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Jahur Mia and ors. Vs. Abdul Gaffur Mia - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1941Cal452
AppellantJahur Mia and ors.
RespondentAbdul Gaffur Mia
Cases ReferredBengal v. Mahmuda Bibi
- .....but as a continuation of the suit. it was there laid down that the legal pursuit of a remedy, suit, appeal and second appeal, are really but steps in a series of proceedings connected by an intrinsic unity. the question was whether an application to set aside a sale was to be governed by the provisions of the civil procedure code which were in force at the time the execution proceedings were commenced, or by the law under the new code which came into operation since, but before the date of the sale, and it was held that the old code would apply, on the ground that the application was to be treated as a part of the execution proceedings which resulted in the sale. this ease was cited with approval in a later decision of the same high court, pandharinath v. thakordas shankardas ('29).....

Biswas, J.

1. The question in this rule is whether the Court below was justified in staying the hearing of an appeal pending before it. The appeal arose out of a suit for ejectment, and the order for stay purported to be made under Section 3, Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940. This is a recent enactment of the Bengal Legislature which came into force on 30th May 1940, and is designed to give temporary relief to non-agricultural tenants by staying all suits and proceedings against them for ejectment for the period of the Act, namely, a period of two years from the date of its commencement. The material portion of Section 3 is as follows:

Notwithstanding anything contained in any other law for the time being in force every suit and proceeding in any Court for ejectment of a non-agricultural tenant other than a suit or proceeding for ejectment on account of the non-payment of rent by such tenant, shall be stayed for the period during which this Act continues in force.

2. There is no question of ejectment for nonpayment of rent here, and the suit is not, therefore, excepted from the operation of the section by virtue of the exceptional clause therein, whatever that clause might mean. The learned Judge was of opinion that the suit came within the terms of the section, and presumably taking the view that an appeal is a continuation of the suit, felt bound to stay the appeal. The petitioners before us are the plaintiffs in the suit and challenge the propriety of the order on a variety of grounds. The learned Advocate appearing for them did not, however, argue the question of the Act being ultra vires of the Bengal Legislature, though this was the first and foremost ground taken in their petition. He was content to support the rule on other grounds, which in effect amounted to saying that the case did not come within the provisions of Section 3. To appreciate the arguments, it is necessary to set out a few facts.

3. There were two sets of defendants in the suit. The principal defendants were defendants 1 to 8, the modaks, who were direct tenants under the plaintiffs in respect of certain bhiti lands in the town of Narayanganj, and it is not disputed that they would come within the definition of non-agricultural tenants under the Act. The lands which they held were non-agricultural, there was an agreement under the terms of which they were entitled to hold the lands for homestead or residential purposes, and there were no structures thereon erected or owned by the landlords. The evidence is, and it is admitted, that the tenants themselves put up certain tin-sheds. The other set of defendants, of whom defendant 9 was one, were persons who had taken a sub-lease of some of these tin-sheds from the modaks, and in the document creating the sub-lease, they were described as 'bharatias' of the structures which were expressly stated to be the property of the modaks. It appears that during the pendency of the suit, the principal defendants came to terms with the plaintiffs with the result that a solenama was filed, whereby they admitted the title of the plaintiffs as landlords and offered to deliver up possession of the lands with the structures, the plaintiffs agreeing to pay them a sum of Rs. 1000 as the price of the structures. The solenama was filed on 7th September 1939, and on 14th December following, the learned Munsif passed a decree in favour of the plaintiffs against defendants 1 to 8 in terms thereof. As regards the other defendants, as they were absent on call, the suit was decreed ex parte against them, costs being awarded against defendant 9 only. From this ex parte decree defendant 9 took an appeal to the third Subordinate Judge of Dacca, and while this appeal was pending, the new Act came into force. Defendant 9 thereupon made an application for stay, and as already stated, a stay was granted. It is against this order that the plaintiffs have obtained the present rule, defendant 9 being the sole opposite party.

4. Apart from any questions arising on a construction of Section 3, it does seem somewhat incongruous that defendant 9 should have asked for a stay of his own appeal. That was certainly not a step taken by him in furtherance of any object for which the Act was passed. A decree for ejectment had no doubt been made against him by the trial Court, but he was not asking for a stay of execution of the decree pending the appeal, Execution had in fact not been applied for by the plaintiffs, nor, I may add, has execution been taken out since. It cannot be said, therefore, that there was any proceeding for ejectment pending against defendant 9 at the time, of which he might properly ask for a stay. The propriety of his action, however, need not concern us, if it appears, on the terms of the section, that he was entitled to a stay as of right. It is necessary, therefore, to examine that question, and this is in fact the sole question which arises upon the arguments in the rule. As stated above, the order complained of was made under Section 3, but as the appeal had already been filed before the Act came into force, the relevant section was Section 6 which enjoins a stay of suits and proceedings pending at the date of commencement of the Act. As this section, however, applies in terms only to suits and proceedings 'to which the provisions of Section 3 are applicable,' the question will ultimately have to be decided on the terms of Section 3. Three different lines of argument have been pressed before us on behalf of the petitioners, any one of which should be sufficient to set aside the order of the Court below. Section 3, it will be observed, operates only in respect of a 'suit or proceeding in any Court for ejectment of a non-agricultural tenant', and it is contended (i) that an appeal is not a 'suit' or a 'proceeding' within the meaning of the section, (ii) that in any case the appeal here was not a proceeding for ejectment, and finally (iii) that it was not a proceeding for ejectment of a 'non-agricultural tenant'. In my opinion the petitioners are entitled to succeed on all the points.

5. As regards the first point, I do not think that it can be laid down as a general proposition that a 'suit' or a 'proceeding' necessarily includes or does not include an appeal. Decisions are to be found either way, but they depend on the construction of particular enactments. On behalf of the opposite party, Mr. Sen relied mainly on the authority of a Bombay case, Chinto Joshi v. Krishnaji Narayan ('79) 3 Bom 214 in support of the view that an appeal should be regarded not as a new proceeding, but as a continuation of the suit. It was there laid down that the legal pursuit of a remedy, suit, appeal and second appeal, are really but steps in a series of proceedings connected by an intrinsic unity. The question was whether an application to set aside a sale was to be governed by the provisions of the Civil Procedure Code which were in force at the time the execution proceedings were commenced, or by the law under the new Code which came into operation since, but before the date of the sale, and it was held that the old Code would apply, on the ground that the application was to be treated as a part of the execution proceedings which resulted in the sale. This ease was cited with approval in a later decision of the same High Court, Pandharinath v. Thakordas Shankardas ('29) 16 AIR 1929 Bom 262 at p. 459, as authority for the view that a suit and all appeals made therein are to be regarded as one legal proceeding. It will be observed, however, that in Chinto Joshi v. Krishnaji Narayan ('79) 3 Bom 214 the contrary rule was also recognized, which the learned Judges in fact referred to as the view of eminent authorities, and it was thus expressed: when judicial enquiry has reached its intended close in an adjudication, requiring thenceforward in theory only a ministerial or coercive exercise of authority to give it practical effect, the party who strives by an appeal to unsettle again the legal relation, which in itself has by the act of the Court become settled, may fairly be regarded as instituting a new proceeding.

6. Mr. Sen referred also to certain decisions of this High Court, such as, Pran Krishna v. Surath Chandra ('19) 6 AIR 1919 Cal 1055 and Deb Narain Dutt v. Narendra Krishna ('89) 16 Cal 267 (FB). In the first case, the question turned on the construction of the word 'Court' in Section 4, Partition Act, (Act 4 of 1893), and it was held, that this would include the appellate Court, and in this connexion, it was stated that an appeal was a continuation of the suit. In the second case, which was a Full Bench decision, the question was as to the meaning of the word 'proceeding' in Section 6, General Clauses Act, (Act 1 of 1868) and Wilson J., delivering the judgment of the Full Bench referred to the uniform course of decisions to the effect that an appeal is a part of the same proceeding within the meaning of this section as the thing appealed against, and that, therefore, if the thing appealed against is a decree in a suit, the appeal is a part of the same proceeding as the earlier steps in the suit. In each case, the decision proceeded on a consideration of the provisions of the particular Act which fell to be construed.

7. In support of the contrary view, reference may be made, among others, to a much later decision of this Court, Commissioner of Wakfs, Bengal v. Mahmuda Bibi : AIR1936Cal480 , in which it was expressly held, with reference to Section 70 (1), Bengal Wakf Act, (Bengal Act 13 of 1934), that the words 'suit or proceeding' used therein do not include an appeal. The learned Judges relied upon some authorities to show that a suit does not include an appeal, but the decision was ultimately based on the provisions of the Act and a consideration of its underlying aim and policy, and this in my opinion was the right basis of interpretation. Applying a similar test to the Act in question in the present case, I do not think it can be said that the Legislature intended an appeal to come within the scope of Sections 3 and 6, thereof. These sections, it will be seen, contain provisions for stay of suits and proceedings, Section 3 applying to suits and proceedings instituted after the date of commencement of the Act, and Section 6 to those pending at that date. An appeal may in a sense be regarded as a continuation of a suit, but where a suit is stayed, as it must be under these provisions, there can be no question of its proceeding to the appellate stage, and an appeal may, therefore, easily be supposed to be excluded from the purview of a 'suit.' The meaning of ' proceeding ' may perhaps be regarded as more doubtful, but here, again, the context in which the word occurs, and particularly its close juxtaposition with the word 'suit,' would seem to show that it is intended to denote only a proceeding ancillary to and directly arising out of a suit; in other words, a proceeding in the nature of execution to enforce a decree made in the suit.

8. Such a view would indeed appear to be fully in consonance with the object and policy of the Act, so far as the same could be gathered from its provisions. For the purpose of giving the relief which it is the aim of the Act to give to a non-agricultural tenant, it should certainly be wholly unnecessary to provide for stay of appeals so long as provision was made for stay of execution proceedings. It is no doubt true that the same argument might as well justify . the exclusion of suits from the scope of these provisions, but suits have been expressly mentioned, and not appeals, though appeals might easily have been included, if the Legislature had really so intended. The omission is significant, and there is no reason to assume that appeals were sought to be impliedly indicated. It is worth while pointing out in this connexion that in various enactments, including recent enactments of the Bengal Legislature, where the Legislature have thought it fit to include appeals within the scope of. suits, they have said so in so many words: see for example, the Bengal Money-lenders Act 1940, Section 2 (21).

9. There is yet another consideration to be taken into account. Having regard to the nature and scope of these provisions, it seems to me to be clear that they could not in any case be held to be applicable to appeals gene-rally, but would have to be restricted to a limited class of appeals, namely to such appeals only as could be properly described as proceedings for ejectment. The words 'for ejectment' are indeed the governing words in these sections, and it can hardly be questioned that the stay which is contemplated here is a stay only of proceedings which but for the order of stay, would or might forth-with result in ejectment. In a case where the lower Court has decreed ejectment and the tenant appeals, an application by the landlord to execute the decree pending the appeal will certainly be a proceeding for ejectment, but not so the appeal itself which is obviously not only not a proceeding for ejectment, but a proceeding against ejectment. It will be otherwise where the lower Court has refused ejectment, and the land-lord appeals, for there the purpose of the appeal is avowedly to obtain ejectment. It follows therefore supposing appeals could at all be brought within the sections, they would apply only to appeals by landlords against tenants, and not to appeals by tenants against landlords, an anomalous result which, in my judgment, ought certainly to be avoided, if possible, as a matter of construction.

10. For the reasons aforesaid, I should be inclined to hold that the words 'suit or proceeding' used in Section 3 or Section 6 do not include an appeal and if I am right in this view, this should be sufficient to dispose of the Rule. But as I have said before, the petitioners are entitled to succeed on the other two grounds as well. I need not, however, discuss the second ground at length, for, even assuming that an appeal is not excluded from the scope of these provisions this being still a tenant's appeal against a decree for ejectment, it should be clear from what has been already stated that the appeal could not be deemed to be a proceeding for ejectment. The provisions of Section 3 could not consequently apply. In any case, the third ground urged in support of the Rule seems to be unanswerable. Mr. Sen on behalf of the opposite party in fact frankly stated before us that by no stretch of language could he bring his client, defendant 9, within the definition of a non-agricultural tenant as contained in Section 2 of the Act. As the definition clearly shows, to bring a person within its terms, it must be shown that the letting to him was of land without any structure on it erected or owned by the landlord, the word 'land' as used here being expressly intended to exclude any structure standing thereon. The whole idea is to give protection to a tenant who takes a lease of land for any of the purposes mentioned in the section, and who may thereafter put up a structure on the land for such purpose at his own cost. Admittedly, in the present case, defendant 9's lease from the modaks was not of land, but only of tin-sheds which the modaks had erected thereon: in any event, it was a lease of land with structures on it erected by the landlord. It must follow accordingly that defendant 9 could not be treated as a person entitled to relief under the provisions of the Act.

11. It may be that there were certain other persons joined as defendants in the suit who were admittedly non-agricultural tenants, and the suit might from that point of view be regarded as one to which the provisions of Section 3 were applicable. But, on the facts of the case, I am not at all sure that the suit could still be so regarded in the appellate stage on the appeal of defendant 9. These defendants who were non-agricultural tenants had already submitted to an ejectment decree by the terms of their compromise with the plaintiffs, and as they did not appeal, I do not think it was open to any of the other defendants to question this decree. The suit had virtually, therefore, ceased to be a suit as between the plaintiffs and these defendants. I cannot agree with the learned Judge in the Court below that merely because these defendants were joined as respondents in defendant 9' appeal, the suit still continued to retain this character. There could obviously be no question of a stay of this appeal at their instance or for their benefit.

12. It seems unreasonable to hold in these circumstances that defendant 9, who did not satisfy the definition of a non-agricultural tenant, should yet be entitled to a benefit which he certainly could not claim if he was the sole defendant in the suit. On this ground also, it must, therefore, be held that the provisions of Section 3 of the Act were not applicable. The result is that in my opinion the Rule must be made absolute, and the stay order vacated. The learned Judge should accordingly be directed to proceed with the hearing of the appeal in the ordinary course. The petitioners will be entitled to their costs. We assess the hearing fee at two gold mohurs. Let the records be sent down at once.

B.K. Mukherjea, J.

13. I agree with my learned brother that this Rule should be made absolute. I am not prepared to go so far as to say that the expression 'proceeding' as used in Sections 3 and 6, Bengal Non-Agricultural Tenancy Act, is not sufficiently wide to include an appeal or that an appeal arising out of a suit for ejectment of a non-agricultural tenant is not hit by the provisions of these sections.

14. I have no doubt, however, that the appeal preferred by defendant 9 which is now pending in the Court of the Subordinate Judge at Dacca is not a proceeding for ejectment of a non-agricultural tenant as contemplated by the Act. Defendant 9 is admittedly not a non-agricultural tenant. There is no privity of contract between him and the plaintiffs. The structures that stand upon the land were not raised by him and it is expressly stated in his written statement that he is a mere bharatia with regard to the structures under defendants 1 to 8 and has no interest in the land itself. It is true that defendants 1 to 8 were non-agricultural tenants, but they having walked out of the suit and vacated the lands on compromise with the plaintiffs, the appeal which is now pending cannot be said to be a proceeding between the plaintiffs on one hand and defendants 1 to 8 on the other. Defendant 9 may challenge the compromise that was entered into between the plaintiffs and defendants 1 to 8, but whatever rights he may have against his own lessors that would not make him a tenant under the plaintiffs nor a non-agricultural tenant, within the meaning of the Act. I agree that on this ground this Rule should be made absolute. No further order is necessary on the application.

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