P L D 1970 Dacca 577 (PLP)

A. K. M. BAQUER; J.‑--Civil Revision Case No. 242 of 1968 and Civil Revision Case No. 460 of 1967 are being disposed of together by this one judgment as the principles of law involved and also the case‑laws cited are common in both the cases. Both the cases relate to the effect and interpretation of section 6(2) of the East Pakistan Ordinance No. I of 1964 as amended by East Pakistan Ordinance VI of 1964, which is other wise styled as the East Pakistan Disturbed Persons (Rehabilitation) Ordinance, 1964. Section 6(2) thereof reads as under:‑ "(2) No Court shall entertain any suit for the specific performance of any contract relating to the transfer of immovable property belonging to a member of the minority community or for declaration of title or enforcement of mortgage‑security in relation to such property, except with the prior permission, granted after such inquiry as is considered necessary by the Board of Revenue, and no such suit pending on the date of commencement of this Ordinance shall be proceeded with except with such permission." In the case of Civil Revision Case No. 242 of 1968 the petitioner filed the suit against the defendants who were members of the minority community for declaration of title to and partition of some immovable property without obtaining prior permission of the specific authority as required by the above subsection (2), section 6 of the East Pakistan Ordinance No. I of 1964 and the learned Subordinate Judge disposed of the matter with a short Order which is Order No. 30 dated 24-1‑1967 and it runs thus:‑ "Plaintiff files a petition with requisite permission for time to take step. The suit was filed on 1‑9‑65, but the requisite permission was granted by the Board of Revenue on 1‑10‑

65. The suit was thus filed without obtaining prior permission. So the suit is hit by the E. P. Ordinance No. 1 of 1964, as amended by the E. P. Ordinance No. VI of 1964. The plaint be returned to the filing lawyer." An application under Order XLVII, rule 1 of the Code of Civil Procedure for review of the same having proved abortive, the petitioner has come up to this Court for relief. In the case of Civil Revision Case No. 460 of 1967, also the defendant‑opposite‑party No. 1 was a member of the minority community and the plaintiff wanted to prosecute the suit without obtaining prior permission. The learned Subordinate Judge disposed of this matter thus:‑ "In this particular case, no prior permission was obtained by the plaintiff in prosecuting the suit inasmuch as the plaintiff wants to proceed showing the defendant No. 1 (defendant No. 1 being one of the members of the minority community) as one of the defendants. The plaintiff cannot therefore, escape the bounds of Ordinance No. VI of 1966, I, therefore, hold that the suit falls within the mischief of section 6 of Ordinance No. VI of 1964. No prior permission has been obtained by the plaintiff and in fact no such permission was filed along with the presentation of the plaint on 7‑6‑

65. The suit cannot, thus be entertained. Hence it is. That the suit be struck off. Note in the register." The grievance made in both the cases before us is that the learned Subordinate Judge misinterpreted the section and misapplied the same. The specific argument advanced in Civil Revision Case No. 242 of 1964 is ground No. 1 of that petition which reads as under:‑ "For that the learned Subordinate Judge acted illegally and with material irregularity in exercising his jurisdiction in holding that the suit could not be entertained on the basis of the requisite permission granted subsequent to the filing of the suit, although the plaintiff filed the requisite permission during the pendency of the suit and thus complied with the requirement of the Ordinance." The specific argument advanced in Civil Revision Case No. 460 of 1967 is ground No. 4 of the petition which runs thus:‑ "For that if the present suit is hit by section 6 of Ordinance VI of 1964 the learned Subordinate Judge could have returned or rejected the plaint as the case might be and by not doing so and in passing an order for striking off the suit the learned Subordinate Judge acted in violation of the principles of natural justice and of the provisions of the Code of Civil Procedure rendering the proceedings coram non judice." The decision cited on behalf of the petitioners in the two cases before us is that of Dwarikanath Das alias Dwarika Charan Das v. Md. Abdullah (P L D 1960 Dacca 928) in which sections 18 and 19 of the East Bengal Premises Rent Control Act (XVI of 1953) relating to permission to institute suit for ejectment, came in for consider ation under similar circumstances. It was held therein that the suit for ejecting a tenant filed without previously obtaining the permission of the House Rent Controller is maintainable, though the section speaks of "no suit or proceeding by a landlord against a tenant . . . . shall be entertained or proceeded with by any Court unless the landlord has been permitted etc." It does not say that no suit shall be tiled without the permission of the House Rent Controller. Therefore, filing of the suit is not barred. What is barred is the entertainment of the suit by the Court which means that the suit "shall not be considered by the Court" unless a permission from the House Rent Controller has been produced by the landlord. It was also held that when the landlord has after remand obtained an order from the House Rent Controller permitting him to institute a suit, that is sufficient for the entertainment of the suit by the Court. The notable features of this case as cited, which it seems necessary to state, are that the suit was decreed on contest but on appeal by the tenant‑defendant it was sent back on remand for fresh trial after, considering the question whether the suit was maintainable without the sanction of the Rent Controller. When the suit came up for hearing on remand the plaintiff filed the permission obtained from the House Rent Controller to sue the defendant in ejectment. This decision as above, in those circumstances, indicate that permission obtained even as late as after remand, was considered sufficient for the entertainment of the suit by the Court. It may be mentioned here that the Court held as above although the East Bengal Premises Rent Control Act, 1953, in subsection (3) of the section 18 and subsection (2) of section 19 thereof laid down elaborate procedure for obtaining the permission and giving the tenant opportunity for showing cause against the application and also directing the manner in which the Controller was to proceed wish the matter. It is worthy of note that in the two present cases before us which involves Ordinance VI of 1964, there is no provision in the Ordinance itself with regard to the manner of the application for permission or any direction upon the Board to record reasons in support of its orders. It is true that in section 4 thereof some provision and procedure have been laid for obtaining the prior permission for transfer of immovable property belonging to a member of a minority community but no express provision has been made in the Ordinance as to the manner of obtaining the permission or for guiding the permitting authority in the matter of permission for entertainment of a suit in terms of section 6(2) of the East Pakistan Disturbed Persons (Rehabilitation) Ordinance, 1964, which relates to the specific performance of any contract relating to the transfer of immovable property belonging to a member, .of the minority community. The decisions cited by the learned Advocates for the opposite -parties in both the cases are those of Manmarha Nath Poddar v. The Tripura State Bank Limited (11 D L R 204) and Atul Chandra Saha v. The 'Tripura Modern Bank Ltd. (Pakistan Zone) (9 D L R 495). These two decisions came in quick succession, the first one being in April 1967, the next one being in May 1967, and both the cases turn on the interpretation of section 69 of the East Bengal State Acquisition and Tenancy Act‑the relevant portion of which provided as follows:‑ "After the commencement of this Act, no civil Court shall entertain any suit or execute any decree or order against airy, property of any rent‑receiver, for the recovery of any debt which is liable to be scaled down under section 70; until all the interests of such rent‑receiver which are liable to be acquired under this Act have been so acquired and compensations in respect of the acquisition of all such interests have been paid or deposited under section 58." In the case reported in 11 D L R 204 (Manmatha Nath s case) it was held inter alia as follows:‑ "The Legislature has provided in section 69, of the Act that after the commencement of the Act no Court shall entertain any suit, etc. In suits instituted before the commencement of the Act the Court will look into the matter in a prospective sense, and decide whether it could still maintain the suit, the Court will, provided other requisites are fulfilled, stay its hand and stop the whole process, and suspend the progress of the suit, and may, after finding that it is not entertainable return the plaint or keep it in the file during the interregnum ' period." This case as it will appear, related to suits instituted before the commencement of the Act and besides there was no question of any prior permission as in the present case before us. It is simply a case of "no entertainment . . . . . until", and all that it meant was that the matter could not be entertained in the sense of admitted for consideration and disposal until certain future steps had been completed. That is not the case here and the decision does not seem to further the case of the opposite- party in any way. In the decision as reported in 9 D L R 495 (Atul Chandra's case) it was held that for finding out whether a suit is of the nature described in section 69 of the East Bengal State Acquisition and Tenancy Act the Court will start with an initial jurisdiction but as soon as it finds that the suit is of such a nature it has no further jurisdiction to entertain the same and must return the plaint to the plaintiff. To keep the suit, on the file of the Court and to pass orders staying further proceedings in the suit will amount to entertaining or receiving the suit which is prohibited by section 69 of the Act. This again is a case involving section 69 of the State Acquisition and Tenancy Act on which we cannot rely in the present MY cases 'before us for the reasons already stated. Now taking the two Civil Revision Cases before us‑more particularly‑of "return of plaint" to the lawyer in Civil Revision Case No. 242 of 1968 and "suit be struck of" in the other Revision Case No. 460 of 1967, we would like to observe that though the Code of Civil Procedure recognises "return" under certain circumstances, there is no provision for "striking off" as done in the latter case. It appears that the present Ordinance unlike other similar enactments such as Rent Control Ordinance and East Bengal State Acquisition and Tenancy Act has not laid down any provision or procedure for obtaining of the permission or for the guidance of the appropriate authority in the matter of section 6(2) leaving the subject very much at the mercy of the permitting authority. That being the position, we feel inclined to hold that the principles of the decisions in 9 D L R 495 and 11 D L R 204 as discussed before cannot be invoked in aid of interpreting section 6(2) of the present Ordinance. We feel therefore that the filing of the two present suits without permission is nothing but an irregularity which can be very well regularised if the necessary permission is forthcoming at any stage before the A suit is disposed of. Permission no doubt is the sine qua non but it is the sine qua non for jurisdiction only and in the circumstances divulged the stage at which it is forthcoming is not so very material. In such cases if the plaint is filed this should be kept pending there being no bar to the filing of the suit itself as in the case of elections 29 and 30 of the East Bengal State Acquisition and Tenancy Act The moment permission is granted by the authority, the object of the Legislature is obviously carried out so that if the plaint is filed without such permission and such permission presented thereafter, the defect or irregularity in presenting the plaint without such permission is removed. It may be noted 'in the case of Civil Revision Case No. 242 of 1968 in particular that the application for permission in that case was made four months before the filing of the suit. The "return" order, therefore, in the case of Civil Revision Case No. 242 of 1968, is set aside and the Rule in this case is made absolute. Consequent to our views as above in the case of Civil Revision Case No. 460 of 1967 also the order of "struck off" is set aside. It is true that in this case no permission at all has been shown, yet having regard to all the circumstances as discussed, we feel that the Court should give the party an opportunity to produce the permission within a reasonable time and thereafter dispose of the matter in accordance with law. The Rule is Civil Revision Case No. 460 of 1967 therefore is also made absolute. As ordered above, both the rules are therefore made absolute without any order as to costs in any one of these cases and both the cases are sent back on remand to the respective Courts below for dealing with those in the light of the observations made above and for disposal in accordance with law. MAHMOOD HUSSAIN, J.‑--I agree. A. E. Rules made absolute. Cases remanded.