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Radhacharan Das Babaji Vs. Bhima Patra - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 45 of 1963
Judge
Reported inAIR1966Ori1
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9 and 151 - Order 7, Rule 7 - Order 41, Rules 27 and 33; Tenancy Law; Orissa Tenants Relief Act, 1955; Orissa Tenants Relief (Amendment) Act, 1962 - Sections 11A, 11A(1) and 11A(2)
AppellantRadhacharan Das Babaji
RespondentBhima Patra
Appellant AdvocateR.N. Misra, ;R.C. Patnaik and ;B. Harichandan, Advs.
Respondent AdvocateY.S.N. Murty, Adv.
DispositionAppeal allowed
Cases ReferredMohammed Abu Ahmed v. Col
Excerpt:
.....this submission of the learned counsel is well founded. it is settled law that the exclusive jurisdiction of the civil court is not to be readily inferred but such exclusion must either be' explicit or clearly implied. and it is also true that it was just to meet the hard ship that the decision of the supreme court in air 1962 sc 547 was supposed to have entailed that the new section it-a came to be enacted with a view to bar the jurisdiction of the civil court in dispute like this, and to empower the collector to adjudicate finally till disputes relating to the existence of relationship of landlord and tenant. if the legislature did intend that which has not expressed clearly much more, if the legislature intended something very different, if the legislature intended pretty nearly..........but his claim is that he is in any case at least a statutory tenant within the meaning of the orissa tenants protection act 1948 (orissa act iii of 1948). as such he pleads that he is protected from eviction under the provisions of the aforesaid orissa tenants protection act and the orissa tenants relief act, 1955 (orissa act v of 1955); and that the civil court has no jurisdiction to try the suit.3. originally, the trial court relying on the principle of law as laid down by this court in the case of pandab bissoyi v. magiti sasamai,air 1957 orissa 17 held that the civil court had no jurisdiction to decide whether the defendant was a statutory tenant under the orissa tenants relief act. it therefore dismissed the suit. but that decision was reversed in appeal by the learned.....
Judgment:

Ahmad, C.J.

1. This miscellaneous appeal in view of some importance of the point of law involved in it, has been under the order dated the 25th April, 1964 directed to be placed before a Division Bench. It is therefore now before us for hearing.

2. The appeal is by the plaintiff' and it arises out of a suit for declaration that the respondent-defendant is not a 'tenant' of the lands in suit and for recovery of possession thereof. It is no more in dispute that the respondent-defendant is not an 'occupancy raiyat' in respect of the suit lands; but his claim is that he is in any case at least a statutory tenant within the meaning of the Orissa Tenants Protection Act 1948 (Orissa Act III of 1948). As such he pleads that he is protected from eviction under the provisions of the aforesaid Orissa Tenants Protection Act and the Orissa Tenants Relief Act, 1955 (Orissa Act V of 1955); and that the Civil Court has no jurisdiction to try the suit.

3. Originally, the trial court relying on the principle of law as laid down by this Court in the case of Pandab Bissoyi v. Magiti Sasamai,AIR 1957 Orissa 17 held that the Civil Court had no jurisdiction to decide whether the defendant was a statutory tenant under the Orissa Tenants Relief Act. It therefore dismissed the suit. But that decision was reversed in appeal by the learned Subordinate Judge who held that the Civil Court had jurisdiction to decide the question as to whether the relationship of landlord and tenant existed between the parties. Accordingly it remanded the suit for re-trial. Against this order of remand there was an appeal taken to the High Court. But in the meantime while thai appeal was pending the aforesaid decision of this Court reported in AIR 1957 Orissa 17 was reversed by the Supreme Court by its judgment dated the 20th Sept. 1961 which is reported in Magiti Sasamai v. Pandab Bissoi, AIR 1962 SC 547. Their Lordships of the Supreme Court came to the conclusion that it would be difficult to uphold the argument that the dispute as regards the existence of relationship of landlord and tenant falls to be determined by the Collector under Section 7(1) of the Orissa Tenants Protection Act, 1948, and accordingly beld that the Civil Court had jurisdiction to decide whether the respondent defendant is a statutory tenant under the Orissa Tenants Protection Act and the Orissa Tenants Relief Act. In pursuance of this decision of the Supreme Court the High Court thereafter by its judgment dated the 4th January 1962 upheld the order of remand passed by the learned Subordinate Judge and dismissed the appeal

4. Thus the case came back to the original Court for trial on merits, and it held that 'the defendant is not a tenant in continuous possession of the suit land and as such is not protected under the Orissa Tenants Protection Act, or the Orissa Tenants Relief Act.' Thus the suit was this time decreed by the trial court. That led to the appeal bv the respondent defendant. But before that appeal could be taken up for hearing, the Orissa Legislature passed the Orissa Tenants Relief (Amendment) Act 1962 (Orissa Act 29 of 1962) and thereby a new Sub-section 11-A was introduced in the Orissa Tenants Relief Act which came into force on the 30th October 1962 This new Section (11 A) contains a number of subsections But for the purposes of this case, the sub-sections which are relevant are only Sub-sections (1) and (2). These two subsections read as follows:

'11-A--(1) Notwithstanding anything to the contrary in any of the other provisions of the Act. the Collector shall decide all disputes regarding the existence of the relationship of land-lord and tenant arising in the course of any proceeding under this Act

2. Where a dispute of the nature specified in Sub-section (1) is raised or is pending before the Collector, no proceeding relating to such dispute shall be maintainable or be continued in any Civil Court, and the decision of the Collector shall, subject to the provisions of Sub-sections (4) and (5) be final.

5. No doubt as a rule the function of an appellate Court is to find out as to whether the judgment appealed against was correct onthe date it was made and if it finds that the judgment was correct the appeal has to he dismissed. In case, however it is brought to the notice of the appellate Court that there were some subsequent events or legislation in regard to the matter in controversy between the parties, the appellate court will lake judicial notice of those subsequent events and the change in the law, to quash or shorten the litigation between the parties and to do complete justice between them--Ramgovind Singh v. Ramranbijai Singh, AIR 1968 Pat 279 and Attorney General v. Birmingham, Tame and Rea District Drainage Board, 1912 AC 788. Accordingly, before the learned Subordinate Judge, when the appeal was taken up for hearing, it was, on behalf of the respondent-- defdt. submitted that in view of this subsequent amendment made in 1962 in the Orissa Tenants Relief Act. the decision of the Supreme Court in AIR 1962 SC 547 was no longer applicable to the present suit and the question of its maintainability in the Civil Court had now to be judged in the light of the new provision made in the aforesaid Act. The learned Subordinate Judge accepted this contention made on behalf of the respondent-defendant and considered the question as to whether in the light of the new Section 11-A of the Orissa Tenants Relief Act, the suit as constituted was at all maintainable in the Civil Court. In his opinion the provisions of the new Section 11 A empowering the Collector to adjudicate finally the dispute regarding the existence of the relationship of landlord and tenant were retrospective and as such the suit under appeal before him was also attracted by the provisions of that new section. This conclusion of the learned Subordinate Judge was based on two considerations

(i) That the alteration introduced by the aforesaid amending Act. being a change in the law of procedure operates retrospectively and unlike the law relating to vested rights. is not merely prospective: and

(ii) That the word 'raise' as used in Sub-section (2) of Section 11-A does not imply that it refers exclusively to the dispute raised before the Collector alone, and not to a dispute raised in the Civil Court or any other court Accordingly, he allowed the appeal and directed the plaint to be returned to the plaintiff for presentation in the proper court. And it is against this judgment that the plaintiff has now come in appeal to this Court.

6. Mr K N. Misra appearing for the plaintiff appellant before us has strongly challenged the aforesaid finding of the lower appellate Court The submission made by the learned Counsel is that the change in law brought about by the new Section 11-A is not a simple change in law of procedure, but a change affecting the jurisdiction of the Civil Court inasmuch as thereby a new exclusive forum has been set up for the adjudication of disputes referred Io therein. Therefore the general rule of construction that a law of procedure operates retrospectively has no valid application to the construction of the newsection. In my opinion this submission of the learned counsel is well founded.

It is obvious both from the history of this new legislation as also from the terms of the new Section 11-A that it has been enacted expressly with the intent to bar the jurisdiction of the Civil Court in a dispute relating to the existence of relationship of landlord and tenant, and to empower the specific tribunal as provided therein, to decide such disputes finally. Therefore, it is not a simple change made in the law of procedure alone, but a change which affects the jurisdiction of file Civil Court. That being so, the true rule of construction that is attracted here in determining the scope and effect of the aforesaid two sections of the new Section 11-A as pointed out by their Lordships of the Supreme Court in AIR 1962 SC 547 is that:

'If a statute purports to exclude the ordinary jurisdiction of the Civil Courts it must do so either by express terms, or by the use of such terms as would necessarily lead i the inference of such exclusion.'

This is also so laid down by the Privy Council in Secy, of State v. Mask & Co., 67 Ind App 222: AIR 1940 PC 105 wherein it has been observed:

'It is settled law that the exclusive jurisdiction of the Civil Court is not to be readily inferred but such exclusion must either be' explicit or clearly implied.'

Accordingly, the view taken by the Court below that the change brought about by the new Section 11-A of the Orissa Tenants Relief Act is but a simple change in the law of procedure is erroneous and cannot be supported in law

7. That however by itself does not conclude the controversy for it is quite understandable that though the new Section 11-A may not be a simple change in the law of procedure yet it may have been intended to operate retrospectively, and thereby to bar the jurisdiction of the Civil Court in such a matter, even as to proceedings and disputes which were then already pending in the Civil Court at the time when the aforesaid amending Act came into force. This takes us to the second ground relied on by the lower appellate court in support of the conclusion it has come to,

8. Now, it is not controverted that so far as Sub-section (1) of Section 11-A of the Orissa Tenants Relief Act is concerned that does create an exclusive jurisdiction in the tribunal named therein, to decide all disputes as to the existence of the relationship of Landlord and tenant arising under the Act. But there is no expression or word used therein which either expressly or by necessary implication can connote that the exclusive jurisdiction created thereunder in the tribunal is retrospective. The retrospective character of that provision which can, if at all. be made applicable to disputes, which were then already pending in the court of law is to be found in Sub-section (2) of that section Thereunder however, its retrospective operation is confined only to such a dispute of the class as 'is raised or is pending before the Collector' or in other words, theprovision made therein that 'M' proceeding relating to such dispute will be maintainable or be continued in any Civil Court' is to apply only to such a dispute as 'is raised or pending before the Collector''

9. It is the admitted case of the parties that at the time when the new Section ll-A was enacted the present dispute was not pending before the Collector and has not been even thereafter till now, raised before the Collector. and the court if any wherein it has been so far pending is only the Civil Court. But what was canvassed in the court below on behalf of the respondent-defendant and has been accepted by the learned Subordinate Judge is that though it was so, but the expression ''is raised' as used therein is not qualified by the words 'before the Collector' and as such it is wide enough to attract even such a dispute as here.: and therefore at least now in view of this new provision of Sub-section (2) of Section 11-A the Civil Court has ceased to have any jurisdiction over this dispute. In my opinion, Mr. Misra has rightly submitted that the word 'raised' as used in Sub-section (2) has to be read in the light of its context and not independent of it; and if that word is so construed it means 'raised before the Collector' and not before any authority or tribunal other than the Collector. Had it not been so, the concluding portion of Sub-section (2) of Section 11-A could not have provided that 'the decision of the Collector shall, subject to the provisions of Sub-sections (4) and (5) be final'' The expression 'the decision of the Collector shall ... be final' presupposes that the Collector was in seisin of the dispute and unless therefore the sub-section is so read as also to mean that if there is a dispute raised in any Civil Court it would automatically stand transferred to the court of the Collector, there can be no possibility of any decision being given in respect thereto by the Collector which is to be final thereunder. But Sub-section (2) does not make any such provision either expressly or by necessary implication. Therefore there can be no escape from the conclusion that the word 'raised' as used in Sub-section (2) refers to a dispute as raised before the Collector and not before any other authority or court. It is true that in the case of legislation which has a beneficial object, as the one in the present case, its material provisions have to be liberally construed as submitted by the learned Advocate General Appearing for the respondent-defendant; and It is also true that it was just to meet the hard ship that the decision of the Supreme Court in AIR 1962 SC 547 was supposed to have entailed that the new Section It-A came to be enacted with a view to bar the jurisdiction of the Civil Court in dispute like this, and to empower the Collector to adjudicate finally till disputes relating to the existence of relationship of landlord and tenant. But that cannot necessarily lead to the conclusion that the Legislature in enacting Sub-section (2) of the new provision intened to make it retrospective not only with regard to those disputes of this character which were then pending or were to be raised thereafter' before the Collector, but also in respect ofthose which had been then pending only in the Civil Court. In my opinion, the retrospectivecharacter of the legislation, as is laid down in Sub-section (2) of Section ll-A applies only to the disputes of this type which were then pending before the Collector, or were to he brought before him thereafter. In such cases no doubt it will have a retrospective effect on the jurisdiction of the Civil Court inasmuch as in such cases no proceedings relating to such disputes shall be thereafter maintainable or to be con tinned in the Civil Court.

10. The learned Advocate General, in support of the view taken by the learned Subordinate Judge, has drawn our attention to the statements of objects and reasons attached to the Bill relating to the enactment of Section ll-A. In my opinion, that does not throw any light on the point which is now under discussion before us: and in any case there is no ambiguity in the words of Section ll-A which can justify any reference to if. The words as used therein arc perfectly intelligible and are used in their natural and plain meaning Therefore, the statement of objects and reasons have no relevancy in construing the true scope and effect of this provision

As observed by Lord Broughman in Crawford v. Spooner. (1846) Moo P. C. 1: 13 ER 582:

'the construction of the Act must he taken from the bare words of the Act. We cannot fish out what possibly may have been the intention of the Legislature; we cannot aid the Legislature's defective phrasing of the Act; we cannot add any by construction make up deficiencies which are left there. If the Legislature did intend that which has not expressed clearly much more, if the Legislature intended something very different, if the Legislature intended pretty nearly the opposite of what is said, it is not for the Judges to invent some thing which they do not meet with in the words of the text (aiding the construction of the text always of course by the context); it is not for them to so apply a meaning, for in reality it would be supplying it. The true way in these cases is to take the words as the Legislature has given them, and to take the meaning which the words given naturally imply unless where the construction of those words is either by the preamble or by the context of these words, in question, controlled or altered, and therefore if any other meaning was intended than that which the words purport plainly to import let another Act supply that meaning and supply the defect in the previous Act'

To the same effect is the observation made by Lord Halsbury in Mersey Docks and Harbour Board v Hemlerson. (1888) 13 A C 595 while explaining the rule dealing with a cast of casus(SIC)

11. No. doubt, as pointed out by the learned Advocate General, there is an observation made in Mohammed Abu Ahmed v. Col lector of Cuttack. 30 Cut LT 509 to the effect that

'in view of the judgment of the Supreme Court in ATR 1962 SC 547 the legislature found it necessary to intervene to oust the jurisdictionof the Civil Court to determine the dispute about the existence of the relationship of landlord and tenant and hence the amending Act 29 of 1962 was passed.'

But this observation is not to mean that Section. 11-A was intended to be retrospective even to he extent as canvassed by the learned Advocate General. The Court below it seems, in taking the view it has come to is very much influenced by the consideration that the parties to the dispute may be unnecessarily put to inconvenience in case the provision of sub-section (2) is construed otherwise. But the question of inconvenience cannot be helped if the provision as made is clear and unambiguous. The remedy for it is legislation and not a construction which is not borne out by the language used. The intention of the legislature in enacting the Sub-section (2) of Section 11-A seems to be that if a dispute of this character was then pending exclusively in the Civil Court, that would not be disturbed thereby, and in that case it will be open to the parties either to get the adjudication done there, or to raise it afresh, if any of them so likes, before the Collector and thereby to get the jurisdiction of the Civil Court in respect of that matter ousted. But so long as that is not done and the dispute is not raised before the Collector, the Civil Court will not be deprived of its jurisdiction over it.

12. For these reasons, the appeal has to be allowed, the judgment and decree of the lower court has to be set aside and the case has to be sent back to the Court below for its disposal in accordance with law.

But in the circumstances of the case there will be no order for costs.

Barman, J.

13. I agree.


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