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Sahadat Khan Vs. Mohammad Hossain - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 2160 of 1952
Judge
Reported inAIR1954Cal347,57CWN948
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Sections 8, 9, 16, 32 and 32(6); ;Code of Civil Procedure (CPC) , 1908 - Sections 4 and 141 - Order 9, Rule 13 - Order 43, Rule 1
AppellantSahadat Khan;mohammad Hossain
RespondentMohammad Hossain;sahadat Khan
Appellant AdvocateSudhansu Kr. Sen, Adv.
Respondent AdvocateBenoyendra P. Bagchi, Adv.
Cases ReferredLtd. v. James Chadwick and Bros. Ltd.
Excerpt:
- .....the question is whether the procedure before the judge, 2nd bench was governed by the code of civil procedure.7. the rent control act, 1950, does net specifically make the code of civil procedure applicable to a suit under section 16 of the act. the preamble and section 1, civil p. c. make the code applicable to all proceedings before a court of civil judicature. section 16 and schedule b of the rent control act 1950 specifically provide that thechief judge or any other judge of the calcutta court of small causes shall while trying a suit under section 16, function as a court under the bengal, agra and assam civil courts act 1887 ,i.e., as a court of civil judicature. accordingly the procedure before the chief judge or any other judge of the calcutta court of small causes trying a.....
Judgment:

G.N. Das, J.

1. This rule was obtained by the defendant petitioner and is directed against an order dated 17-6-1952 passed by Shri S. C. Sen Gupta, Chief Judge and Shri S. K. Roy, Judge 6th Bench. Court of Small Causes, Calcutta dismissing an appeal from an order dated 3-5-1952 passed by Sri P. M. Lahiri, Judge, 2nd Bench.

2. The facts are as follows:

In 1951, the plaintiff opposite party instituted a suit for ejectment of the defendant petitioner on the ground that he reasonably required the portion of the premises No. 3 Ripon Lane, Calcutta held by the defendant petitioner as his tenant ata rent of Rs. 60 per month, for his own use andoccupation. The suit was valued at Rs. 720/- only. The suit was decreed ex parte on 14-1-1952 and in execution of the said decree the plaintiff opposite party took possession. The defendant petitioner thereupon filed an application under Order 9, Rule 13, Civil P. C. for setting aside the ex 'parte decree on the ground that no notice or summons of the suit was served on him and that he came to Know of the suit for the first time when, the plaintiff opposite party took possession. The application was dismissed on 3-5-1952 by Shri p. M.. Lahiri Judge 2nd Bench.

3. Against this order the defendant petitioner filed an appeal before a Special Bench constituted in accordance with Section 32(6) (ii), West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 hereinafter called the Rent Control Act 1950. The appeal was heard by a Special Bench consisting of the Chief Judge and the Judge 6th Bench and was dismissed on 17-6-1952. The appeal was dismissed on the ground that no appeal lay from the order of the Judge, 2nd Bench, The Special Bench did not record any reasons for the view taken by it.

Against the order of the Special Bench the defendant petitioner moved this Court in revision under Section 115, Civil P. C. and obtained the present rule.

4. Mr. Sen, learned Advocate for the defendant petitioner has contended that an appeal lay from the order of the Judge 2nd Bench to the Special Bench.

Mr. Bagchi, learned Advocate for the plaintiff opposite party, has, on the other hand urged that the Rent Control Act 1950 provides for an appeal merely from a decree in a suit for ejectment and-necessarily excludes a right of appeal from an order passed in such a suit.

5. The Rent Control Act 1950 has provided for a special forum for the trial of suite for recovery of possession of premises to which the Act relates, Section 16 of the Act provides that such a suit for ejectment 'shall lie to the Courts as set out in Sen. B'.

Schedule B (1) (ii) provides that where the disputed premises are situate within the ordinary original jurisdiction of the Calcutta High Court and the rent thereof for one month is less than Rs. 500/-, the Chief Judge of the Calcutta Court of Small Causes 'shall entertain and try the suit as a Court of the District Judge under the Bengal, Agra and Assam Civil Courts Act, 1887'. The rule is subject to a proviso that the Chief Judge-'shall be entitled to transfer the suit for trial to any other Judge of the Calcutta Court of Small Causes, who shall try it as a Court of the Subordinate Judge under the Bengal, Agra and Assam Civil Courts Act, 1887.'

In pursuance of the above rule the instant suit for ejectment was filed before the Chief Judge and on transfer, was heard by the Judge, 2nd Bench. The suit was accordingly heard and disposed of by the latter as a Subordinate Judge.

6. The question is whether the procedure before the Judge, 2nd Bench was governed by the Code of Civil Procedure.

7. The Rent Control Act, 1950, does net specifically make the Code of Civil Procedure applicable to a suit under Section 16 of the Act. The preamble and Section 1, Civil P. C. make the Code applicable to all proceedings before a Court of Civil Judicature. Section 16 and Schedule B of the Rent Control Act 1950 specifically provide that theChief Judge or any other Judge of the Calcutta Court of Small Causes shall while trying a suit under Section 16, function as a Court under the Bengal, Agra and Assam Civil Courts Act 1887 ,i.e., as a Court of Civil Judicature. Accordingly the procedure before the Chief Judge or any other Judge of the Calcutta Court of Small Causes trying a suit under Section 18 of the Rent Control Act 1950, shall be governed bv the Code of Civil Procedure.

8. Mr. Bagchi drew our attention to Rules 8 & 9 of the West Bengal Premises Bent Control Act 1950 and contended that as these rules provide for a limited application of the Code of Civil Procedure, the implication must be that the general application of the Code of Civil Procedure is excluded. The above rules deal with specified cases viz., summoning of witnesses etc. and the procedure for certain inquiries. The object of framing these rules was to lay down a procedure diverging from that laid down in the Code of Civil Procedure. The intention was not to exclude other provisions of the Code of Civil Procedure.

9. Mr. Bagchi also referred us to Section 4, Civil P. C. and submitted that the section excluded the applicability of the Code to proceedings under the Bent Control Act, 1950. This argument is based on a misreading of Section 4, Civil P. C. That section merely lays down that the Code of Civil procedure shall not 'limit or affect any special or local law', in other words, the provisions of the Code of Civil Procedure which run counter to the special or local law, are excluded. The section does not bar the applicability of the Code where the special or local law is silent.

10. I shall now refer to the Judicial decisions on this question. In the case of -- 'Mirabala Dasi v. Binapani Dassi', : AIR1954Cal163 (A), a Bench of this Court (Das Gupta and Lahiri JJ.) held that

'the consequence of the provisions of Schedule B indicated above is that the code of Civil Procedure is fully applicable to the trial of these suits and to appeals from decrees made therein' (p. 164).

In the cases of -- 'Bhupesh Chandra Dutt v. Dr. M. N. Bose', : AIR1953Cal198 (B) and --'Sheo Sankarlal v. Bijoy Krishna Dutt', : AIR1953Cal218 (C), the applicability of Order 21, Rule 97, Civil P. C. to proceedings in execution of a decree irt a suit under Section 16 of the Rent Control Act 1950 was assumed. Again in the case of -- 'S. N. Talepatra v. Bengal Bonded Warehouse', : AIR1953Cal598 (D), the applicability of Order 21, Rule 100 of the Code to proceedings in execution of a decree in a suit under Section 16 of the Rent Control Act 1950 was assumed.

In a recent Bench decision of this Court, to which I am a party viz., the case of -- 'Dalhousie Traders Ltd. v. Md. Sadik', : AIR1954Cal220 (B), it was held that Section 47, Civil P. C. was applicable to proceedings in execution of a decree made in a suit under Section 16 of the Bent Control Act 1950 and that an appeal lay to the Special Bench constituted under Section 32(6) of the Rent Control Act 1950.

11. The above discussion leads me to hold that the Code of Civil Procedure applies to suits filed under Section 16 of the Bent Control Act, 1950.

The same conclusion is reached on general principles governing similar cases.

The princinle was thus stated by the Judicial Committee of the privy Council in the case of --'Adaikapm Chettiar v. R. Chandrasekhare Thevar', AIR IMS PC 12 (P).

The true rule is that where a legal right is in dispute and the ordinary courts of the country are seized of such dispute, the courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such, rules notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal.

The above principle has been applied by the Supreme court in the case of -- 'National Sewing Thread Co., Ltd. v. James Chadwick and Bros. Ltd.', : [1953]4SCR1028 (G).

My conclusion therefore is that the code of Civil Procedure is attracted In the instant case. Accordingly Order 9, Rule 13 of the code is applicable, and an order rejecting an application under Order 9, Rule 13 is appealable under Section 104(1)(i) read with Order 43, Rule 1, Clause (d) of the Code.

12. Mr. Bagchi however contended that Chapter 7 of the Rent Control Act 1950 was exhaustive of the cases in which an appeal lay against an order made in proceedings under the Act.

The contention has no force. Section 32(1) (2) (3) deals with appeals from any final order of a Rent Controller. Section 32(4) confers on the High Court the power of revision in respect of an order made in appeal from a final order of the Bent Controller.

Section 32(5) confers powers of amendment or review of orders made by the Bent Controller or the Appellate Officer or the High Court in relation to proceedings initiated before the Bent Controller.

Thus Sub-sections (1) to (5) of Section 32 do not deal with suits filed under Section 16 of the Bent Control Act 1950.

Section 32(6) of the Act doss not expressly pro-vide that an appeal shall lie from a decree passed in a suit under Section 16 of the Act. It merely prescribes the forum of the appeal from a decree In a suit under Section 16 of the Act. Of course the Implication is that an appeal lies. The relevant words are '....the appeal shall lie to ....'.

13. The position therefore is that the Rent Control Act 1950 is silent on the question whether an appeal lies against an order made in a suit under Section 16 or in proceedings in execution of a decree made in such a suit.

In such a case, the principles enunciated in --'Adaikappa's case (F)' cited already clearly apply. A legal right as between the plaintiff opposite party and the defendant petitioner was in dispute. The Judge, 2nd Bench who had to decide the dispute functioned as a Civil Court. Accordingly the order made by him was appealable in accordance with the ordinary rules of procedure i.e. the Code of Civil Procedure. An appeal therefore lay against an order made by the Judge, 2nd Bench, even though the special or local Act i.e. the Rent Control Act 1950 was silent.

14. The question still remains to what forum the appepal shall lie.

I have held that the Code of Civil Procedure shall apply in the present case.

Section 106 of the Code provides that an appeal from an order made in a suit shall lie 'to the Court to which an appeal shall lie from the decree in the suit in which such order was made.'

An appeal from a decree in a suit under Section 18 of the Bent Control Act 1950 lies to the courts specified in Section 32(6) of the Act, i.e., to a Bench of the Chief Judge and ft Judge other than the Judge who tried the suit or made the order appealed from.

The appeal was, therefore, competent and was properly filed. The Special Bench was, therefore, in error in holding that no appeal lay in the present case.

15. In the result, the order of the Special Bench complained of must be set aside and the matter remitted to a Special Bench as contemplated by Section 32(6)(ii) of the Rent Control Act 1950 for decision of the appeal according to law.

The Rule is made absolute. The plaintiff opposite parties must pay the costs of the rule. Hearing fee 3 gold mohurs.


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