Skip to content


Mahadev Prosad Khemka Vs. Hanuman Seba Trust - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1923 of 1951
Judge
Reported inAIR1954Cal16,57CWN514
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 22 - Order 22, Rule 4; ;Tenancy Law; ;Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940 - Section 3; ;Limitation Act, 1908 - Schedule - Article 177; ;Government of India Act, 1935
AppellantMahadev Prosad Khemka
RespondentHanuman Seba Trust
Appellant AdvocateRanjit Kumar Banerjee and ;Dhires Chandra Chakravarti, Advs.
Respondent AdvocateA.C. Gupta, ;Provat Kumar Sen Gupta and ;Amiya Kumar Chatterjee, Advs.
Cases ReferredBrij Indar Singh v. Khanshi Ram
Excerpt:
- .....making of an application by the party. the argument of mr. gupta that the stay was not a statutory stay brought about by the force of a legislative act but a stay brought about by an order of the court, thus recoiled on itself, for it left the possibility of an application for substitution open.14. mr. gupta sought to meet that difficulty by advancing an extremely attractive argument. he referred us to the preamble of the act of 1940 and invited us to hold that the act contemplated a total stay of all proceedings, whether on the part of the court or on the part of the parties. the reason for the enactment of the act of 1940 is stated in the preamble to be that 'it is expedient, pending the enactment of further legislation, to provide for the temporary stay of certain suits and.....
Judgment:

Chakravartti, C.J.

1. This case has been the occasion for some strange orders in the Court below and an extremely interesting argument before us.

2. On 23-6-1945, the opposite party, Hanuman Seba Trust brought a suit against one Rameswar Khemka for his ejectment from a piece of non-agricultural land and for damages. The latter relief was asked for on the footing that Rameswar had been occupying the land as a non-agricultural tenant for a limited period, but in spite of the period having expired he had been continuing in possession.

3. At the time the suit was brought, the Bengal Non-agricultural Tenancy (Temporary Provisions) Act, 9 of 1940 was in force and by reason of the provisions of Section 3 of that Act, every suit for ejectment of a non-agricultural tenant, other than such suits brought on account of non-payment of rent, was liable to be stayed during the period that the Act might continue to be in force. Because of that provision, the learned Munsif decided that the ejectment part of the suit before him had to be stayed, but the damages part could be dealt with. It is not easy to see how the learned Munsif could have come to that decision, because it is not easy to see what the liability for damages would be until the question of ejectment had been gone into and it had been decided that the defendant had been overstaying the period of his lease and was a trespasser. However, those considerations did not prevent the learned Munsif from proceeding with the claim for damages and ultimately he passed a decree on 4-6-1946. He dealt with both the ejectment part and the damages part of the suit by a single order and with regard to the ejectment part the order was that the suit 'be stayed'.

4. The decision of the learned Munsif was upheld in appeal the judgment in the appeal being delivered on 13-3-1947.

5. The opposite party put the decree for damages into execution and during the pendency or that proceeding, Rameswar Khemka died on 7-4-1948. The proceeding appears to have been a very slow moving one, because on 15-5-1949, when the West Benhal Non-agricultural Tenancy Act (20 of 1949) came into force, it was still pending. About three months thereafter, on 1-8-1949, the opposite party made an application under Order 21, Rule 22 for a notice on the petitioner to snow cause why the decree for damages should not be executed against him. The petitioner it may be stated here is the executor under a Will left by Rameswar. The petitioner did not resist execution of the decree against him & deposited the entire amount on 20-2-1950. Nothing happened thereafter till 20-11-1950 when an application was made by the opposite party, praying that the order staying the suit might be vacated and the petitioner might be brought on the record in the place and stead of Rameswar Khemka under Order 22, Rule 10, Civil P. C.

6. The application was opposed by the petitioner on the ground that the suit had long abated, inasmuch as no application for substitution had been made within ninety days of the death of Rameswar Khemka. The learned Munsif overruled that objection, but did so on two grounds which are so curious that Mr. Gupta appearing for the opposite party made no attempt whatsoever to support them. The learned Munsif held that the decree for damages passed in the suit was 'some sort of a preliminary decree', and as the death of Rameswar had taken place after the decree had been passed, no question of substitution under Order 22, Rule 4 arose. The learned Munsif further held that as Order 22, Rule 4 did not apply the case was one coming under Order 22, Rule 10 applications under which could be made at any time. On those two reasons the learned Munsif held that the suit had not abated and that the opposite party was entitled to have the petitioner brought on the record bv the application it had made. It is against that order that the present Rule was taken out.

7. In support of the Rule it was contended that 1he learned Munsif had been altogether in error in holding that Order 22, Rule 4 did not apply to the case, and that on the facts the suit had plainly abated. This objection was sought to be met on behalf of the opposite party by three ingenious arguments.

8. It was contended, in the first place, that the proceedings under Order 21, Rule 22 were in effect proceedings for substitution and since the petitioner had been brought on the record in the place of Rameswar Khemka in the execution case, he had thereby been brought on the record of the suit itself. Reference was made to the decision of the Privy Council in -- 'Brij Indar Singh v. Khanshi Ram' AIR 1917 PC 1 156 (A), where dealing with a case in which a substitution had been made in an interlocutory matter in the course of a suit, their Lordships observed that substitution in one part of the case was a good substitution for all parts. Mr. Gupta contended that fur the same reason substitution ox the petitioner in the execution proceeding was good substitution for the suit as well, and accordingly no question of abatement of the suit could possibly arise. Mr. Banerjee's reply to this argument was that although for certain purposes an execution proceeding was a continuation of the suit, it was not so for purposes of substitution. He pointed out Order 21, Rule 12 specifically provided that Rules 3 and 4 would not apply to execution proceedings.

9. In my opinion there are at least three reasons why Mr. Gupta's contention cannot be accepted. In the first place, it will appear from the dates which I have recited that even assuming that an application under Order 21, Rule 22 could do duty for an application under Order 22, Rule 4 it could not do so in the present case, because before the application under Order 21, Rule 22 was made, the suit had already abated. Rameswar, I may recall, died on 7-4-1948, and the application under Order 21, Rule 22 was not made till 1-8-1949. I would concede that it might be said that although that would be the position if the matter was agitated now, the objection was no longer available to the petitioner, since an order for substitution had actually been made. Even so, however, the opposite party must reckon with a further objection. I would concede that if an application under Order 21, Rule 22 could be treated as an equivalent of an application under Order 22, Rule 4 substitution in an execution proceeding might, on the analogy of the case decided by the Privy Council be treated as good substitution for the suit as well.

It is true that Order 22, Rule 12 specifically excludes execution proceedings, but that to my mind only means that failure to bring the representatives of a party on record after the death of such party will not entail abatement of the proceeding. If, in fact, a substitution is made in a proceeding under Order 21, Rule 22 and that substitution could in law be treated as an equivalent of a substitution under Order 22, Rule 4, the objection that Order 22, Rule 12 specifically excludes execution proceedings would not, to my mind, suffice to establish that there had been no good substitution so far as the suit was concerned. But the real answer to Mr. Gupta's contention is that the question to be decided on an application under Order 21, Rule 22 is entirely different from the question which calls for decision under Order 22, Rule 4. Execution can be taken out against any one of the judgment-debtors or at least against any one of the legal representatives of a deceased judgment-debtor. When one such legal representative receives a notice under Order 21, Rule 22, the only question which calls for decision is whether he is one of the representatives of the deceased judgment-debtor.

It is not necessary for the validity of the execution proceeding that the total body of the legal representatives of the deceased judgment-debtor should all be proceeded against at the same time, and consequently no question as to whether the entire interest of the deceased judgment-debtor is being represented by the person against whom the decree is sought to be executed arises under Order 21, Rule 22. The position under Order 22, Rule 4, however, is entirely different, because in order that the suit may continue to be validly constituted it is necessary to secure a representation of the totality of the interest of the deceased defendant. The question under Order 22, Rule 4, therefore, is whether all the legal representatives of the deceased defendant on whom his liability to be sued has descended are being brought on the record. That being so and the subject matter of the enquiry under Order 21 Rule 22 being entirely different from the subject matter of an enquiry under Order 22 R, 4 it is clear that when a representative of a deceased judgment-debtor is brought on the record under Order 21 Rule 22 for the purposes of the execution of an interim decree, the fact that he was brought on the record will not operate to effect his substitution in the suit itself. Nor will the fact that he was brought on the record of the execution proceedings be decisive of the question as to whether representation of the entire interest of the defendant has been secured.

It therefore appears to me that although substitution in one part of a suit may be a good substitution for all parts, and although even substitution in execution proceedings, provided it is substitution in the proper sense of the term, may be good substitution in the suit itself -- though I do not decide the point -- it can by no means be said that the mere bringing on the record of a representative of the deceased judgment-debtor under Order 21, Rule 22 will operate as proper substitution of all the legal representatives of a deceased defendant in the suit itself so as to prevent abatement of the suit. I am accordingly of opinion that the opposite party cannot rely on the proceeding under Order 21 Rule 22 successfully for the purpose of meeting the objection of the petitioner.

10. It may also be pointed out that in a proceeding under Order 21, Rule 22 the legal representative sought to be proceeded against would not be entitled to raise the questions which are proper to Order 22 Rule 4. Such questions would be entirely foreign to a proceeding under Order 21 Rule 22. That again is an additional reason why the bringing on the record of a representative under Order 21 Rule 22 cannot be taken as a concluded substitution of the legal representatives of the defendant in the suit itself so as to exclude all further argument or objection on the point.

11. Mr. Gupta contended in the next place that, in any event, the present application of his client was entitled to succeed, because since 4-6-1946, the suit had remained stayed with the consequence that his client could not make an application for substitution. In support of that argument Mr. Gupta pointed out that under the provisions of Section 3, Non-agricultural Tenancy (Temporary Provisions) Act, a suit for ejectment against a non-agricultural tenant was not automatically stayed but was required to be stayed by an order of the Court. If so, Mr. Gupta continued, the order for stay required to be vacated by the Court and till it was vacated everything in or concerning the suit was bound to remain in suspension.

12. The reason why Mr. Gupta attached importance to the point that the stay under Section 3 of the Act of 1940 was not automatic was that by the Act of 1949, the Howrah Municipality was excluded from the operation of the Act. The land in the present case lies within the municipal limits of Howrah which were subject to the operation of the original Act of1940. Section 1 (2) (c) of the new Act which repealed the earlier Act provided for the exclusion of the Howrah Municipality and consequently if the stay under the old Act was automatic, its termination also would automatically follow as soon as the operation of the Act was withdrawn from the subject matter of the suit. The point in Mr. Gupta's submission was that the stay had been brought about by an order of the Court and therefore would continue to be operative so long as there was not another order vacating the stay in spite of the fact that in the meantime the statutory bar had been removed.

13. I am inclined to agree with Mr. Gupta that Section 3 of Act 9 of 1940 had not the effect of bringing about an automatic stay of every suit for ejectment of a non-agricultural tenant. The section provides that only suits for the ejectment of a non-agricultural tenant could be stayed and even of such suits, those which were based on an allegation of non-payment of rent would not be stayed. It is thus clear that whether or not a particular suit came within the purview of the section would require close examination and a decision of the Court. A suit while involving a prayer for the ejectment of a non-agricultural tenant might include other prayers as well, or being a suit only for the ejectment of a non-agricultural tenant, it might be based on grounds-some of which were within Section 3 and some of which were excepted. In those circumstances, it appears to me that Mr. Gupta was right in contending that Section 3 contemplated an order of the Court. It is not without significance that the words of the section were not that every suit for ejectment of a non-agricultural tenant 'shall stand stayed'. The words are 'shall be stayed' which in the context clearly mean shall be stayed by the Court by an order made in that behalf.

If the original stay had thus to be brought about by an order of the Court, I would concede that the stay would also cease only by an order of the Court and not otherwise. Had therefore this been the only consideration, Mr. Gupta's argument would have to be accepted, but there is another difficulty in his way. On Mr. Gupta's argument, the stay was a stay by an order of the Court. The question, therefore, arises whether while a suit is under stay by reason of an order made by the Court, even applications for substitution arc excluded and cannot be made. Mr. Gupta very fairly conceded that he could not go the length of arguing that when a suit was styed by an order of the Court, even interlocutory proceedings of more or less a formal character could not be taken or that an application for substitution could not be made. It is noticeable that what would be stayed would be the suit and not the making of an application by the party. The argument of Mr. Gupta that the stay was not a statutory stay brought about by the force of a legislative act but a stay brought about by an order of the Court, thus recoiled on itself, for it left the possibility of an application for substitution open.

14. Mr. Gupta sought to meet that difficulty by advancing an extremely attractive argument. He referred us to the preamble of the Act of 1940 and invited us to hold that the Act contemplated a total stay of all proceedings, whether on the part of the Court or on the part of the parties. The reason for the enactment of the Act of 1940 is stated in the preamble to be that

'it is expedient, pending the enactment of further legislation, to provide for the temporary stay of certain suits and proceedingsfor ejectment of certain non-agriculturaltenants.'

Mr. Gupta pointed out that to an Act enacted for a purpose like that stated in the preamble of the Act of 1940, ordinary considerations should not apply, but the Court ought to adopt a new mode of construction called for by the ever fluctuating conditions of modem times which necessitated such legislation. It was pointed out that the Legislature was obviously treating the question of the ejectment of non-agricultural tenants as a major problem and was taking time to make up its mind as to what its legislative policy should be.

Further, in order that any legislative policy subsequently embodied in an Act might not prove abortive, it was staying all suits and proceedings for ejectment. Mr. Gupta contended that those circumstances made it perfectly clear that the stay contemplated was a total stay. It was not reasonable to presume that while the Legislature was itself taking time to make up its mind as to what its policy should be regarding suits for ejectment, it was at the same time intending that nevertheless the parties must go on taking the steps required by the ordinary law and incurring trouble and expenditure that might ultimately , be found to have been wasted. Ultimately the Legislature might enact any provision regarding the suits for ejectment against non-agricultural tenants. It might provide that such suits would stand dismissed or might enact provisions bringing about new types of relationship between landlord and tenant. The Legislature could not have intended that pending it's decision on the ultimate fate of such suits and proceedings, the ordinary steps required by the ordinary law must nevertheless be taken.

15. As I have said already, the argument is an extremely attractive one and if I found that it would suffice to secure for Mr. Gupta's client the relief it needed, I would give it very serious consideration. If the contention be correct and if what was brought about by Section 3 of the Act of 1940 was a total stay, one effect would be that a Provincial Act was putting a Central Act, that is the Limitation Act, out of action. This seems fairly clear, because in the absence of anything else, the provisions of the Limitation Act would apply and those provisions, read with the Code of Civil Procedure would cause an abatement of a suit where the legal representatives of a deceased defendant were not brought on the record within the time limited by law. If Section 3 of the Bengal 'Act relieved the parties of the necessity of making an application for substitution within time and at the same time obviated abatement, it could do so only by suspending the operation of the Limitation Act. Mr. Gupta pointed out that not by implication only but also by an express provision had the Bengal Act interfered with the Limitation Act and he referred us to Section 7.

On the general question Mr. Gupta submitted that the Bengal Non-agricultural Tenancy (Temporary Provisions) Act was in pith and substance a piece of legislation relating to 'land, that is to say, right in or over land, land tenures, including the relation of landlord and tenant', which was item No. 21 in List II of Schedule VII, Government of India Act, 1936. Had it been a piece of legislation, so far at least as the present matter was concerned relating to Civil Procedure including the Law of Limitation it would be legislation on a subject mentioned in item 4 of the Concurrent List and would not be a valid piece of legislation,' inasmuch as it impinged on a Central Act and inasmuch as the consent of the Governor-General had not been taken; but if it was in pith and substance a legislation on the subject mentioned in item 21 of the Provincial List, it could validly affect a Central Act if the invasion was only incidental and therefore there was no difficulty in holding that Section 3 of the Act of 1940 could validly operate to suspend even the law of Limitation.

16. Assuming that this argument is correct, and I am not saying it is not, even then it would take Mr. Gupta's client only up to 15-5-1949 when the Bengal Non-agricultural Tenancy Act of 1949 came into force. Obviously, one could not have it both ways. One could not say that the stay was a stay under the order of a Court, and therefore no step could be taken till there was another order vacating the stay, and one could not at the same time say that the stay was a total stay under a statute which suspended all proceedings on the part of all parties, including the Court. Mr. Gupta could claim the enlarged effect of a total stay only on the footing that the stay was a statutory stay; but such stay in the present case must be taken to have terminated on 15-5-1949.

On that date, as I have stated, the Act of 1949 came into force and by that Act the area within the limits of the Howrah Municipality was released from the operation of the special law. If, therefore, after 15-5-1949, the stay was only a stay under an order of the Court and if during the period of such a stay an application for substitution could be made, as Mr. Gupta conceded, there was no excuse for his client not doing so. In the end, he did make an application on 20-11-1950, for vacating the stay and for bringing the petitioner on the record. In my opinion, in any event, he could and should have made that application immediately after 15-5-1949 and therefore even assuming that he was not required to make an application between 7-4-1948, when Rameswar died and 15-5-1949, when for the first time the Howrah Municipality was released from the operation of the Act, there was no longer any reason for his not making an application thereafter. As more than ninety days obviously elapsed even after 15-5-1949 before the present application was made, the suit has obviously abated.

17. I need not deal specifically with the two grounds given by the learned Munsif in support of his order. It is inconceivable how he could have treated the decree for damages in the present case as a preliminary decree, or how he could have held that the case was one under Order 22 Rule 10. As I have stated already, Mr. Gupta made no attempt to support those reasons given by the learned Munsif.

18. For the reasons I have given the order of the learned Munsif must be held to be erroneous in law. The Rule is accordingly made absolute. The judgment and the order of the learned Munsif are set aside and it being held that the suit has abated, the case is sent back to the learned Munsif in order that he may deal with and determine the prayer for setting aside the abatement in accordance with 3aw and in the light of the observations contained in this judgment.

19. The petitioner will have his costs in the present Rule -- the hearing fee being assessed at three gold mohurs.

S.R. Das Gupta, J.

20. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //