Skip to content


Bishno Charan Vs. Birendra Krishna Mazumdar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 540 of 1951
Judge
Reported inAIR1953Cal261,56CWN753
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Sections 6, 14, 18(1) and 18(5)
AppellantBishno Charan
RespondentBirendra Krishna Mazumdar and ors.
Appellant AdvocatePravas Ch. Chatterji, Adv.
Respondent AdvocateLala Hemanta Kumar, Adv.;Sambhunath Banerjee, Adv.
Cases ReferredAshgar Hossain v. Official Trustee of Bengal
Excerpt:
- .....of tenancy under the rent control act of 1948 in summary proceedings instituted under chap. vii, presidency small cause courts act. the order directed possession to be given on january 3, 1951. on 31-3-1959 the rent control act of 1950 came into force. the latter act was amended by the amendment act of 1950 which came into force on november 30, 1950. on january 2, 1951 the tenant applied for vacating the order for possession. on january 8, 1951. the court directed payment of a certain sum of money and on such payment on january 19, 1951 vacated the order for possession. the landlord has moved this court in revision against the order dated january 19, 1951. 2. it is now settled law that the expression 'decree for recovery of possession' in section 18(1). rent control act of 1950.....
Judgment:

Bachawat, J.

1. On December 6, 1949 the landlord petitioner obtained from the Small Cause Court an order for recovery of possession of the premises from the tenant opposite party on the ground of ipso facto termination of tenancy under the Rent Control Act of 1948 in summary proceedings instituted under Chap. VII, Presidency Small Cause Courts Act. The order directed possession to be given on January 3, 1951. On 31-3-1959 the Rent Control Act of 1950 came into force. The latter Act was amended by the Amendment Act of 1950 which came into force on November 30, 1950. On January 2, 1951 the tenant applied for vacating the order for possession. On January 8, 1951. the Court directed payment of a certain sum of money and on such payment on January 19, 1951 vacated the order for possession. The landlord has moved this Court in revision against the order dated January 19, 1951.

2. It is now settled law that the expression 'decree for recovery of possession' in Section 18(1). Rent Control Act of 1950 includes an order for recovery of possession under Chap. VII, Presidency Small Cause Courts Act. This was first decided in -- 'Atulyadhan v. Sudhangsu, 55 Cal W. N. 343. In that case Das J. observed that ordinarily decree means the formal expression of an adjudication made in a suit which conclusively determines the rights of the parties so far as regards the Court expressing it is concerned but that in certain parts of the 1950 Act the term suit may include proceedings under Chap. VII, Presidency Small Cause Courts Act.

3. It follows from the reasons given in that decision and Lahiri J. so decided in -- 'Dhanesh Prokash v. Lalit Mohan', 55 Cal W. N. 347 that the word 'suit' in Section 18(5), Rent Control Act of 1950 includes a proceeding for recovery of possession under Section 41, Presidency Small Cause Courts Act. Lahiri J. held that for purposes of Sub-section (5) of Section 18 proceedings in which no order for recovery of possession is passed is pending and the tenant is entitled to relief under that sub-section.

4. In this case the application for vacating the order for possession not being made within 60 days of the coming into force of the Rent Control Act of 1950 was not maintainable under Sub-section (1) of Section 18.

5. It is however contended on behalf of the tenant that on the date of the coming into' force of the Rent Control Act of 1950 the proceedings for recovery of possession was pending in the trial Court and the tenant could ask for relief under Sub-section (5) of Section 18.

6. Quite clearly Sub-section (5) of Section 18 can have no application if an order for possession had been made before the relevant date. In terms it applies to proceedings in which the order for possession would be passed. It does not empower the Court to vacate the order for possession. Read with Section 14 it gives the Court the power to order amendment of pleadings, production of evidence and eventually to order dismissal of the proceedings if certain, conditions are fulfilled. The Court cannot exercise such power in proceedings in which an order for possession. has already been passed.

7. Sub-section (1) of Section 18 provides for the Case where an order for possession has been passed before the relevant date. It has been held in a series of decisions that in such case the tenant is entitled to apply for vacating the order under that sub-section. See --'Atulya Dhan v. Sudhangsu', 55 Cal WN 343; --'Iswari Prosad v. N.R. Sen', 55 Cal WN 719(S.B.); -- 'Shibram v. Subodh Kumar', 56 Cal WN 82(S.B.); ---'Satyanarain v. Sewmurat',' 56 Cal WN 167(S.B.). Such application of course must be made within 60 days from the relevant date.

8. Reading Sub-sections (1) and (5) of Section 18 together it must be held that if an order for recovery of possession has been passed, the proceedings are no longer pending and the tenant can get no relief under Sub-section (5). It will be anomalous to hold that the tenant is entitled to the same relief under both sub-sections on the same state of facts and while relief under Sub-section (1) is barred by lapse of time, relief under Sub-section (5) is not so barred.

9. I am aware of decisions in which it has been held that for purposes of Section 47, Presidency Small Cause Courts Act the proceedings must be regarded as pending until actual delivery of possession and that the tenant under that section is entitled to a stay of proceedings though an order for possession has already been passed: --'Mathuradas Vassanji v. Tulshidas Damodar', ILR (1950) Bom 453. See also --'Monomohan v. Umarani', 54 Cal WN 931. Incidentally in the report of the latter case 'Section 47, Civil P.C.' seems to be a misprint for 'Section 47, Presidency Small Cause Courts Act'. I agree that for the purpose of Chap. VII, Presidency Small Cause Courts Act the proceeding is pending until delivery of actual possession and does not terminate on the making of the order for possession. Such proceeding is not commenced by a plaint and therefore strictly is not a suit.

10. We are, however, dealing with Section 18, Rent Control Act for the purposes of which the summary proceedings must be treated as a suit and the order for recovery of possession must be regarded as a decree.

11. It has been well observed that the summary proceedings under Chap. VII, Presidency Small Cause Courts Act is a proceeding 'sui generis' and partake of a mixture of suit and execution proceedings. The summary proceeding is commenced by an application under Section 41, Presidency Small Cause Courts Act. Under Section 43 of that Act the Court can make an order addressed to the bailiff directing him to give possession on a date to be named in the order. Under this section on being satisfied that the landlord is entitled to make the application the Court at first makes an order for recovery of possession and fixes the date on which possession is to be delivered. This order has important consequences. It is final so far as the Court of Small Causes is concerned and cannot be varied by that Court: --'Official Trustee of Bengal v. Taj Mahammad', 48 Cal WN 11; --'Jamshedji Hormasji v. Gordhandas Gokuldas, 45 Bom 1048. The actual writ of possession addressed to the bailiff is issued subsequently. The form of the writ is given at p. 238 of Vol. 2 of the Manual of the Court of Small Causes, 1949 and the procedure for taking it out is prescribed by Rules 109 and 110 of the same Volume. The writ specifies the date on which possession is to be given. The bailiff can execute this writ under Section 44 of the Act. It has been held in --'Ashgar Hossain v. Official Trustee of Bengal', 47 Cal WN 656, that the order does not lose its force if it cannot be executed on the date named and that the Court can make the writ effective by extending the time for its execution. Assuming that the Court has this power the order for extension must be regarded entirely as an order made in execution.

12. A suit for the recovery of possession on the other hand is commenced by a plaint and terminates when a decree for possession is passed. The decree-holder has to apply formally for execution of the decree. On such application the Court orders execution of the decree and issues its process for execution. The decree is then executed under Order 21, Rule 35 C. P.C.

13. Technically a summary proceeding under Chap. VII, Presidency Small Cause Courts Act is one entire proceeding and does not terminate until actual delivery of possession. But if the summary proceeding is treated as a suit and if the order for recovery of possession is treated as a decree for the purposes of Section 18, Rent Control Act 1950 it must also be held for the purposes of that section that the proceedings terminate in the order for recovery of possession and that further proceedings are in the nature of execution of that order. On the same analogy the taking out of a writ of possession must be treated as an order for delivery of possession for the purposes of Sub-section (1) of Section 18.

14. Reading Sub-sections (1) and (5) of Section 18 together for purposes of that section the proceedings must be regarded as pending only as long as the order for recovery of possession has not been passed.

15. In this case the record does not show if a writ of possession had been taken out and delivered to the bailiff. Assuming that such writ has not been taken out the proceedings cannot still be regarded as pending for the purposes of Section 18. All proceedings subsequent to the order for recovery of possession must be regarded for that purpose as proceedings in the nature of execution of that order,

16. The proceeding therefore was not pending on March 31, 1950 for the purposes of Sub-section (5) of Section 18 and the tenant could not ask for relief under that sub-section. The application not being made within the specified period of time was not maintainable under Sub-section (1) of Section 18. The Amendment Act of 1950 does not extend this period. Section 6 of the Amendment Act of 1950 has no application because the order for possession was not passed between March 31, 1951 and November 30, 1951. The order dated January 19, 1951 is therefore set aside and the rule made absolute with costs assessed at 2 gold mohurs.

K.C. Das Gupta, J.

17. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //