TMI Blog1947 (6) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the share conveyed to opposite parties 1-3 Under Section 26(f), Bengal Tenancy Act, and it was stated in the application that he came to be aware of the sale for the first time on 30-11-1943. The application was resisted by the purchasers on a two fold ground. It was said in the first place, that the applicant was not a co-sharer tenant and hence had no locus standi to present the application. The other ground taken was that the application was time barred. 4. The trial Court decided the first point in favour of the petitioner and held that he was a co-sharer tenant and hence entitled to apply for pre-emption Under Section 26(f), Bengal Tenancy Act. On the other point, however, the decision was against him and it was held that as the petitioner was aware of the sale long before November 1943 and did not come to Court within four months from the date of his knowledge, the application was time barred. On appeal this decision was affirmed by the Sub-Judge, Barisal. The petitioner has now come up on revision to this Court. 5. The rule originally came up for hearing before one of us sitting singly and it was referred to a Division Bench. As the case involves certain points o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r cent, of such amount. 9. The rest of the Section is not material for our present purpose. 10. The first question that has been raised before us is whether a co-sharer tenant upon whom no notice of transfer has been served has at all a legal right to pre-empt Under Section 26(f)(1), Bengal Tenancy Act. If the service of notice Under Section 26(c) is a condition precedent to the exercise of the right of pre-emption the present petitioner would be admittedly out of Court, as no notice of transfer was at all issued in this case. 11. If it be held that the right of pre-emption is not dependent on the service of the notice of transfer the next question which arises for consideration is whether the remedy laid down in Section 26(f) is available to a co-sharer tenant, who has not been served with a notice of transfer. Can it be said that in such cases the remedy is by way of an ordinary suit in the civil Court?. 12. If it be decided that for both the notified and the non-notified co-sharer the remedy is the same, viz., by way of application as provided for in the Section, the last and the most important question for consideration is, what is the period of time within which an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate and an independent provision which is not an essential condition of the exercise of the right, but merely-imposes a limit of time with regard to applications filed by co-sharers served with notice of the transfer. The right accrues as soon as the transfer is made. The first point therefore is decided in favour of the petitioner. 15. The second point that is raised on behalf of the opposite party does not seem to present much difficulty. The right of pre-emption exercisable by a co-sharer tenant has been created for the first time by Section 26(f), Bengal Tenancy Amendment Act of 1938, and the Section itself lays down as to how the right is to be enforced. In these circumstances the remedy by way of application as provided for by the Section should be deemed to be exclusive, and the ordinary right of suit must be held to be barred. As Lord Tenterden C.J. observed in Doe d. Bishop of Rochester v. Bridges (1831) 1 B and Ad. 847 at p. 859. Where an act creates an obligation, and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner. If an obligation is created but no mode of enforcing .its perf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The third and the most material point which arises for our consideration is as to what is the period of limitation when an application for pre-emption is made by a co-sharer tenant who has not been served with a notice of transfer Under Section 26(c). 19. Section 26(f)(i) as stated above, imposes a bar of time with regard to applications by co-sharers who are served with notice of transfer. They have got to come within 4 months from the service of notice. The Section says nothing about co-sharers not served with notice though with regard to them as we have said above, the right to apply does not depend upon service of the notice of transfer. Under old Section 26(f) which related to the right of pre-emption exercible by the landlord, the landlord had to come within 2 months of the service of notice under. Section 26(c), Bengal Tenancy Act, and, it was held in a number of cases, all of which were decided by Judges sitting singly that if the landlord was not served with a notice of transfer, he was bound to apply within a reasonable time of his knowledge of the transfer. The first decision on this point is that of D.N. Mitter J. in Surjya Kumar v. Munshi Noab Ali . This was follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nowledge of transfer for the words service of notice as used in the Section. It is well settled that a casus omissus or a mistake made by the framers of the statute would not be remedied by a Court of law. A case which has been omitted is not to be supplied merely because there seems no good reason why it should have been omitted, and the omission appears consequently to be unintentional (vide Maxwell on Interpretation of Statutes, Edn. 7, p. 12). For the same reasons the doctrine of reasonable time which was enumerated in the cases noted above, seems to us to be unacceptable. In case of equitable relief, the Court might refuse the prayer of an applicant who has unduly slept over his rights. This principle can certainly be applied when orders, which are more or less discretionary with the Court to pass, are claimed by a litigant. If the claimant is guilty of undue delay by which the other side has been prejudiced the Court is always competent to refuse to make an order. It cannot be said however that the relief by way of pre-emption as provided for in Section 26(f), Ben. Ten. Act, is a discretionary relief and the Court is at liberty to refuse the prayer if in its opinion it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure Code. The decision of the Bombay High Court in Bai Manekbai v. Manekji ('83) 7 Bom. 213 and that of the Calcutta High Court in Inre Ishan Chunder Roy ('81) 6 Cal. 707 are the earliest authorities on the point. The main reason given in both these decisions is that an examination of all the Articles in Schedule 1, Limitation Act, relating to applications shows that in every one of them the application is made under the Civil Procedure Code. A residuary Article, it is said should be construed ejusdem generis with the other Articles dealing with applications. The other ground put forward is that the preamble to the Limitation Act indicates that it is intended to apply not to all applications but only to certain applications. This view has been adopted in a large number of cases decided since then by the several High Courts in India: Ranbir Singh v. Drig Pal ('94) 16 All. 23 Teluk Singh v. Parsoteen Pershad ('95) 22 Cal. 924, Rahamat Karim v. Abdul Karim ('07) 34 Cal. 672, Abhoya Charan v. Saroja Sundari 2 A.I.R. 1915 Cal. 85, In Hansraj Gupta v. Dehra Dan Mussoori Electric Tramway Corporation Ltd. a question arose as to whether an application in the winding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connection with which the application is made. The entire proceeding in an application Under Section 26(f) is thus regulated by the Civil Procedure Code and we have no hesitation in holding that the residuary Article 181, Limitation Act would be applicable to such applications, except so far as any special provision has been made in regard to them in the Section itself. In Sakti Saran v. Radharaman Mandal it was held by Costello J. that Article 181, Limitation Act, applies to an application Under Section 26J, Bengal Tenancy Act, and no question seems to have been raised that the application was not under the Civil Procedure Code. Even under the old Bengal, Tenancy Act, it was held by a Division Bench consisting of Sir Francis Maclean C.J. and Banerji J. that an application to set aside a sale Under Section 173 was governed by the residuary Article there being no period of time prescribed for such application in the Act itself. 25. We hold that an application by a non-notified co-sharer for pre-emption Under Section 26(f), Bengal Tenancy Act, is governed by Article 181, Limitation Act, and the applicant has three years time from the date of transfer when the right to apply accru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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