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Dalhousie Traders Ltd. Vs. Mahammad Sadique - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 21 of 1953
Judge
Reported inAIR1954Cal220,57CWN945
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Sections 16 and 32(6); ;Code of Civil Procedure (CPC) , 1908 - Sections 2(2), 47 and 96; ;Bengal, Assam and Agra Civil Courts Act, 1887 - Section 3
AppellantDalhousie Traders Ltd.
RespondentMahammad Sadique
Appellant AdvocateAnil Kumar Sett, Adv.
Respondent AdvocateS.S. Mukherjee and ;Bankim Chandra Roy, Advs.
Cases ReferredS. N. Talapatra v. Bengal Bonded Warehouse
Excerpt:
- .....was to be expected, the appellant judgment-debtor filed objections under section 47 of the code of civil procedure. these objections were overruled by the learned judge, fourth bench, of the court of small causes, calcutta. against that order an appeal was preferred before-the appeal bench as determined under section 32(6) (ii) of the rent control act of 1950, the value of the suit being less than rs. 5000/-. the only question which falls to be determined in this appeal is whether that appeal was competent. the special bench which held that no appeal lay, did not give any reasons in support of their conclusion. they merely stated that no appeal lay to that bench.4. in this court mr. sett who has appeared in support of the appeal has submitted that an appeal lay under section 32(6) (ii).....
Judgment:

Das, J.

1. This is an appeal by the judgment-debtor against an order made on the 12th November 1952 by a Special Bench of the Court of Small Causes, Calcutta, dismissing an appeal filed before that Bench by the present appellant on the ground that no appeal lay to that Bench.

2. Mr. Mukherjee who has appeared on behalf of the respondent has not raised any preliminary objection on the ground that no second appeal lies to this Court. It is therefore not necessary for us to express any opinion on this question. We are only concerned with the question whether an appeal lay to the Special Bench as prescribed by Section 32(6)(ii) of West Bengal Premises Rent Control (Temporary Provisions) Act 1950 (Act XVII of 1950).

3. The suit out of which the appeal arises was filed on the 9th April 1951 after the Rent Control Act of 1950 came into operation. The suit was decreed ex parte and thereupon the respondent decree-holder started proceedings in execution. As was to be expected, the appellant judgment-debtor filed objections under Section 47 of the Code of Civil Procedure. These objections were overruled by the learned Judge, Fourth Bench, of the Court of Small Causes, Calcutta. Against that order an appeal was preferred before-the Appeal Bench as determined under Section 32(6) (ii) of the Rent Control Act of 1950, the value of the suit being less than Rs. 5000/-. The only question which falls to be determined in this appeal is whether that appeal was competent. The Special Bench which held that no appeal lay, did not give any reasons in support of their conclusion. They merely stated that no appeal lay to that Bench.

4. In this Court Mr. Sett who has appeared in support of the appeal has submitted that an appeal lay under Section 32(6) (ii) of the Rent Control Act of 1950.

5. Section 32 (6) (ii) does not specifically provide that an appeal lies. It merely prescribes the forum of the appeal. No doubt the implication is that an appeal lies against a decree for recovery of possession under the circumstances mentioned in that section.

6. The answer to the enquiry as to whether an appeal lies against an order made in execution of a decree for recovery of possession passed in a suit filed in terms of Section 16 of the Rent ControlAct of 1950 must be found on a consideration of other provisions of the Rent Control Act of 1950.

7. Section 16 of the Bent Control Act of 1950 prescribes the jurisdiction of a Court which is competent to try suits for recovery of possession in regard to premises to which the Act relates. Such suits as the Section provides, must be tried by the Courts referred to in Schedule 'B' to the Act. Schedule 'B' provides that the Courts specified therein as competent to try suits for recovery of possession, would be deemed to be Courts as defined by the Bengal, Assam and Agra Civil Courts Act (Act XII of 1887). In the present case the suit was filed before the Chief Judge of the Court of Small Causes, Calcutta, as provided by Schedule 'B'. It was transferred by the learned Chief Judge to the Judge, Fourth Bench.

In view of the provisions contained in Schedule 'B', the learned Judge, Fourth Bench, when he disposed of the suit, must be deemed to have functioned as a Court of Subordinate Judge within the meaning of Bengal, Assam and Agra Civil Courts Act (Act XII of 1887). Such a suit, it is conceded, has to be initiated by the presentation of a plaint. If the suit terminates in favour of the plaintiff, a decree follows. That decree is a decree of a Court as specified in Schedule 'B' of the Rent Control Act. The question is whether such a decree can be regarded as a decree of a Civil Court within the meaning of Section 2(2) of the Code of Civil Procedure, 1908.

8. The Bent Control Act of 1950 does not specifically make the provisions of the Code of Civil Procedure applicable to suits instituted under Section 16 of the Rent Control Act of 1950. The preamble of the Code of Civil Procedure however shows that that Code was enacted to consolidate the law relating to proceedings in Courts of Civil Judicature. A suit for recovery of possession referred to in Section 16 of the Rent Control Act of 1950 is obviously a proceeding in a Court of Civil Judicature. Prima facie therefore the proceedings in such a suit would be governed by the provisions of the Code of Civil Procedure, 1908. As the suit had started on a plaint presented to the Court referred to in Schedule 'B' of the Kent Control Act of 1950, a determination of that suit would result in a decree of a Civil Court. This view receives support from the provision of Section 26 and Order 4. Rule 1 of the Code of Civil Procedure. If the decree which is passed in a suit for recovery of possession filed in terms of Section 16 of the Rent Control Act is a decree of a Civil Court, the provisions of Section 2(2) of the Code of Civil Procedure will be attracted.

The view taken above that the Code of Civil Procedure applies to suits instituted under Section 16 of the Rent Control Act, is supported by a Bench decision of this Court in the case of --'Mirabala Dasi v. Binapani Dassi', 56 Cal WN 761 (A). In three other decisions of this Court, the above proposition has been assumed. In the case of -- 'Bhupesh Chandra v. Dr. M. N. Bose', (B) and -- 'Sew Sankar Lal v. Be-joy Krishna', : AIR1953Cal218 (C), both of which related to proceedings under Order 21, Rule 97 of the Code of Civil Procedure, it was assumed by this Court that the Code applies to proceedings in execution of a decree passed in a suit filed in terms of Section 16 of the Rent Control Act,' 1950. The same assumption was also made in a Bench decision of this Court in --S. N. Talapatra v. Bengal Bonded Warehouse', : AIR1953Cal598 (D) which concerned an application under Order 21, Rule 100 of the Code of Civil Procedure. My decision therefore is that a decreepassed in a suit filed under Section 16 of the Rent Control Act of 1950 must be regarded as & decree of a Civil Court as defined in Section 2(2) of the Code of Civil Procedure.

The term 'decree' as defined in Section 2(2) of the Code of Civil Procedure Includes a determination of any question within Section 47 of the Code of Civil Procedure. The decision of the learned Judge, Fourth Bench, was a determination of B question which came within Section 47 of the Code of Civil Procedure. As such an appeal lay against the order of that learned Judge. The appeal before the Special Bench was therefore competent.

9. As the Special Bench did not decide the merits of the objection under Section 41 of the Code of Civil Procedure, this matter has to be remanded to the Special Bench for a determination of the objections under Section 47 of the Code.

10. Mr. Mukherjee who appeared for the respondent has filed an application claiming relief by way of injunction on certain allegations made by the respondents in that application. An affidavit in opposition has been filed on behalf of the appellant. As the matter is being remitted to the Special Bench, the decree-holder respondent would have the liberty of renewing his application in that Court.

11. We have perused the objection under Section 47 of the Code of Civil Procedure. The proceedings for recovery of possession have been pending for a long time. It is necessary that the appeal before the Special Bench should be heard at an early date. If the Special Bench finds it difficult to hear the appeal at an early date, it will pass necessary orders on the application which may be filed on behalf of the respondent for reliefs analogous to those prayed for in the petition filed by the respondent in this Court, We however express no opinion on the merits of the petition.

12. Costs of this appeal will abide the result of the appeal before the Special Bench.

Mitter, J.

13. I agree.


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