1. This is a Rule against an order of the Munsif, 1st Court, Alipore purporting to be under Section 28, Calcutta Thika Tenancy Act, 1949, rescinding a compromise decree for ejectment made in the suit before him on 15th July 1948. The petitioner here, as plaintiff, brought a suit on 9th April 1948, for ejectment of the opposite party alleging that five months' rent was due and also that notice under Section 106, T. P. Act, had been served requiring the defendant to vacate on the expiry of the month of October 1947. It may be noted that in his petition the petitioner alleges that the tenant was in occupation on two leases which expired with the month of October, 1947 and that the notice in question was merely issued out of abundant caution. No reference to the fact of the leases, however, was made in the original suit. The suit was compromised and a decree passed in accordance with the terms thereof. These were, briefly: The plaintiff was to get a decree for ejectment with costs and also a decree for Rs. 125 on account of arrears of rent and Rs. 40 as damages, but the defendant was given an option to remain on the land until the 15th October and then give up peaceful possession by removing some of the structures. For the remainder the plaintiff was to pay Rs. 500. Further, if the tenant vacated in accordance with the terms he was to get an extra Rs. 250 as compensation and then the decree was to have no effect. The decretal amount for arrears of rent, damages and costs was to be deemed to be fully satisfied. If the terms were not complied with, the decree was to remain in full force and effect. The tenant did not vacate and comply with the terms of the contrast although the plaintiff deposited Rs. 750 in Court. On 28th February 1949, the Calcutta Thika Tenancy Act came into force and thereafter the tenant made an application under Section 28 thereof and the Munsif has allowed the application and rescinded the decree.
2. The Munsif had power under Section 28 of the Act to rescind the decree if he was 'of opinion that the decree or order was not in conformity with any provision of this Act other than Sub-section (1) of Section 6 or Section 27.'
The Munsif has interpreted this to mean that he is to treat the suit as though wholly governed by the provisions of the Act although the Act was not in force either at the time of institution of the suit or at the time of the decree. He has held that although strictly speaking the decree could not be said to have been made or the 'ground' of existence of arrears of rent, a ground which, in Section 3 (1) of the Act, has been now made one of the grounds for eviction, nevertheless as there was a claim for arrears and a decree for arrears, he thought that the decree was, even on his interpretation, in this respect in conformity with the provisions of the Act. He has however held that it is not in conformity with the provisions of the Act because the notice given, as appears from the record, was not in accordance with the provisions of Section 4 of the Act which requires at least one month's notice in writing expiring with the end of the month of the tenancy. A notice was sent by ordinary post on 30th September and there was a registered notice, the receipt whereof shows that the notice was refused on 2nd October. Without going into the question further the Munsif has assumed that this shows that at least one month's notice was not in fact given.
3. A preliminary point was taken against this application in revision on the ground that the order of the Munsif under Section 28 rescinding the decree was itself a decree and was therefore appealable to the District Judge. In my opinion the contention is not sound. The power given under Section 28 is a special and extraordinary statutory power given by the statute and an appeal would only lie, in my opinion, if special provisions were given by the Act for an appeal creating a power.
4. Many points were canvassed before me which I do not think it necessary to discuss. In my opinion, the special feature of this case is that the decree in question was a consent decree and although Section 31 of the Act specially provides that nothing in any contract between a landlord and a Thika tenant after the commencement of the Act shall take away or limit the rights of the tenant, by implication there is no bar in the case of a contract made, as in the case of this consent decree, prior to the commencement of the Act.
5. In a proper case, it will be necessary to consider what exact difference was intended by the Legislature between the provisions of Section 28, which deals with rescinding pre-Act decrees which had not been executed, and Section 29, which deals with pending suits and proceedings in execution (necessarily of pre-Act decrees). The latter enjoins the controller on transfer of the pending case,
'to deal with it in accordance with the provisions of this Act as if this Act had been in operation on the date of institution of the suit or proceeding.'
Section 29 also specifically makes a provision excluding the operation of Section 4 (requiring notice) whereas no such exclusion is made in Section 38. On the other hand Section 28 excludes Sub-section (1) of Section 5, (which requires proceedings in ejectment to he instituted before the Controller) whereas Section 29 makes no such exclusion. Section 38 again excludes Section 27 which deals with appeal, review and execution. How this section could ever have been thought to have had any bearing on any question of rescinding a pre-Act decree is beyond my comprehension, but the fact that these exceptions were inserted in Section 28 will in due course have to be considered in trying to interpret exactly what Section 28 means.
6. In any view of Section 28, I cannot see how it can be said, in view of the provisions of Section 31, that a consent decree, even if in some points it is not in conformity with the Act, is not in a broader sense in conformity with the Act in the view that pre-Act contracts may exist having the effect of barring the provisions of the Act.
7. The question of whether a consent decree could be set aside under Section 9B (3), Calcutta House Sent Control Order, 1948, was considered in the case of Haji Mohammad Ekramal Hague v. Rebati Bhusan Mukherjee, 53 C. W. N. 859, in which reference was made to previous cases, some of which were dissented from. The wording of that section is of course different from the wording of either Section 28 or Section 29, Calcutta Thika Tenancy Act, but the view was held that the consent decree could only be set aside where either the decree or the proceedings in the suit showed that the real ground on which the landlord sought eviction was non-payment of rent by the tenant, that is to say, where the tenant had agreed to a decree being made on a ground which was specifically not a sufficient ground under the new Act if arrears had been paid up. Even applying the principle in the present case it would not operate to upset the decree passed. The decree in the case was passed on the ground that proper notice giving at least 15 days' notice had been given to the tenant. There was also the fact, which has now become a 'ground', namely, that there were arrears of rent. There was no agreement by the tenant to overlook the fact that full one month's notice had not been given to him as now required by Section 4 of the Act. The question of one month's notice could never have been present to the minds of the parties for the simple reason that until the Calcutta Thika Tenancy Act was passed there never was any such requirement of notice.
8. Hence for both these reasons I hold that the learned Munsif was in error in his interpretation of the Calcutta Thika Tenancy Act and should not have rescinded the decree.
9. It remains to mention one other point arising out of decisions in the cases of Mohammad Mateen v. Baijnath Bajorta, 54 C. W. N. 287 : (85 C. L. J. 66) and Murari Mohan v. Prokash Chandra, 53 C. W. N. 640: (A. I. R. (37) 1950 Cal 280), where it has been held that before a tenant can claim any of the benefits of the Calcutta Thika Tenancy Act, he is required to show that he is a thika tenant within the meaning of Section 2 (5) of the Act which requires him to show that he holds
'under the system commonly known as 'Thika' 'Thika Masik Utbandi', 'Thika Masik' 'Thika Bastu' or any other like system.'
The learned Munsif has simply assumed without further investigation that the defendant was such a tenant. It was suggested in argument before me that the use of the word 'system' in Section 3 (iv) shows that the wording as used in the Act has a somewhat colourless connotation and that too much stress has been laid in the cases cited on the use of the word in the definition of thika tenant. The practical difficulty seems to be that nobody but the draftsman apparently knows of any real 'system' and therefore it is a matter of some practical difficulty for any thika tenant commonly understood as such, to show that he is a thika tenant within the meaning of the definition. It is true that on the other tide of the picture, unless some distinction is made, then all monthly tenants of many different kinds of premises which nobody would think of describing as 'thika' tenants may bring themselves under the provisions of the Act, provided they put up a suitable shed or two on some open space attached to the premises. These are matters for the Legislature. 1 see no reason to differ from the view expressed in the cases cited, so that even had I been disposed on other grounds to allow this Rule, it would have been necessary to have sent the case bank for the learned Munsif to see if this particular thika tenant could succeed in showing that be belonged to that apparently rare (if at all existent) variety defined in Section 2 (5) of the Act.
10. The result is that this Rule is made absolute. The order of the learned Munsif rescinding the decree is set aside. The case will go back to him for disposal in accordance with the provisions of Section 28, namely, by transferring it to the Controller for execution under the Act. I make no order as to costs.