P L D 1965 Dacca 538 (PLP)

(b) in execution of a decree or a certificate signed under the Bengal Public Demands Recovery Act, 1913, for arrears or rent due in respect of the holding or dues recoverable as such, (c) by exchange, or (d) referred to in the second proviso to section 26‑D, the immediate landlord of the holding or the transferred portion or share may, within two months of the service of notice issued under section 26‑C or 26‑E, apply to the Court that the holding or portion or share thereof shall be transferred to himself." "(2) The application shall be dismissed, unless such landlord at the time of making it, deposits in Court the amount of the consideration money or the value of the property, as the case may be, as stated in the notice served on him, together with compensation at the rate of ten per cent. of such amount." As already indicated these have since been repealed and the new provisions, made in their place, in so far as these are relevant to my present purpose, are as follows:‑ "26‑F. Subsection' (4) ‑ (a). When an application has been made under subsection (1), any of the remaining co‑sharer tenants, including the transferee, if one of them, may within the period referred to in that subsection or within one month of the date of the application, whichever is later, apply to join in the said application; any co‑sharer tenant, who has not applied under either subsection (1) or this subsection shall not have any further power of purchase under this section." "26‑F. Subsection (4) (b). Such application to join as a co‑applicant shall be dismissed unless within such period as the Court may fix, not extending beyond the period referred to in clause (a), the applicant deposits in Court for payment to the applicant or applicants under subsection (1), such sum as the Court shall determine as the share to be paid by him for the purposes of subsection (2). If such deposit is made, the Court shall grant the application to join, and thereafter such applicant shall be deemed to be an applicant under subsection (1)." I shall now proceed to refer to the authorities relied on by the learned Advocate for the petitioner. The first of these is the case of Sidheswari Prosad Roy Choudhry v. Gendu Mia (61 C L J 27). That related to a case in which the landlord applicant made his application within two months of the service of the notice on him under section 26‑C of the Act. He did not, however, deposit with the application which he made on the 14th of February 1930, the amount of the consideration money as he was required to do by the notice which was served on him together with compensation at the rate of 20 % of such amount under the provisions of section 26‑F clause (2) of the Act. In these circumstances, the application, though made on the 14th was treated as one made on the 15th, that is, the date on which the deposit was made, and, it was held inter alia:‑ "Section 26‑F of the Bengal Tenancy Act should be construed liberally, the intention of the Legislature is that the deposit should be made within two months of the date of notice in order to make the application within the purview of section 26 clause (2) of the Bengal Tenancy Act. An application for pre‑emption made under section 26‑F of the Bengal Tenancy Act should not be dismissed on ground that the deposit contemplated by section 26‑F, clause (2) of the Act is made on the day following the day of application if both the application and the deposit were made within time, i.e., within two months of the service of notice under section 26‑C of the Bengal Tenancy Act." The next decision on which reliance has been placed is the case of Jalindra Kumar Chakraborty v. Chandra Kumar and others (38 C W N 616). In this case the landlord filed an application under section 26‑F of the Act on a certain day and also filed along with it Chalans for the deposit of money required; but the Chalans were passed and the deposit of money was made on a subsequent day. Herein also the application was held to be in order. In reaching this conclusion it was observed:‑ "The second point was, ‑as I have said before, that the learned Munsif in view of the provisions of section 26‑F, sub section (2) of the Bengal Tenancy Act, ought to have dismissed all the three applications when the money that was required to be deposited had not been actually deposited. It appears, however, that along with their applications the landlords produced challans in implicate and were ready with the money that was required under the provisions of this Act. The landlords in the circumstances did all that they had under the law to do and if they did all that they had to do towards making a deposit, what they actually did on the date when the applications were filed was in my judgment a deposit that was contemplated by the law to have been made by the applicants. It is to be remembered in this connection that these applications were made long before the last date for making them. It is to be remembered also that the learned Munsiff, after registering the applications, permitted the money to be deposited which was nothing more than an office procedure for passing the challans. As I have observed at the outset, there is no real substance in either of the two points which were urged before me on behalf of the petitioners." Lastly, Mr. Wahab has relied upon the case of Jotis Chandra Biswas and another v. Jadu Nath Sikdar and others (A I R 1937 Cal. 377) wherein, too, the same principle was followed and it was thus observed:‑ ". . . where an application for pre‑emption is made on a certain day, and the deposit of necessary amount is made only on the following day, and if the application is brought to the notice of the Court after the deposit, both the application and the deposit being within two months of the service of notice, the application is quite in order." Having regard to the facts and circumstances of the present case, I see no reason why the principles laid down under the above mentioned authorities should not be applicable to the present case before me as well. Mr. Nurul Haq Bhuiyan however, contends that the decision in each of the cases cited above was mainly based on the consideration that the applicant in each of them was found to have done all that he could do which according to him cannot be said with regard to the present petitioner. Regard being had to the facts, as has already been set out above. I find myself unable to appreciate this argument. The petitioner made his application within time and along with it also submitted Chalan in triplicate, as required, with a prayer for permission to make the necessary deposit. The Chalans were not even received back by him from the office of the Court concerned till after the expiry of the period fixed by the Court for the deposit in question. It is important to note that the petitioner's application under subsection (4) of section 26‑F of the Act was not rejected immediately on the expiry of the said period, that is, on 5‑12‑

59. As a matter of fact, his application was not even put up on that date or to be more accurate before 19‑12‑59, on which date too the learned Munsiff adjourned the same awaiting receipt of the Chalan. Then on 16‑1‑60, he accepted the deposit and added the petitioner as a co‑applicant by his order of date running as follows:‑ "Challan received.‑Money deposited. Petition filed by one Abdul Kadir Pradhania alias Bepari for adding his name as co‑applicant is put up today. Prayer is allowed; amend the main petition and register accordingly. Let the petition be made part of the main petition. Fix 20‑2‑60 for pre‑emptor hearing. Parties to come ready on that date. Petition filed by the petitioner stating that he will not proceed with the case. Heard Pleader of the petitioner. The case be dismissed for non -prosecution against the petitioner and he do get refund of his deposited amount." As the kabala in question was registered on 7‑12‑56, the present petitioner was entitled to seek pre‑emption under section 26‑F of the Act at any time within three years from that date, that is, uptill 7‑12‑

59. So if the learned Munsiff had considered his application on the 5th or for the matter of that on any date upto 7‑12‑59 and even rejected the same without extending time on the ground that the deposit bad not been made within the period fixed by him, it would have still been open to the petitioner to seek his relief by a fresh application. On the other hand, the learned Munsiff took up the matter about 1 months thereafter and actually accepting the deposit made by him and also added him as a co‑applicant. It is thus clear that if the learned Munsiff in thus accepting the deposit and adding the petitioner as a party were now held to have acted illegally or unjustifiably, the petitioner shall be deprived of his valuable right for no fault on his part or to be more precise for some thing for which the Court itself was responsible. In this connection reference may be made to the Full Bench decision in the case of Pudmanand Singh and others v. Anant Lal Misser and others (4 C L J 421). In that case a plaint was presented on the 23rd of June 1902, insufficiently stamped and the plaintiffs were directed by the Court to pay the deficit Court‑fees on the 9th of July in extension of time in that behalf, but the plaint was directed to be readmitted. At the final hearing the plaint was rejected upon objection taken by the defendant that the deficit Court‑fees had not been paid within the time allowed. In these circumstances, it was held that the plaint ought not to have been rejected, but the Court ought to have proceeded with the suit, as if it had been instituted on the date the deficit Court‑fees were actually paid, dismissing such portion of the claim, if any, as might, in this view, be barred by limitation. In delivering his judgment Maclean, C. J., who presided over the Bench observed inter alia:‑ "As a general rule, I should hold that when once the Court has admitted and registered a plaint, it can not subsequently reject it. In the present case, by the course it adopted, the Court must be taken to have extended the time for paying in the Court‑fees up to‑the 9th July. When they were actually paid in and accepted and to have treated this as the time fixed for payment of the deficit. The Court cannot go behind this. To allow it to do so might lead to the gravest injustice. Take the case of a suit for a large property: an insufficient Court‑fee originally paid; time given for payment in of the deficit; the deficit not so paid in but paid in two or three days afterwards; accepted by the Court; and the plaint admitted and registered. At the last moment, after, the incurring possibly of great expense in the conduct of the case, the plaint is rejected on the ground of the deficit not having been paid within the time fixed. If the Court had rejected the plaint in the first instance on the ground that the deficit was tendered too late, the plaintiff could then have brought a fresh action, whilst, very possibly, by the objection being taken at so late a stage such new suit would be barred by limitation. This would be a grave injustice, attributable to the action of the Court itself which lulled the plaintiff into a sense of false security by admitting and registering his plaint." Similarly in the case of Raghunandan Sahay and others v. Ram Sundar Prasad (A I R 1915 Pat. 299) it has been held:‑ "Where a Court accepts deficit Court‑fee after the time fixed for its payment and the plaint is registered, it may be inferred that the Court condones the delay and grants extension, as it has discretion to do under section 148 or section 149 of the Civil Procedure Code for, if it wanted, the Court might have rejected the plaint under Order VII, r. 11." In my opinion, the authorities cited above are fully applicable to the instant case before me. I would accordingly treat the period for deposit fixed upto 4‑12‑59 in this case as extended by F implication till 5‑12‑59 under the order, dated 16‑1‑60, passed by the learned Munsif. 1, therefore, make the rule absolute, set aside the order of the learned appellate Court and restore that of the learned Munsiff. Regard being had to the circumstances, I make no order as to costs of this case. K. B. A. Rule made absolute.