Smt. Gajendra Kumari Devi Vs. Guru Gadaba - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 4. section 9 (1) (b) & (c) (sic) may be quoted--section 9(1): any dispute between the tenant and the landlord as regards--x x x xx(b) failure of the tenant to deliver to the landlord the rent accrued due within two months from the date on which it becomes payable: after the expiry of two months, the tenant shall b' deemed to have failed to pay the rent due.g.k. misra, j.1. in money suit no. 40 of 1963 in the court of the subordinate judge, jeypore, plaintiff obtained a decree on 10-8-68 for rs. 975/ with interest towards arrears of cost and land-cess when the decree was put in execution, defendant filed an objection under section 47, code of civil procedure, that the decree was not executable as it was passed by a court having no inherent jurisdiction over the subject-matter of the suit. the objection was upheld by the courts below. against the appellate order, this miscellaneous appeal has been filed it may be noted that the plaintiff had previously filed another suit in the o. t. r. court for the same claim which was dismissed as being barred by limitation.2. before the learned district judge it was not disputed that there was relationship of landlord and tenant between the plaintiff and the defendant and that the suit was for recovery of arrears of rent and cess and that the o. t. r. court had once dismissed this very claim.3. section 10(1) of the orissa tenants relief act, 1955 (hereinafter referred to as the act) lays down.'subject to the provisions of section 9, all disputes arising between a landlord and a tenant shall be cognizable by the revenue court and shall not be cognizable by a civil court.'section 9 deals with the powers of the collector and in what manner they should be exercised the jurisdiction of the civil court is thus expressly barred.the dispute in this suit, is whether the landlord can recover the arrears of rent from the tenant such a dispute must be determined by the revenue court and not by the civil court. any contention to the contrary is not arguable.4. section 9 (1) (b) & (c) (sic) may be quoted--'section 9(1): any dispute between the tenant and the landlord as regards--x x x xx(b) failure of the tenant to deliver to the landlord the rent accrued due within two months from the date on which it becomes payable: orxxx xxshall be decided by the collector on the application of either of the parties:provided that such application shall be filed before the collector in the prescribed manner within sixty days from the date on which the dispute arises or from the date of the passing of this act. whichever is later.' here again the language is plain and the collector and not the civil court can alone decide such dispute5. mr. rangarao advanced two contentions: (i) under section 9(1) (b), the collector would determine the dispute if the suit is filed on the expiry of two months from the date when the rent accrued due. it does not bar the jurisdiction of the civil court if the suit is filed within three years from the date than the rent accrued due.(ii) section 9(2) makes it clear that the collector would decide various disputes enumerated in section 9(1) (a) to (c) only for the purpose of eviction of the tenant from the land and not merely for deciding those disputes aliunde having no relationship to the question of evictionboth the contentions are unacceptable.6. section 9(1) (b) makes it clear that no cause of action arises for recovery of arrears of rent unless two months elapse from the date on which the rent was payable. after the expiry of two months, the tenant shall b' deemed to have failed to pay the rent due. it is then only the cause of action for filing the suit for recovery of rent arises. the prescription of a period of two months has nothing to do with the jurisdiction of the court. by express provisions, both under sections 9(1) and 10(1) the jurisdiction of the civil court has been ousted. the first contention has no substance.7. section 9(2), so far as is relevant, prescribes that on receipt of an application under sub-section (1) the collector may, after making such inquiries as he may deem necessary order the defendant by a notice served in the prescribed manner and specifying the grounds on which the order is made to cease to cultivate the land. mr. rangarao's contention is that as this sub-section refers to inquiry of an application under sub-section (1) and specifically refers to eviction, the disputes referred to under section 9(1) (a) to (c) cannot be determined by the collector independently but must be determined only with a view to examine the question of eviction. the un-soundness of this argument would be apparent by examining the applicability to section 9(1) (c). the determination of the quantity of the produce payable has nothing to do with the question of eviction. mr. rangarao was constrained to accept the position that on the construction of section 9(1) (c), this argument becomes otiose8. the courts below took the correct view that the civil court had no jurisdiction to pass tke decree under execution. the civil court having no inherent jurisdiction to decide the suit, the suit is a nullity and is inexecut-able.9. in the result, the appeal fails and is dismissed with costs.