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Rajani Kanto Das Vs. Dayal Chand De and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1260 of 1949
Judge
Reported inAIR1950Cal244,54CWN376
ActsPresidency Small Cause Courts Act, 1882 - Sections 41 and 48; ;West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 - Sections 8 and 11(3); ;Code of Civil Procedure (CPC) , 1908 - Section 141 - Order 21
AppellantRajani Kanto Das
RespondentDayal Chand De and ors.
Appellant AdvocateSarat Chandra Jana and ;Binodlal Ghosh, Advs.
Respondent AdvocateApurbhadhan Mukherjee, ;Narendra Nath Banerjee and ;Sushil Kumar Banerjee, Advs.
Cases ReferredAmulya Ratan v. Meghmala Dutt
Excerpt:
- .....claims. this is recognised in the form of section 141, civil p. c., as applied to the calcutta courts of small causes by this court in exercise of its powers under section 8, civil p. c., itself. the section as adapted for those courts is as follows:'the procedure provided in this code and in the presidency small cause courts act, 1882, in regard to suits shall, as far as it can be made applicable and, except as therein otherwise provided be followed in all proceedings . .... in line court of small causes of calcutta.'the words 'and except as therein otherwise pro-vided' have reference to provisions in the small causes court act such as those of section 48.11. apart from the provisions of section 48, this would make applicable, to all proceedings other than suits, in the courts, the.....
Judgment:
ORDER

Roxburgh, J.

1. This is a Rule obtained against an order of the Registrar of the Court of Small Causes, Calcutta, rejecting an application before him by a sub-tenant, There was a proceeding by Dayal Chand Dey and Murari Mohan Dey under Chap. VII, Presidency Small Cause Courts Act, 1882, against Baidynath Seal, in which an order was passed on 13th July 1949, thus : 'By consent the suit is decreed with costs.'

2. The petitioner claims to be the sub-tenant of Baidyanath Seal and considers that in effect he cannot be removed from the part of the premises which he holds as a sub-tenant under Baidyanath Seal in view of the provisions of Section 11 (3), West Bengal Premises Rent Control Act, 1948. He also in his application made some reference to Section 18 of that Act (which appears to me to have no bearing on the present question at all) and made a number of somewhat strange prayers which it is not necessary to set out; but his principal prayer was that a notice be issued on the opposite party, namely, the plaintiffs and defendant in the proceeding under Chap. VII 'to show cause why the applicant, the lawful sub tenant under the defendant, should not be deemed to be a tenant direct under the plaintiffs and the decree passed without the knowledge of the applicant be rescinded or varied under Section 11, Clause (3) and Section 8, West Bengal Premises Rent Control Act, 1948 and in the meantime all further proceedings and execution be stayed in the meantime.'

3. The learned Registrar has remarked in his order :

'As there is no special provision that the substantive right granted to a sub-tenant under Section 11 (3), West Bengal Premises Rent Control Act, 1948 can be enforced by an application in this Court, the Small Cause Court cannot entertain the matter.'

4. He has stated further that 'the applicant has, therefore, to bring a regular suit in the Hon'ble High Court and obtain an order staying delivery of possession ...' He granted a short stay to give the applicant time to file his suit.

5. It would seem that perhaps through some misunderstanding of the effect of the provisions of Section 16, West Bengal Premises Rent Control Act, the Registrar has come to believe that some alteration has been made in the provisions of the Act so that the Court now has a power to try a suit for ejectment; otherwise it is not easy to understand why the order is passed in the form quoted above that the suit was decreed by consent. The position has been discussed in the case of Amulya Ratan v. Meghmala Dutt, 53 C. W. N. 474. The proceedings under Chap. VII, are not a suit and indeed, Section 14 of the Act, under whose provisions power can be conferred on the Registrar to deal with such proceedings, specially provides that for the purpose of that section only that shall be deemed to be a suit. The point is of some importance in considering whether the learned Registrar is correct in saying that there is no provision that rights of the sub-tenant under Section 11 (3), West Bengal Premises Rent Control Act can be enforced by an application in the Court of Small Causes.

6. In my opinion, the matter is provided for in Section 48, Presidency Small Cause Courts Act which lays down that in all proceedings under Chap. VII, the Small Cause Court shall

'as far as may be and except as herein otherwise provided follow the procedure prescribed for a Court of first instance by the Code of Civil Procedure.'

Ordinarily, the Small Cause Court by virtue of the provisions of Section 19 (d) of the Act, which bars the Court's jurisdiction in suits for recovery of immovable property, has nothing to do with immovable property either in suits or in execution. But there are some special provisions in the Act which do result in the Court having some jurisdiction in respect of immovable property. One provision is Section 28 dealing with a matter of structures attached to immoveable property and other provisions are in Chap. VII. Chapter VIII also relating to distresses gives special procedure for the recovery of rent due which, at any rate, brings the Court in its proceeding in the same relation with immovable property. It seems to be a fundamental necessity of natural justice that the party who is not bound by the proceeding in a Court should not be deprived of his possession of property by any act of that Court. As a corollary it is natural to find provision that any person who considers that he is not so bound will have an opportunity, if he finds he is affected by the orders of the Court, to come before the Court and at least to air his objection.

7. If the order of the learned Registrar, as given in the present form, is correct, then the provisions of the law relating to the procedure of the Presidency Small Cause Court are such that the sub-tenant, although he contends that he is in no way bound by the order of the Court, cannot be heard by the Court. In my opinion, the view of the Registrar is not correct.

8. The provisions of the Presidency Small Cause Courts Act as regards the procedure are unfortunately in a somewhat jumbled condition. Some attempt has been made to clarify matters by the issue in January last year by this Court of Rules of practice and procedure and the like made under the appropriate provisions of the Presidency Small Cause Courts Act and the Code of Civil Procedure. In the case of the ordinary Courts, a person in the position of the present applicant would come before the Court with an application under Order 21 Rule 97, or rather 98, or Rule 100 and his objection would be heard. It is probable, as Mr. Mukherjee points out, that ordinarily in the case of sub-tenants the result would be that his application would fail on the ground that it would be held that he was bound in any case by the decree against his lesser, but at any rate there is a procedure provided by which he at least can have his objection heard by the Court to the order which, if enforced, will dispossess him. In the rules framed under Section 9, Presidency Small Cause Courts Act, there is provision for such a procedure in the specific case of a claimant to structures dealt with under Section 28. I refer to the rules in Chap. XXI under the heading 'Resistance to delivery to purchaser'--Rule 69 under the heading specifically referring to property mentioned in Section 28 of the Act, and Rr. 71 and 73 giving power to the Court to pass an order either in favour of or against the objector.

9. In the case of distresses under Chap, VIII, the Act itself provides a procedure in Section 61 for adjudication of claim cases in such matters by a Judge of the Small Cause Court. Incidentally, the Act itself in that section makes provision that the procedure of the Small Cause Court in cases under Section 61 is to conform so far as may be to the procedure in an ordinary suit in such Courts.

10. Are we then to say that in the case of a proceeding for recovery of possession under Chap. VII of the Act the person claiming to be in no way bound by the Court's order has no remedy because there is no procedure providing for him to be heard In my opinion, the answer is clearly, no, and the reason why no specific rules have been framed under Section 9 of the Act for such a procedure are that such rules could not be framed because of the provisions of Section 48 in Chap. VII itself which I have already referred to. The Act itself provides that the procedure in the Small Causes Court in these matters under Chap. VII is to be the same as that prescribed in what may be called a mofussil Court by the Civil Procedure Code. In my opinion, this automatically brings into operation the provisions of chap. (Order?) XXI and in particular the rules relating to the procedure for hearing claims. This is recognised in the form of Section 141, Civil P. C., as applied to the Calcutta Courts of Small Causes by this Court in exercise of its powers under Section 8, Civil P. C., itself. The section as adapted for those Courts is as follows:

'The procedure provided in this Code and in the Presidency Small Cause Courts Act, 1882, in regard to suits shall, as far as it can be made applicable and, except as therein otherwise provided be followed in all proceedings . .... in line Court of Small Causes of Calcutta.'

The words 'and except as therein otherwise pro-vided' have reference to provisions in the Small Causes Court Act such as those of Section 48.

11. Apart from the provisions of Section 48, this would make applicable, to all proceedings other than suits, in the Courts, the procedure ordinarily applicable to suits, as is done in Section 141, Civil P. C., itself. But the adapted section recognises that as a special provision with regard to procedure for matters under chap. VII has been laid down in Section 48 of the Act itself, this Court by adaptation of Section 141 under Section 8, Civil P. C., could not alter that provision. I may add as my own opinion that matters could be much simplified if the Presidency Small Cause Courts Act were amended so that all the procedure could be provided for in one place as it were instead of being scatter-ed about as it is, partly in the Act by reference in sections like Sections 48 and 61 and partly by adaptation of the Code and partly by rules made under Section 9. That is, however, purely a personal opinion. I merely mention it because it seems that owing to those difficulties the actual provision applicable in the present case seems to have been lost sight of. In my opinion, therefore, the appropriate order that the learned Registrar should have made was merely to point out that the application in the form in which it stood could not be dealt with, but that the applicant, if he considered he had a grievance and a right, and if and when the order of the Court was sought to be enforced so as to affect his right, could come to the Court under the appropriate provision under Order 21 of the Code and he would be heard.

12. I wish to make it clear that in what I am saying I am not in any way suggesting anything as to what would be the actual result of such an application, or what exactly are the rights of the sub-tenant under Section 11 (3), West Bengal Premises Rent Control Act, or what would be proper order for the Court to pass in view of the alteration in the law made by those provisions. The point in this matter arises mainly from the fact that the learned Registrar's order, as it stands, is based on a wrong view of the position with regard to procedure and partly from the fact that my attention has been drawn to several cases in which various applications of various kinds to enforce the right under Section 11 (3), West Bengal Premises Rent Control Act had been made and the parties have simply been told that that particular method of applying is a wrong one. I have not seen in any case anywhere any suggestion as to what is the correct procedure for the sub-tenant to follow.

13. The result in any case is that the rule is discharged. I make no order as to costs.


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