- (1.) THIS second appeal is on behalf of the defendant No. 1 in a suit for a declaration that the plaintiffs and the proforma-defendants are the thika tenants under defendants no. 1 in respect of the disputed property. It is stated that one Sukkur Choudhury the predecessor-in-interest of the plaintiffs and the proforma-defendants held a thika tenancy under the defendants No. 1's predecessor. The defendant No. 1 after the death of Sukkur Choudhury in the year 1946 purchased the shares of Ayesha Bibi and halima Bibi in the tenancy. Ayesha bibi was a widow and Halima Bibi was the mother of Sukkur Choudhury. The defendant No. 1 thus purchased a share in the aforesaid thika tenancy. Having purchased some share in the thika tenancy, the defendant No. 1 purchased the interest of the landlord of Sukkur choudhury and the defendant No. 1 thereafter caused a notice to be served under section 9 (2) of the Calcutta thika Tenancy Act. Some proceedings under section 9 (3) were taken by Baitan Bibi, one of the widows of Sukkur Choudhury, who married one Tozamal hussain. The plaintiffs averred that they were not bound by the order under section 9 (2), but the order under section 9 (2) having clouded their title, they applied for a declaration of their tenancy rights under the defendant no. 1. The defence that the defendant no. 1 took was that the suit was barred under section 42 of the Specific Relief act ; and his further defence was that the remedy to the tenants being provided under section 9 (3) of the Calcutta Thika Tenancy Act and the plaintiffs not having applied for that remedy which was their only remedy, the present suit was impliedly barred. It is this latter aspect of the matter which has been urged in this Court and we shall consider only that aspect. Section 9 of the Code of Civil Procedure says, "the Courts. . . . . have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. " The question therefore is whether the cognizance of the present suit is expressly or impliedly barred by any statute. On general principles also the Judicial Committee in the case between (1) Secretary of State v. Mask and Co. , reported in 67 Indian Appeals, 222, at p. 236 observed as follows: "it is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. " It goes further and says, "it is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. "
(2.) THE first question is whether there is any explicitly expressed exclusion of jurisdiction of the Civil Court under the provisions of the Calcutta Thika tenancy Act. For that purpose we shall examine the provisions of the act. Section 5 relates to proceedings for ejectment. It begins by saying, "notwithstanding anything contained in any other law for the time being in force a landlord wishing to eject a thika tenant. . . shall apply in the prescribed manner to the Controller for an order in that behalf. . . " Here it is clear that notwithstanding the provisions contained in section 9 of the Code of Civil Procedure, a landlord wishing to eject a thika tenant must apply to the Controller. Here it has been explicitly expressed that the jurisdiction of the Civil Court will be excluded. Section 9 (1) of the Calcutta Thika tenancy Act relates to abandonment. It says, "when a thika tenant voluntarily abandons his holding without notice to the landlord and without arranging for the payment of his rent as it falls due, the landlord may, at any time after the expiration of a period of two months from the date of such voluntary abandonment, file the notice referred to in sub-section (2 ). . . . . . ". Sub-section (2) provides: "a landlord who intends to enter on a holding under this section shall file a notice in the prescribed form with the Controller, stating that he has treated the holding as abandoned and intends to enter on it accordingly. . . . . " Sub-section (3) provides: "after the publication of the notice under subsection (2), the thika tenant may apply to the Controller at any time not later than the expiration of one month from the date of the publication of such notice for the cancellation of such notice and thereupon the Controller may, on being satisfied after such enquiry as he considers necessary. . . . cancel the notice and direct that the thika tenant shall continue in possession. . . . If the thika tenant does not make any application under this sub-section or his application is rejected, the landlord may enter on the holding subject to the provisions of section 10. " We have to consider this section 9 and see whether the jurisdiction of the Civil Court has been excluded either expressly or impliedly. The Trial Court found that the plaintiffs were not parties to the proceedings under section 9 (3 ). Baitan Bibi's application was rejected but that has not affected the rights of the plaintiffs at all and the Trial Court further found that the order of the Controller passed under section 9 was without jurisdiction so far as the plaintiffs are concerned. It is needless to say that the plaintiffs not being parties to the proceedings, there is no question of jurisdiction over the plaintiffs. All that may be said is that the plaintiffs are not bound by the order under section 9 (3 ). The Trial Court did not consider the last sentence of section 9 (3) which says that if the thika tenant does not make any application under this subsection, the landlord may enter subject to provisions of section 10. The attention of the Trial Court was not drawn to this provision and, therefore, he has not considered it. The Appellate Court has referred to the aforesaid case between (1) Secretary of State v. Mask and Co. , and has come to the conclusion that the plaintiffs not being given an opportunity to place their views before the Controller, the fundamental principle of judicial procedure has been violated and he therefore found that a suit was maintainable. But the answer is in the Act itself. Section 9 (2) does not contemplate any judicial enquiry. The landlord is to file a notice and the controller shall cause the notice so filed to be published in the prescribed manner. There is no provision under subsections (1) and (2) to make an enquiry. The notice is published so that the thika tenants may apply under section 9 (3 ). If they do apply, there would be a judicial enquiry and the question would then arise whether in conducting the enquiry the fundamental principles of judicial procedure have been violated or not. Baitan Bibi filed an application ; that was considered and it was rejected. An appeal was filed the appeal was also dismissed. No judicial enquiry is contemplated at the stage of section 9 (2 ). The plaintiffs never having filed a petition under section 9 (3), there was no question of judicial enquiry and therefore no question of violation of fundamental principles of judicial procedure. Therefore, we are not satisfied with the reasons given by either of the Courts below and we have got to enquire into the matter more fully. So far as Baitan bibi is concerned, she filed an application under section 9 (3); the Controller dismissed that application. Against that, there was an appeal and under the provision of section 27 (6) of the calcutta Thika Tenancy Act "an order under sub-section (4) made by the chief Judge or the District Judge or a person appointed under sub-section (2), as the case may be or, subject to such order, if any, an order made by the Controller under this Act, shall, subject to the provisions of sub-section (5) be final and may be executed by the Controller. " Therefore, so far as baitan Bibi is concerned, there may be an abandonment of the holding and, therefore, the exclusion of jurisdiction may be implied. With regard to that, i shall refer to (1) Secretary of State v. Mask and Co. It was observed in that case that there was a provision for appeal in the Customs Act and it was also observed that there was power of revision and then the Judicial Committee observed, "by sections 188 and 191 a precise and self-contained code of appeal is provided in regard to obligations which are created by the statute itself, and it enables the appeal to be carried to the supreme head of the executive Government. It is difficult to conceive what further challenge of the order was intended to be excluded other than a challenge in the Civil courts. " The observation of the Judicial Committee is that in case of obligations which are created by the statute itself, if there is a provision for appeal, if there is a provision for revision, the provision that the determination shall be final, can mean nothing else than that the jurisdiction of the Civil court should be excluded.
(3.) THE Judicial Committee further considered the well known judgment of willes, J. in (2) Wolverhampton New water Works Co. v. Hawkesford, reported in (1859) 6 C. B. (N. S.) 336 and further found in the aforesaid case of (1) Secretary of State v. Mask and Co. , that the question in the present case fell under the third class stated by willes, J. as follows: "where a liability not existing at common law' is created by a statute which at the same time gives a 'special and particular remedy by enforcing it'. With respect to that class it has always been held that the party must adopt the form of remedy by the statute. " Their Lordships finally therefore concluded that the Subordinate judge was right and the Court have no jurisdiction to entertain the suit. The net result of the decision in (1) Secretary of State v. Mask and Co. is the adoption of the principles in (2) Wolverhampton New Water Works Co. v. Hawkesword. With regard to a case which comes within the third class as referred to in (2) Wolverhampton's case, the Judicial Committee was of opinion that the jurisdiction would be excluded for the reason that the Act created a special obligation not existing at common law. That Act provided a remedy ; that Act further provided that the order of the trial authority could be challenged in appeal. The order could also be challenged in revision and their Lordships said that it. was difficult for them to conceive what further challenge of the order was intended to be excluded other than a challenge in the Civil Courts. ";