Beer Bikramkishobe Manikya v. Tafazzal Hossain — 1933 DIGILAW 11 (CAL)

JUDGMENT Mitter, J. - This appeal and the forty revision cases arise out of an order of the Subordinate Judge of Noakhali, dated the 16th January, 1931, by which he directed a remand for re-hearing of the suits in which this appeal and these revision cases arise. It appears that His Highness the Maharaja of Hill Tipperah instituted the forty-one suits in which this appeal and these revision cases arise in the court of the Munsif at Feni for recovery of arrears of cesses for four years, covering the period from 1332 to 1335 B.S. His case is that the Defendant or Defendants in each of these suits are the owners of niskar lands within the ambit of his zemindri and they used to pay cesses to the Collector of Tipperah, but since 1913, these niskar lands, having been affiliated to his zemindri under the provisions of the Cess Act, the Maharaja had been paying cesses to the Collector and realizing cesses from the Defendants. The cesses were subjected to a re-valuation after an interval of 10 years and the Maharaja, being a mere collector of cesses imposed according to the latest re-valuation, claimed these cesses from the Defendants, as finally assessed by the Deputy Cess Collector under the provisions of the Bengal Cess Act (Bengal Act IX of 1880). The Maharaja had, in pursuance of those provisions, paid cesses to the Collector, according to the said re-valuation. In these suits, which were tried together, the Defendants appeared, but they did not take a plea to the effect that they were not liable to pay the cesses as the Plaintiff had not caused a service of notice in each mouz as contemplated by the provisions of Section 54 of the Cess Act. The Munsif, accordingly, refused to allow them to take the plea at the time of the argument, as it had not been taken in the written statement filed by them. He was of opinion that to allow them to take the plea at that stage of the argument would operate to the prejudice of the Plaintiff, the Maharaja. He accordingly decreed suits for cesses as claimed by the Plaintiff in each of the suits. 2. He was of opinion that to allow them to take the plea at that stage of the argument would operate to the prejudice of the Plaintiff, the Maharaja. He accordingly decreed suits for cesses as claimed by the Plaintiff in each of the suits. 2. Against these decrees, the Defendants preferred appeals to the court of the Additional Subordinate Judge of Noakhali, and the learned Subordinate Judge was of opinion that, as the notice u/s 54 was the foundation of the Defendants' liability to pay cesses, it was really a part of the Plaintiff's case to establish the service of these notices before the Defendants can be called on to pay the cesses paid by the Maharaja to the Collector. It appears that these forty-one suits were tried along with about thirty-three more suits, the suits being altogether seventy-four in number; in some of these suits there was some evidence to the effect that the notice u/s 54 was published in the villages Dakshin Shreepur and Nilakshi in the month of Chaitra, 1335 B.S., that is for the period just outside the period for which claim for cesses had been made in each of these suits. In this view, the Subordinate Judge was of opinion that an opportunity should be given to the Plaintiff for establishing the publication of the notices, more particularly in view of the fact that the Plaintiff offered to prove the notice in the court of the first instance, but could not do so as there was objection on the part of the Defendants. It may be mentioned that except the niskar lands in the two suits with regard to which there are two revision petitions, namely, revision petitions Nos. 482 and 495, all the other niskar lands are situate in either Nilakshi or Dakshin Shreepur. The Subordinate Judge seemed to think that, in view of these facts, it would not be right to throw out the Plaintiff's suit altogether, but that an opportunity should be given to him to prove that the notices u/s 54 had been served. Although, in respect of the suits to which revision cases Nos. 482 and 495 relate, niskar lands are situate outside the two mouzs I have mentioned, the Subordinate Judge is of opinion that the two suits, to which appeals Nos. Although, in respect of the suits to which revision cases Nos. 482 and 495 relate, niskar lands are situate outside the two mouzs I have mentioned, the Subordinate Judge is of opinion that the two suits, to which appeals Nos. 33 and 50 of 1930 before him relate, were also governed by the same consideration; and he directed that there should be an order of remand in all these suits to the Munsif, who should determine the question of service of notice and also any other relevant issues that might arise for consideration. 3. Against this decision the Plaintiff Maharaja has preferred one appeal and has filed forty applications in which Rules have been granted and, in support of this appeal and the revision cases, it has been argued by Mr. Jogeshchandra Ray, who appears for the Maharaja Appellant, that the judgment or rather the order of remand of the Additional Subordinate Judge is vitiated on several grounds. It is argued, in the first place, that the form of the order of remand is bad and, as all the suits in their entirety were tried by the Munsif on the evidence in the case, the remand to the Munsif made by the Subordinate Judge in respect of all these suits contravenes the provisions of Order XLI, Rule 23 of the Code of Civil Procedure. It has been argued, in the second place, that the service of notice u/s 54, being a condition precedent to the institution of the suits, it must be taken to have been implied in the allegation in the plaint that such a notice had been served in view of the provisions of Order VI, Rule 6 of the CPC and it was for the Defendant or Defendants in each of these suits to dispute the question of the maintainablity of these suits on the ground of want of notice, having regard to the provisions of Order VIII, Rule 2 of the Code of Civil Procedure. It has next been argued that, even if there was no notice u/s 54 of the Cess Act, that does not debar the Maharaja from recovering cesses, not at the double rate as contemplated by the provisions of Section 58, but, at any rate, according to the old rate. It has next been argued that, even if there was no notice u/s 54 of the Cess Act, that does not debar the Maharaja from recovering cesses, not at the double rate as contemplated by the provisions of Section 58, but, at any rate, according to the old rate. In this appeal and in these revision cases a further ground has been taken, namely, that there being an ex parte decree against many of the Defendants in these suits and only some of the Defendants having appealed before the Subordinate Judge, so far as the non-appealing Defendants are concerned, the decree for cesses against them as made by the Munsif should be allowed to stand. 4. We may dispose of the last contention at once by saying that, although only some of the Defendants did appeal, the other non-appealing Defendants were entitled to take advantage of any decision which had been arrived at in favour of the appealing Defendants by reason of the provisions of Order XLI, Rule 4 of the Code of Civil Procedure. So there is not much substance in this last contention of Mr. Ray. It becomes necessary to deal, in the first instance, with the second ground, for, if the Appellant succeeds on that ground, it would not be necessary to deal with the other contentions. So that ground really goes to the root of the defence. It is said that, although it was not specifically alleged in the plaint that the notice u/s 54 of the Cess Act had been served, yet, if one examines the provisions of Order VI, Rule 6 of the Code, it must be taken that the fulfilment of the condition precedent, namely, service of notice must be implied. Order VI, Rule 6 runs as follows:- Any condition precedent, the performance or occurence of which is intended to be contested, shall be distinctly specified in his pleading by the Plaintiff or Defendant, as the case may be ; and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the Plaintiff or Defendant shall be implied in his pleading. 5. 5. It is said further that, having regard to the provisions of Order VIII, Rule 2, the Defendants should not be permitted to raise the defence as one of notice u/s 54, as the Defendants in each case did not take the same in their respective written statement. Order VIII, Rule 2 runs as follows:- The Defendant must raise by his pleading all matters which show the suit not to be maintainable. 6. It is not necessary to quote the other part of the rule. It is argued that this rule is really a reproduction of Order IX, Rule 14 of the Supreme Court Rules and, according to Order VI, Rule 6, it does away with the necessity of general averment of the performance or occurrence of all conditions precedent; and, in support of this contention, reliance has been placed on the decision in the case of Gates v. W. A. and R. J. Jacobs, Limited [1920] 1. Ch. 567., which lays down the proposition which is now embodied in Order VI, Rule 6 of the Code. An examination of that case, however, will show that that case is no authority for the proposition that, although notice may be impliedly taken to have been served where there is no such allegation in the plaint, the Plaintiff is relieved from proving the service of the notice which is really the foundation of the liability of the Defendants. It has now been settled by the decisions of this Court, a type of which is to be found in the case ofAshanullah Khan Bahadur v. Trilochan Bagchi (1886) ILR 13 Calc. 197., that, in order that a zemindr or a superior landlord may be entitled to obtain decree for cesses as against a tenure-holder or against a niskar-dar, he must establish that there has been a notice u/s 54 of the Cess Act. In other words, that notice is really a condition precedent to tenure-holders or niskar-dr's liability or rather the foundation of his liability. In support of this view a case has been placed before us from the Patna High Court, which was also a case under Cess Act, where the question now in controversy was directly raised. That decision is in the case of Murli Manohar v. Raja Nand Singh (1923) 72 Ind. Cas 1., where Mr. In support of this view a case has been placed before us from the Patna High Court, which was also a case under Cess Act, where the question now in controversy was directly raised. That decision is in the case of Murli Manohar v. Raja Nand Singh (1923) 72 Ind. Cas 1., where Mr. Justice Ross, sitting singly, held that notice u/s 54 of the Cess Act is a condition precedent to the liability to pay cess. A Defendant must, the learned Judge says, if he contends non-service of such notice, state this specifically in his pleadings, otherwise due service of the notice will be presumed. The circumstance which distinguishes this case before Mr. Justice Ross from the present case is that, in the case before Mr. Justice Ross, the point was really taken before the lower appellate court. In the present case, it appears that, although the point was not raised in the pleadings, that is, in the written statement in each of these suits, the Defendants raised this contention in the course of the argument at a late stage of the suits and, at that stage, the Plaintiff offered to prove the notice which was objected to by the Defendants. The other circumstance, which distinguishes these cases from the Patna case, is that these cases were tried along with thirty-three other cases, in which there was some evidence led to show that notices u/s 54 were published in villages Dakshin Shreepur and Nilakshi in the month of Chaitra, 1335 B.S., that is after the period for which cess has been sued for in these suits, and this circumstance is relied on by the Subordinate Judge when he thought that the ends of justice will be met by directing a remand. There was no such evidence in the Patna case. The Subordinate Judge makes the following pertinent observation in this behalf which may be usefully reproduced here. He says this:- The ruling in Ashanullah Khan v. Trilochan Bagchi (1887) ILR 13 Calc. 197. is also to the effect that cesses may be recovered as they fall due after the publication of such a notice, and not cesses such as fell due prior to such publication. He says this:- The ruling in Ashanullah Khan v. Trilochan Bagchi (1887) ILR 13 Calc. 197. is also to the effect that cesses may be recovered as they fall due after the publication of such a notice, and not cesses such as fell due prior to such publication. To this the Plaintiff-Respondent's pleader replies that the evidence of the publication of notices u/s 54 that was adduced related to these cases only in which such an objection has been raised, and those cases were dismissed, as the Munsif considered the evidence to be insufficient and there have been no appeals in them. On the other hand, the Plaintiff, as it appears, offered to put in papers showing the publication of notices which were refused by the court on Defendant's objection and so nothing is known, so far as the Plaintiff's pleader in this Court is advised, as to how and when the notices in the present cases were published, for the lower court did not consider that the Plaintiff was called upon to prove this. It is further pointed out that it will not be fair to have refused the Plaintiff's documentary evidence about publication in the lower court, and to non-suit the Plaintiff here on account of absence of evidence to prove publication of notice u/s 54 here. This contention appears to be prima facie reasonable, just as much as contention by the learned pleader for the Appellants that once some evidence about the publication of such notices is admitted at the joint trial of a group of cases and is rejected, or is (as now) suspected to be insufficient, it will not be permissible to think that fact, the more specially as the publication of such notices is the legal prerequisite to Defendants being called upon to pay any cess at all. In these circumstances, for the ends of justice, the suit must be remanded for a fresh trial after investigation of the question of the publication of the notices u/s 54 and any other relevant issues that will arise for consideration. 7. We are, therefore, of opinion that the Subordinate Judge has taken a correct view, so far as the merits of the order of remand is concerned, and we think, except in the two cases, to which we shall advert presently, the order of the Subordinate Judge, on the merits, can be sustained. 7. We are, therefore, of opinion that the Subordinate Judge has taken a correct view, so far as the merits of the order of remand is concerned, and we think, except in the two cases, to which we shall advert presently, the order of the Subordinate Judge, on the merits, can be sustained. This brings us to the other point, namely, that the order of the remand is bad in form. That is the first contention which has been put forward and we agree with the learned advocate for the Appellant that that is so. The suits not having been decided on the preliminary point, it was not open to the appellate court to send back these suits for determination to the court of first instance, Order XLI, Rule 23 not applying to such a case. 8. The results is that, except in the two revision cases, to which we will refer presently, the order of the Subordinate Judge, directing a remand to the court of first instance, must be set aside, and he is directed to deal with the appeals in these cases after either taking such evidence on the question of notice u/s 54 of the Cess Act and, on other question, as he may deem expedient or if he so chooses, by directing the court of first instance to take evidence on these points and by asking it to send the evidence after recording its own findings to the lower appellate court. The lower appellate court, in these cases, is directed to deal with the further question raised before this Court, namely, as to the liability of the Defendant to pay cesses even if no notice had been served u/s 54; and the right of the Plaintiff to get cesses at the old rate will also be determined by the said court. The learned Subordinate Judge is also directed to determine as to whether notice u/s 54 is a pre-requisite in each of these forty-one cases. The lower appellate court will rehear these cases in the light of these observations. 9. Costs will abide the result. The hearing fee of this Court is assessed at one-half gold mohur, i.e., Rs. 8 for each of these cases. 10. With regard to Civil Revision Cases Nos. The lower appellate court will rehear these cases in the light of these observations. 9. Costs will abide the result. The hearing fee of this Court is assessed at one-half gold mohur, i.e., Rs. 8 for each of these cases. 10. With regard to Civil Revision Cases Nos. 482 and 495, it appears that the niskar lands are not situated within either the village of Dakshin Shreepur or the village of Nilakshi and, therefore, the considerations, which justify the Subordinate Judge in thinking that an opportunity should be given to the Plaintiff for establishing the publication of the notice in the other cases, do not apply to these two cases. 11. The result is that the order of the Subordinate Judge in each of these two cases is set aside and that of the Munsif is restored with costs throughout in each case. The hearing fee of this Court is assessed at one-half gold mohur, that is, Rs. 8 in each case. The Rules are thus made absolute. M.C. Ghose, J. 12. I agree.