1. The question we are called upon to decide in this rule is whether the Court below was competent to stay the hearing of an appeal pending before it. The appeal arose out of a suit for ejectment of a non-agricultural tenant, and was preferred by the tenant defendant against whom a decree for ejectment had been made by the trial Court. While the appeal was pending, the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, came into force, and thereupon the appellant himself applied for stay of the appeal, claiming that he was entitled to it as of right under the provisions of this Act. Agreeing with this contention, the lower appellate Court made the order for stay, and it is against this order that the plaintiff landlord has obtained this rule.
2. The petitioner's main point is that the Act is ultra vires of the Provincial Legislature. This is a question involving the construction of certain sections of the Government of India Act, 1935, which requires careful consideration, but we do not propose to go into that matter in the present rule, as in our opinion we can dispose of it on the other ground which the petitioner raises, namely that the provisions for stay contained in this Act do not apply to an 'appeal.' These provisions are embodied in Section 3 and also in Section 6, the difference between the two sections being that the former refers to suits and proceedings commenced after the Act has come into force, and the latter to suits and proceedings which were pending at the date of commencement of the Act. Section 6, however, attracts in terms of the provisions of Section 3. The short point which arises is whether the words 'every suit and proceeding in any Court for ejectment of a non-agricultural tenant' used in these sections can be said to include an appeal. I had occasion recently to consider this very question in Jahur Mia v. Abdul Gaffur Mia Reported in : AIR1941Cal452 , which came on for hearing before Mukerjee J., and myself, and I took the view that an appeal does not come within the scope of these words, though my learned brother reserved his opinion on the point. In coming to this conclusion, I held that the scope and intendment of the Act should be the guide to a correct interpretation.
3. An appeal undoubtedly arises out of a suit, and may in a sense be regarded as a proceeding in the suit itself, in the same way as an execution proceeding may be so regarded. It does not follow, however, that the word 'suit' must, therefore, in every case and for all purposes include an appeal. Whether it will or will not include an appeal, will, in my opinion, depend on the subject and context in connexion with which the word is used. Mr. Prafulla Kumar Roy, advocate for the opposite party, arguing against the view expressed in my judgment in the other case, was content to rely on the word 'suit,' and not 'proceeding,' as covering an appeal, and his contention was that the word must be given the wider meaning, unless the subject and context required a more limited interpretation. In support of this argument, he referred to a number of sections of the Code of Civil Procedure, and endeavoured to show that in these sections a suit could not but be regarded as including an appeal. He made the point that while the adoption of this construction would give these provisions a consistent and reasonable meaning, involving no repugnancy whatever, to hold otherwise would lead to the anomalous result of the Code making provision for certain matters in respect of suits, but no corresponding provision for appeals. I am not much impressed with this argument. In the first place, it is not right or relevant to refer to or rely on the provisions of one statute in construing those of another, particularly when it is not in pari materia, and secondly taking the Civil Procedure Code itself, I think the Code clearly recognizes the distinction between a suit and an appeal which are in fact regarded as representing two distinct proceedings, and while it may be that in regard to certain matters no separate provision is expressly made for appeals, the context will probably show that in these respects appeals are intended to be governed by the same provisions as apply to suits.
4. Mr. Roy's next point was that the scope and object of the Act itself showed that the stay provisions were intended to apply to appeals as well as to suits, and that the only reason why the Legislature did not expressly mention appeals is that a 'suit' was deemed to include an 'appeal.' According to the learned advocate, in enacting this measure which was avowedly of a temporary character, the object of the Legislature was not merely to secure tenants against actual ejectment for the period the Act was to remain in force, but also to render it unnecessary for them during such period to take or prosecute any steps to set aside any decree for ejectment that may have been already passed against them. In other words, it was said, the object was to maintain the status quo between the parties so long as the permanent legislation envisaged by the Act was not enacted. This would necessarily require a stay of all proceedings between landlord and tenant in which the question of ejectment was involved, whether they were proceedings by the landlord for ejectment or proceedings by the tenant to avoid ejectment. Otherwise, Mr. Roy contended, it would have been enough for the Legislature to have provided only for stay of execution proceedings under a decree for ejectment, and not for suits at all, but in fact they have expressly mentioned 'suits' as well as 'proceedings.'
5. I do not think there is any force in this argument. The word 'suit' was mentioned, because it was itself a proceeding for ejectment, while an appeal might or might not be such a proceeding, according as it was by the landlord or by the tenant. As the preamble as well as the body of the Act shows, what the Act aims at is to give relief to the class of tenants for whose benefit it has been enacted, only by way of a compulsory stay of all actions and proceedings for ejectment against them, and to that extent it seeks to maintain the status quo. But as I have explained in my other judgment, the Act does not contemplate stay of a proceeding which is not one for ejectment, but a proceeding directed against an order of ejectment. I do not think we should be justified in disregarding the words 'for ejectment' which occur in the sections as if they were of no effect. To hold that an appeal was included within the word 'suit' would be to hold that even where the appeal was by the tenant against a decree for ejectment, it should have to be regarded as a proceeding for ejectment, which ex hypothesi it is not. In my opinion, any construction which would lead to such a result ought to be avoided.
6. In any case, it seems to me that a tenant's appeal against a decree for ejectment can, in no sense, be brought within the words 'suit for ejectment.' Having considered the matter further in the light of the arguments put forward by Mr. Roy, I see therefore no reason whatever for altering the opinion I had previously formed. The result is that the rule must be made absolute and the stay order made by the Court below vacated. The petitioner is entitled to his costs. We assess the hearing fee at 2 gold mohurs. As already stated, the question of ultra vires is left open. Let the record be sent down at once.
7. I agree.