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Durlav Chandra Ghose (a Firm) Vs. Sm. Benarashi Devi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1237 of 1951
Judge
Reported inAIR1952Cal728,56CWN495
ActsTenancy Law;; Calcutta Thika Tenancy Act, 1949 - Sections 4, 28 and 29
AppellantDurlav Chandra Ghose (a Firm)
RespondentSm. Benarashi Devi
Appellant AdvocateBankim Chandra Banerjee and ; Gaganendra Kr. Deb, Advs.
Respondent AdvocateManindranath Ghose and ; Anil Kumar Sett, Advs.
Excerpt:
- .....section 29, tikka tenancy act. the prayer was for an order on the plaintiff to show cause why the decree passed in the suit should not be rescinded and set aside or an order of dismissal of the suit should not be recorded the ground given in the application was that the decree and order for giving up possession was 'not in conformity with any provision of the said act other than section 27 (s) of the act.'2. the application itself did not mention the particular provision of the act with which the decree was alleged not to be in conformity. it appears from the order that was passed by the learned judge on the 9th july that three points were urged before him.3. the first point urged was that the land was-not required by the landlord for his own occupation or for the purpose of building on.....
Judgment:

K.C. Das Gupta, J.

1. On 8th October 1947, the opposite party made an application in the Small Cause Court for an order for delivery of possession of the land of which the present petitioner ?was a tenant. The order directing delivery of possession was passed on 2nd August 1948. The Court took no notice of the objection raised by the petitioner that he could not be evicted without payment of compensation for the valuable structures he had constructed on the building with respect to which he was a tenant, with the con-sent of the landlord. The order passed on 2nd August 1948, was in these words 'Writ of possession to issue and possession to be given on the 28th September 1948.' The date was thereafter extended from time to time and before possession had been given the Ticca Tenancy Ordinance came into force on 26th October 1948, and thereafter on 28th February 1949, the Tikka Tenancy Act came into operation. On 7th May 1949, the present petitioner filed an application purporting to be under Section 28 and under Section 29, Tikka Tenancy Act. The prayer was for an order on the plaintiff to show cause why the decree passed in the suit should not be rescinded and set aside or an order of dismissal of the suit should not be recorded The ground given in the application was that the decree and order for giving up possession was 'not in conformity with any provision of the said Act other than Section 27 (S) of the Act.'

2. The application itself did not mention the particular provision of the Act with which the decree was alleged not to be in conformity. It appears from the order that was passed by the learned Judge on the 9th July that three points were urged before him.

3. The first point urged was that the land was-not required by the landlord for his own occupation or for the purpose of building on the land' within the meaning of Section 3, Sub-section (4).

4. Secondly, it was said that the three months' notice as required by Clause (b) of Section 4 had not been given.

5. Thirdly, it was said that the compensation, as required to be paid under the provisions of proviso (ii) to Section 4 had not been ordered to be paid or deposited,

6. The learned Judge found that the plaintiff did bona fide require the premises for building, and re-building so that the decree passed could not be said not to have been in conformity with the requirements of Section 3 of the Act. He found also that the provisions of Section 4 are not retrospective and did not apply to the case According to him, it was not necessary in law that the decree-should be in conformity with these provisions,, so that in spite of the provisions of Section 28 there could be no variation or rescission of the order. He however held that under Section 29 he was not competent to execute the decree and he directed the-plaintiff decree-holder to take steps for getting, the execution case transferred to the Controller and execute the decree through him.

7. Apparently, the case was thereafter transferred to the Controller. Different dates were fixed by the Controller from time to time for the-date of delivery of possession but up to this time possession has not been delivered. After the plaintiff made his application to the Controller for what he called the 'execution of the decree' on-14th September 1949, and notice was issued to the defendant, the defendant filed an application on 19th September in which he opposed execution on the basis of Ss 28 and 29 of the Act. That objection was rejected and execution was ordered to proceed. There was an appeal to the Chief Judge and the Chief Judge dismissed that appeal on 29th July 1950. Thereafter on 13th September 1950, a fresh application was filed praying for an order that compensation should be paid for the building before delivery was given. This application was rejected on 7th February 1951, and the appeal was dismissed on 17th May 1951.

8. The application that was originally filed in this Court asking for the exercise of the Court's revisional powers under Section 115, Civil P. C. sought such revision only against the last mentioned order dated 17th May 1951. The application was however amended with the permission of the learned Judge before whom it was moved and revision was asked also of the order of 9th July 1949. The Rule was issued on the opposite party to show cause why the 'orders' complained of should not be set aside. The Rule was thus directed not only against the order of 17th May 1951, but also against the order dated 9th July 1949.

9. It is necessary to mention at the outset that there is no dispute here whether the tenancy is a ticca tenancy within the meaning of the Ticca Tenancy Act. It is the common case of both parties that it is so and really it was on that basis that the present opposite party asked for the transfer of the proceedings to the Controller. It is necessary for us to see whether on this agreed basis that the tenancy was one within the Ticca Tenancy Act, the provisions of Section 28 were available to the tenant on the date he filed the application, namely, 7th May 1949.

10. Of the three grounds which, as stated before, were urged before the learned Judge for rescinding or varyirig the order of possession that had been made, the first ground that there was no case of bona fide requirement by the landlord is clearly not available in view of the finding of fact made by the learned Judge that he did so require it.

11. It is necessary to consider the next ground, namely, the omission to give three months' notice as required under Clause (b) of Section 4. The result of this provision is that after this Act came into operation a landlord cannot obtain an order for delivery of possession unless three months' notice has been given in the manner . provided in Section 3, Transfer of Property Act in the case where ejectment is sought on the ground of bona fide requirement. The question is whether where a suit has been decreed but delivery of possession has not been taken and the notice served was sufficient notice under the law then in force but does not satisfy the requirements of this Section 4 (b), it can be said that the decree is not in conformity with this provision of the Act. At first sight, it seems correct to say that this provision of the Act as regards three months' notice, has clearly not been satisfied and so the decree is not in conformity with the Act. It is important to remember, however, in this connection the fact that the occasion to give notice arose long before this Act came into operation. At the time notice was given nobody could know that such a new law would be passed requiring three months' notice. It would, therefore, seem strange that the Legislature would intend to require a rescission of the decree merely because such notice has not been given We derive clear assistance in the interpretation of this section from what the Legislature has said in clear words in Section 29. Under Section 29 the provisions of this Act shall apply to all suits and proceedings including proceedings in execution which are pending at the date of the commencement of the Act, subject to the proviso that the provisions regarding notice under Section 4 of the Act shall not apply. To hold that a decree should be rescinded where the provisions regarding notice under Section 4 have not been complied with, would give rise to the strange position that if a suit has been disposed of and has ended in a decree, that decree will be bad and will be subject to rescission because the notice under Section 4 was not given but where the suit, though instituted before the Act came into force happened to be pending, a decree for ejectment may be passed inspite of this omission. On consideration of all this, I am of opinion that even though it may be said that a decree is not in conformity with the provisions regarding notice in Section 4, a Court will not exercise its discretionary jurisdiction under Section 28, because of this non-conformity.

12. Coming now to the third ground that was urged before the learned Judge, namely, the provisions in proviso (ii) as regards payment of compensation as a condition precedent before ejectment on any of the grounds mentioned in. els, (iv) and (v) of Section 3, it seems clear to me that this is a provision, non-conformity ?with which must attract the consequence of variation provided in Section 28. The provision of the proviso is in these words:

'save as otherwise provided in any contract in writing, no thika tenant shall be ejected from his holding on any of the grounds specified in Clauses (iv) and (v) of Section 3 except on payment to the thika tenant or on depositing with the Controller for payment to the thika tenant such compensation as may be agreed upon between the landlord and the thika tenant or in the case where they do not agree as may be determined in the prescribed' manner by the Controller on application by the landlord or the thika tenant.'

13. There is no question here of anything required to be done by a party to complete his. cause of action. After the cause of action is complete and the Court would otherwise grant a decree for ejectment, the Court has, under this provision, to direct payment or deposit of a certain sum of money by way of compensation unless there is any contrary provision in any contract in writing. Admittedly, this provision was not followed in the decree that has been passed, for the obvious reason that at the time the decree was passed this Act was not in operation. The result of Section 28 of the Act, however, clearly is that the Court has to hold that the decree is not in conformity with this particular provision of the Act, namely, the provision as regards payment of compensation as a condition precedent to an order of ejectment. It must, therefore, be held that in the absence of exceptional circumstances this is a proper case for the use by the Court of its powers under Section 28 of the Act.

14. Mr. Ghose has argued that Section 28 has no application to the present case because the proceedings in execution were pending. According to him, Section 28 can have application only to those cases where, though a decree or order for the recovery of possession has been made before the commencement of the Act and possession has not been recovered from the ticca tenant, no execution case has been started. There is no reason however, why we should read into Section 28 words which are not there, namely, 'where no proceedings in execution are pending'. It may be quite true that Section 29 of the Act would have applied to the present case. What remained pending in the Court of the Small Causes Court Judge at the date of the commencement of the Act has to be considered a part of the original proceedings started under Section 41, Small Cause Courts Act or proceedings in execution of the order that had been made. Those proceedings were clearly pending at the date of the commencement of the Act and so Section 29 would have application. I fail to see however, why merely because Section 29 has application it should be held that Section 28 can have no application. There can be a common sphere of operation of more than one section of an Act. The order for the recovery of possession of a holding from the ticca tenant had been made before the date of the commencement of the Ticca Tenancy Act; possession of the holding had not been recovered from the ticca tenant. The two preliminary conditions for the Court's action under Section 28 were, therefore, present. If thereafter the Court is of opinion that the decree or order is not in conformity with certain provisions the Court has to decide whether it will rescind or vary the decree or order. I can see no justification for refusing to a party the benefit of Section 28 of the Act merely because he can have the benefit of Section 29 also.

15. In my judgment, the provisions of Section 28 were applicable to the present case and the learned ,' Judge was wrong in his view that they were not applicable. Clearly, he refused to exercise his jurisdiction on a wrong view of the law.

16. Ordinarily, that would be sufficient ground for our exercising our revisional jurisdiction for directing the learned Judge to dispose of the matter in accordance with law.

17. It has, however, been argued by Mr. Ghose that we should not exercise our discretionary jurisdiction in the presents-case in view of the further proceedings in the matter. I have already set out the fact that there was a further application under Sections 28 and 29, Ticca Tenancy Act before the Controller which was dismissed and the appeal to a superior Court was again dismissed and then thereafter the further application for compensation was made on 15-9-1950, and that was at first dismissed for default; there was an application for review and it was restored and then the application was finally dismissed and finally the appeal was dismissed.

18. It is important to notice, however, that all the orders in this matter passed after 9-7-1949, were passed by the Ticca Controller and the orders passed by him would not be subject to the revisional jurisdiction of this Court. The tenant was certainly ill-advised not to move this Court in revision against the order dated 9-7-1949, within the usual time. If he had done so, there would have been an early disposal of the matter instead of the whole question of delivery of possession being delayed for more than two years. Against this has to be considered the important fact that the case made by the petitioner, that he raised very valuable structures on the land, has not been denied before us by any counter-affidavit. To refuse to interfere with the learned Judge's order of 9-7-1949, in these circumstances, on the ground that this Court was not moved in proper time, would be manifest premium on a Yule unjust. In consideration of all the circumstances, I have come to the conclusion that this is a matter in which we should exercise our revisional jurisdiction.

19. I would accordingly set aside the order passed by the learned Judge on 9-7-1949, and direct him to dispose of the application for variation or rescission that was before him in accordance with law and in the light of the observations made above. The orders that were passed on the further application as regards Sections 28 and 29 are all set aside as being without jurisdiction as the transfer was made without a proper decision of the application under Section 28.

20. In the peculiar circumstances of the case I order that the petitioner should pay fifteen gold mohars as the hearing fee of this Rule.

Bachawat, J.

21. I agree


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