 8 annas. If then, the case is not a suitat its initiation, and need not be commenced by a plaint, why should it be a suit,and why should a memorandum of appeal be required to be presented in it at alater stage The provisions of Section 107 do not prescribe that the decisionof the Revenue Officer in every proceeding under Chapter X shall be a decree,but that it shall have "the force of a decree," which it may havewithout the proceeding necessarily becoming a suit. None of the rules framed byGovernment under the Tenancy Act lay down that such a proceeding shall be asuit. Rule 30 (b) merely prescribes that the proceeding shall be dealt with asa suit, that is to say, in respect of its procedure, which is all that theprovisions of Section 189, Clause (1), allow Government to regulate by means ofa rule. Rule 30 (b) cannot, therefore, have been intended to lay down that aproceeding under Chapter X of the Bengal Tenancy Act shall be dealt with as asuit in respect of the Court fees payable on it. If it did, this would beregulating more than the mere procedure to be followed by Revenue Officers inthe discharge of a duty imposed upon them by the Act, and would be ultra vires.It would, therefore, appear that the case of Petu Ghorai v. Ram Khelawan LalBhukut I.L.R. 18 Cal. 667 [LQ/CalHC/1891/6] , in which it has been held that a proceeding underChapter X is a suit, has been wrongly decided, and it follows, as Article 17,clause vi, of Schedule II of the Court Fees Act applies only to plaints ormemoranda of appeal in suits, that that Article is altogether inapplicable. Forthe same reason Section 17 of the Act is also inapplicable; so that neither onefee of Rs. 10, nor as many fees of Rs. 10 as there are tenant-defendants in theproceeding, should be paid on the applicants memorandum of appeal to theSpecial Judge. We can find no Article of the Court Fees Act expresslyapplicable to the applicants memorandum of appeal to the Special Judge. But,if the proceeding be not a suit, then the memorandum of appeal is nothing moreor less than an application, and, consequently, subject to one fee of eightannas only under Article (1), Clause (b), (2), Schedule II, of the Court FeesAct, and we find that this was the Court fee properly payable by thepetitioners on their memorandum of appeal to the Special Judge.

8. This rule will, therefore, be made absolute, and as morethan the necessary Court fee duty has been paid by the applicants, the SpecialJudge will now be directed to proceed with the hearing of their appeal.

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Upadhya Thakur and Ors.vs. Persidh Singh and Ors.(27.04.1896 - CALHC)