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Bhola Singh and ors. Vs. Gosto Behari Sarkar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case Nos. 3033 and 3043 to 3049 of 1961
Judge
Reported inAIR1966Cal199
ActsPresidency Small Cause Courts Act, 1882 - Sections 53 and 69
AppellantBhola Singh and ors.
RespondentGosto Behari Sarkar
Appellant AdvocateC.C. Ganguli and ;P.K. Mukherji, Advs. in No. 3033/61 and ;A.D. Mukherjee, ;Hemesh Chandra Sen and ;Sushanta Kumar Sen, Advs. in No. 3043 to 3049/61
Respondent AdvocateP.K. Das, ;Salyendra Nath Samajdar and ;A.N. Roy, Advs.
Excerpt:
- .....small cause court to remove the attachment of their goods and moveables. mr. das appearing for the opposite party has argued that the opposite party might be given an order for stay against the withdrawal of that money from the court until his client is advised to bring other appropriate proceedings. i am not impressed by that argument. the tenant-petitioner has already paid his rent to the officialliquidator, an authorised officer of this court,i do not see why the tenant petitioner shouldbe required to make double payments and whythis court should withhold the other moneywhich he had to put in to remove the distresson his goods and moveables.civil revision cases nos. 3043 to 3049 of 1961.20. the judgment in civil revisioncase no. 3033 of 1961 delivered on 18th march1965 also governs.....
Judgment:
ORDER

P.B. Mukharji, J.

1. This Rule is directed against the order of the learned Judge of the Presidency Small Cause Court, Calcutta dismissing in one single judgment eight objections by eight set of tenants to the eight distress warrants issued by that Court. It raises the important question of the nature, scope and validity of the distress procedure provided in Chapter VIII of the Presidency Small Cause Courts Act.

2. The main objections to these distress warrants can be classified broadly under two heads. The first objection is a plea of payment.The second objection is that the landlord, Gosto Behari Sarcar, was not alone entitled to maintain the application for distress warrant and get an order for such a warrant.

3. The facts briefly are as follows: A private company by the name of Sarkar Estate Private Ltd. was ordered by this Court to be wound up on the 4th March 1960. Upto August 1960 rent was paid by these petitioner-tenants to Gosto Behari Sarcar and Brothers (Sarkar Estate Private Ltd.) at 34/A and 34/B Sashi Bhusan De Street. The rent for the month of September 1960 was sent by money-order to Gosta Behari Sarcar and Brothers (Sarkar Estates Private Ltd.) addressed to the correct address as shown in the previous rent receipts, namely, 34/A and 34/B Sashi Bhusan De Street. But then what happened was that this money order was not received by Gosta Behari Sarcar and Brothers but by the Liquidator of the Company, Sarkar Estates Private Ltd. The official Liquidator on the 21/24th November 1960 wrote to the petitioner Bhola Singh that after the order of winding up had been made by this High Court on the 4th March 1960 postal authorities had been requested to cause delivery of all letters, money-orders and other postal articles addressed to the said Company direct to the Official Liquidator at No. 12 old Court House Street. Calcutta. This letter is an annexure to the petition before me. At the penultimate paragraph of this letter the Official Liquidator wrote to the petitioner Bhola Singh addressed at Punjabi Hotel, 124/124/A Bowbazar Street, Calcutta 12 as follows:

'The said company in liquidation having a claim, right, title and interest in the above premises and you being a tenant of a portion thereof, you are hereby called upon to produce forthwith before the undersigned the last rent receipt, documents and papers relating to your tenancy and also to pay and deposit all arrears of rents, current and future, in respect of your tenancy with this office'

In that state of facts money-orders were sent to the Official Liquidator and rent was realised by the Official Liquidator from the petitioners from September 1960 to April 1961. It is for this period, namely from September 1960 to April 1961, that the opposite party. Gosta Behari Sarcar, filed an application for distress under Section 68 of the Presidency Small Cause Courts Act for these arrears of rents on the 17th May 1961. The petitioner's moveables were attached on the 18th May 1961 under that warrant. As I have pointed out already the petitioners took two objections under Section 60 of the Act, namely, that (1) the distress application at the instance of Gosta Behari Sarcar alone was not maintainable, there being other co-landlords and (2) that there was no arrear of rent as all arrears had been paid to the Official Liquidator for the period in question for which the distress warrants were issued. These objections were filed on the 20th May 1961 but they were rejected by the learned Judge on the 22nd Jury 1961. It is against that rejection that the present Rule was taken out.

4. It is stated by the petitioner in thepetition and in the affidavits used in these proceedings that Mrs. Gouri Chunder is the owner of premises No. 124 and 124/A Bowbazar Street. The opposite party Gosta Behari Sarcar is a lessee under her holding under a lease. The landlord opposite party here claims that he alone is entitled to these rents and that the official Liquidator had nothing to do with those premises under the lease, namely, 124 and 124/A Bowbazar Street. It also appears from the record that this Company, Sarkar Estates Private Ltd., was formed as early as 1945 and one of the objects in its memorandum and articles was to acquire the estates of the Sarkars. There is no proof on the record here that actually the Sarkar estates had been taken over by this company. Naturally the whole case of the landlord opposite party is that the Official Liquidator in charge of the Sarkar Estates Private Ltd. had nothing to do with these premises and with the collection of rents, It is, therefore, said on behalf of the landlord petitioner that payment to the Official Liquidator was unauthorised and such plea of payment cannot discharge at all their responsibility to pay rent to the right landlord. The opposite party has also tried to meet the objection raised by the petitioner that there are other co-landlords. Reference has been made to the registered lease from Mrs. Chunder to him to show that he alone was the lessee of those premises in which the petitioners are the subtenants. The learned Judge of the Small Cause Court accepted both these points in favour of the landlord petitioner and upheld the distress warrants.

5. It appears to me that the whole proceedings of distress in the facts of this case are entirely misconceived. The procedure of distress is provided in Chapter VIII of the Presidency Small Cause Courts Act. Section 53 of that Act deals with the application for distress warrant. It reads as follows:

'Any person claiming to be entitled arrears of rent of any house or premises to which this Chapter extends, or his duly constituted attorney, may apply to any Judge of the Small Cause Court, or to the Registrar of the Small Cause Court, for such warrant as is hereinafter mentioned.

The application shall be supported by an affidavit or affirmation to the effect of the form (marked A) in the third Schedule hereto annexed, 'The form 'A' annexed with the third schedule of the Presidency Small Cause Courts Act gives the following form :

'In the Small Cause Court for A.B.--------------------(Plaintiff) versus C.D. ------------------------- (Defendant)A.B. of ------------ in the town of maketh oath (or affirms) andsaid that C.D. ------------------------------ of--------------is justly indebted to ---------------------in the sum of Rs. --------- for arrears of rent of the house and premises No. --------------------- situated at ---------------, in the town of ------------, due for -------------------- months, to wit, from -----------to-----------------, at the rate of Rs.------------------per mensem.Sworn (or affirmed) before me the----------------day of -------------------------- 19 Judge (or Registrar)'

6. Although the Form appears in the deceptive garb of a plaint using the words'plaintiff' and 'defendant' it is nevertheless plain that it is not a regular plaint nor a regular suit. The essence of this procedure is contained in those words used in the form 'justly indebted to -------- - in the sum of Rs.--------- for arrears of rent'. In other words, it is a proceeding on a 'debt' as the foundation for the distress warrant. No question of title of landlord or tenant is or can be resolved in such a form. It is, therefore, not intended that this application for distress warrant should at all be used to try and determine complicated question of title between the landlord and the tenant or disputed and controversial facts of high complexity about the claims for rent. This view is fortified not only by the form but also by the language of Section 53 quoted above using the words 'any person claiming to be entitled to arrears of rent '.

7. Then, it is provided in Section 54 of the Act that

' The Judge or Registrar may thereupon issue a warrant under his hand and seal and returnable within six days, to the effect of the form (marked B) contained in the same Schedule, addressed to any one of such bailiffs.

The Judge or Registrar may at his discretion, upon personal examination of the person applying for such warrant, decline to issue the same. '

8. The jurisdiction which this procedure contemplates is a summary jurisdiction. Even the Registrar can issue the warrant. The application for distress may be made to the Registrar.

9. Analysing further the procedure for distress under Chapter VIII of the Presidency Small Cause Courts Act it is clear that application can be made to discharge or suspend the warrant issued. The warrant is issued ex parte. The statute, therefore, in Section 60 gives an opportunity to the debtor or any other person alleging himself to be the owner of the property seized under the warrant to make an application for its discharge or suspension. Section 61 of the Act similarly permits a person who is a stranger to claim goods distrained by such a warrant. Provisions are made in Section 62 of the Act giving the power to the Judge in any case under Section 60 or Section 61 to award compensation by way of damages to the applicant or the claimant as the Judge thinks fit. Before issue of the warrant the Judge or the Registrar can decline the application for issue of such warrant at his discretion on personal examination of the person applying such warrant. This is the first brake in the hand of the Court to apply suo motu if necessary. The second brake comes in later whenthere is objection raised by the person whose goods are seized. After the warrant has issued then the Judge alone can receive the applications to discharge or suspend the warrant on the application of the debtor or any other person alleging himself to be the owner of the property seized under the warrant. It is here at this stage that the court must see if the objections made raise complicated questions of title and facts which cannot be properly decided and solved in the summary method of distress procedure. If they do then the ex parte warrant issued should be discharged and parties relegated to more appropriate procedure to fight out their claims on merits. The power to award compensation to the debtor or the claimant under Section 62 of the Act is a kind of a third brake intended more as a deterrent against frivolous use of applications for distress warrants. In any case, of such objections under Section 60 or Section 61 of the Act, if the value of the subject matter in dispute exceeds Rs. 1,000 then Section63 of the Act provides that the applicant or the claimant may apply to the High Court to transfer the case to itself and to be disposed of by the High Court.

10. The basic limitations on the jurisdiction of the Presidency Small Cause Courts are provided by the famous Section 19 of the Presidency Small Cause Courts Act. One such basic limitation is that the Court has no jurisdiction over suit for 'the recovery of immovable property under Clause (d) of Section 19 of the Act. Much learning has gone to develop the law on the subject and the net result of it all is that the Court of Small Causes has very limited jurisdiction to try questions of title to immovable property which arise only incidentally in an otherwise competent suit. What is incidental and what is principal has naturally been the subject of endless debates in Courts and decisions. The famous Chapter VII of the Presidency Small Cause Courts Act and its still more famous Section 41 dealing with ' summons against persons occupying property without leave' have also raised many controversies raising such debatable questions as how far this procedure by way of summons assumes the character of a regular suit and how far this procedure can incidentally or otherwise raise questions of title. Immediately follows Chapter VIII of the Presidency Small Cause Courts Act dealing with the issue of distress warrant.

11. On a review of the scheme and relevant sections of the Presidency Small Cause Courts Act three following broad indisputable propositions appear to emerge :--

(1) That the Court is essentially a summary Court trying 'Small Causes'.

(2) That no regular suit for the recovery of immoveable property raising primarily questions of disputed title can be entertained by this Court ; and

(3) That the distress procedure in Chapter VIII can no more deal with complicated questions of title where regular suits for the same cannot be entertained.

12. The entire law and procedure of distress trace their descent from the English Law. Before the Presidency Small Cause Courts Act, 1882 was passed the law relating to distress in the presidency towns in India was governed by the Distress Act of 1875. That was the immediate predecessor of the present law. This Distress Act was repealed and its provisions relating to distress were almost copied verbatim in the Presidency Small Cause Courts Act of 1882.

13. In this context I am inclined to take this view and I am of this opinion that the Small Cause Court procedure for distress under Chapter VIII of the Presidency Small Cause Courts Act is a summary remedy by which a person seeks an instantaneous redress to take into his possession the moveables of any person to be held as almost a pledge to compel the performance of the satisfaction of a debt but the debt must be a debt and not a mere pretence to rover controversial questions of title. This distress warrant or its procedure is not a suit. It is a summary procedure because it starts ex parte on a mere sworn affidavit on a form which only asserts as its foundation a debt. Because it is ex parte in the first instance it is all the more essential for the Court to examine the objections when they are made. This procedure, therefore, is not in my view open to the landlord opposite party in a case such as this where highly complex questions of title, company law and liquidation are involved.

14. Mr. Das appearing for the landlord opposite party has tried to impress upon me that these premises No. 124, 124/A Bowbazar Street do not belong to the limited company of which the Official Liquidator is in charge. In support of that he has drawn my attention to the records of the company proceedings on the original side of this Court whereby the Official Liquidator seeking directions from the Court did not include in his petition this particular properly. But that petition was dated 20th June 1960. Even thereafter the Official Liquidator on the 21/24th November 1960 wrote the letter whose material portions I have already quoted above. I am satisfied that the facts in this case raise highly intricate and controversial questions of title by reason of the following facts :

(a) The tenant petitioner according to the term of the tenure shown by the rent receipts already issued sent the money order to the proper address and it was by the order of the Official Liquidator that the postal authorities had been asked to redirect all such money orders and correspondence to the Official Liquidator.

(b) The Official Liquidator if he was not claiming interest in respect of that property should in that event have returned these money orders or redirected them to the landlord opposite pary Gostha Behari Sarcar but he did not.

(c) In fact the Official Liquidator received the money sent and riot only did he rest there but also as shown by the contents of the letterquoted above he claimed, ordered and directed the petitioner to send his rent to him, the Official Liquidator. It is, therefore, not open now to the landlord opposite party to say that no disputed question of title or claim between him and the Official Liquidator arises in this case. In my view, it plainly arises on the facts. I do not for a moment suggest that because there is a dispute between the Official Liquidator and Gosta Behari Sarcar, therefore, claim of the one or the other must be right, but the fact which is important in this distress procedure for the purpose of the tenant opposite party is that this dispute is there.

(d) If the Official Liquidator has received this money and if he is not entitled to retain it as against Gostha Behari Sarcar individually as a lessee entitled to the rents of the subtenants in premises No. 124, 124/A Bowbazar Street, the landlord opposite party should have no difficulty in obtaining the refund from the Official Liquidator (who is an officer of this Court) if he believes that the Official Liquidator has wrongly taken the money which belongs to him personally. But then why should the tenant petitioner suffer? He is not responsible for the situation created by the contradictory claims of the Official Liquidator and Gostha Behari Sarcar each claiming to be entitled to the rent from the tenant petitioner.

15. These facts to my mind make it clear beyond doubt that the distress procedure under the Presidency Small Cause Courts Act can no longer be applied to such a case.

16. In this view of the matter I do not think it is necessary for me to decide the other question whether Section 50 of the Transfer of Properly Act applies to this case and whether there are other co-landlords along with the opposite party Gosta Behari Sarcar in respect of these premises.

17. For these reasons, I hold that the order of the learned Judge of the Small Cause Court was clearly wrong in exercising the jurisdiction and in rejecting the tenant's objection to the distress warrant. I set aside that order and make the Rule absolute with costs assessed at one gold mohur.

18. This order will in no manner prejudice the rights, if any, of the landlord opposite party Gosta Behari Sarcar to take any proceedings against either the tenant petitioner and/or the Official Liquidator by way of a suit or any other regular procedure that is or can be legally open to him. All that this order holds is that the distress procedure is illegal and untenable in the present case.

19. The petitioners will be entitled to withdraw the amount that they have deposited in the Small Cause Court to remove the attachment of their goods and moveables. Mr. Das appearing for the opposite party has argued that the opposite party might be given an order for stay against the withdrawal of that money from the Court until his client is advised to bring other appropriate proceedings. I am not impressed by that argument. The tenant-petitioner has already paid his rent to the officialLiquidator, an authorised Officer of this Court,I do not see why the tenant petitioner shouldbe required to make double payments and whythis Court should withhold the other moneywhich he had to put in to remove the distresson his goods and moveables.Civil Revision Cases Nos. 3043 to 3049 of 1961.

20. The judgment in Civil RevisionCase No. 3033 of 1961 delivered on 18th March1965 also governs these Rules and the Rulesare made absolute with costs assessed at onegold mohur in each ease.


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