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Barjiwandas Gujrati Vs. Mohini Mohan Shah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1462 of 1955
Judge
Reported inAIR1956Cal425,60CWN312
ActsPresidency Small Cause Courts Act, 1882 - Sections 14 and 43; ;Code of Civil Procedure (CPC) , 1908 - Sections 8 and 148
AppellantBarjiwandas Gujrati
RespondentMohini Mohan Shah
Appellant AdvocateParty In Person
Respondent AdvocateA.C. Gupta, ;Purushottam Chatterjee and ;Rameswar Saha, Advs.
Cases ReferredBudri Narain v. Mt. Sheo Koer
Excerpt:
- .....and that the tenancy had ipso facto determined passed an order saying 'decreed as prayed. date of possession 21-3-1950'. on 20-3-1950 the landlord made an application that the date of possession be extended from 21-3-1950. then the learned judge passed an order on the 21st march in these words: 'on plaintiff's application the date of possession be extended to 5-4-1950'. thereafter; on successive applications of the landlord the date of possession was extended to different dates until by an order dated 16-7-1953 the learned judge extended the date of possession to 16-9-1953. it was on 11-9-1953 that the present petitioner filed his application praying for'an order that the extension of date of possession granted from time to time and particularly on 16-7-1953 whereby the date of.....
Judgment:

K.C. Das Gupta, J.

1. This Rule is directed against an order of the Judge of the Presidency Small Cause Court, rejecting two applications of the present petitioner, the first of which was filed on 11-9-1953 and the second on 2-4-1954. An application under Section 41 of the Presidency Small Cause Courts Act hereinafter also referred to as the Act was made on 11-7-1949 by the landlord opposite party stating that this defendant was a monthly tenant under the plaintiff in respect of premises No. 45, Nalini Sett Road, that the tenant's interest had determined on his failure to pay rent for three consecutive months and praying 'for recovery of possession of the said room from the defendant.' The defendant stated in his petition that he had been 'persuaded and coerced to consent to be a tenant' and in the same breath denied relationship of landlord and tenant and lastly said that there had been a prescriptive right of defendant's family'. On 20-124949 the Judge holding that the relationship of landlord and tenant had been established and that the tenancy had ipso facto determined passed an order saying 'decreed as prayed. Date of possession 21-3-1950'. On 20-3-1950 the landlord made an application that the date of possession be extended from 21-3-1950. Then the learned Judge passed an order on the 21st March in these words: 'On plaintiff's application the date of possession be extended to 5-4-1950'. Thereafter; on successive applications of the landlord the date of possession was extended to different dates until by an order dated 16-7-1953 the learned Judge extended the date of possession to 16-9-1953. It was on 11-9-1953 that the present petitioner filed his application praying for

'an order that the extension of date of possession granted from time to time and particularly on 16-7-1953 whereby the date of possession had been extended and fixed on 16-9-1953 be cancelled'. Pending the hearing of this application the date of possession was extended by successive orders to 4-5-1955. The application was dismissed on 30-4-1955 and on the same date the date of possession was extended to 31-5-1955.

2. The second application filed on 2-4-1955 was on the ground that as in the application under Section 41 of the Presidency Small Cause Courts Act the plaintiff had asked for recovery of the said room and the order passed was 'Decreed as prayed', the 'decree' drawn up in the ivqrds 'Possession is to be given in respect of premises No. 45, Nalini Sett Road, Calcutta' was not in accordance with the judgment and that this 'decree' should, accordingly, be set aside. This application was also dismissed by the Court below toy his order of 304-1955.

3. The present Rule was obtained on 10th, May 1955 and all proceedings as regards the delivery of possession have been stayed pending disposal of the Rule.

4. The argument that the landlord asked for possession of only a room and not of tlie premises is clearly untenable. If the application is read es a whole there cannot be the slightest doubt that though the words 'the said room' were used, what was really asked for was possession of the entire premises. It has not been anybody's case at any stage that the defendant is in occupation of any one room. The use of the words 'the said room' was obviously a clerical mistake and it would, in my opinion, be entirely wrong of the learned Judge to allow this mistake to weigh with him. Properly 'construed the application discloses clearly and unmistakably a prayer for possession of the entire premises and when the Court ordered 'Decreed as prayed', it was the possession of the premises that was ordered and not possession of any one room. The contention that the 'decree' was not in accordance with the judgment must, therefore fail.

5. The main ground urged in support of the first application filed for cancellation of the orders passed for extension on the date of possession ia that there is no provision of law under which the date could be extended. It is said that as soon, as the first order under Section 43 of the Act was made the Court became functus officio and it had no jurisdiction to pass any further order in' the matter.

6. The question whether once the date of possession has been fixed by an order under Section 43 of the Act, the date can thereafter be altered came up for consideration before Sen, J. in the case of the - 'Official Trustee of Bengal v. Taj Muhammad' 46 Cal WN 11 (A), His Lordship held that the Court had no jurisdiction to extend the time appointed under Section 43 for giving possession. He was of opinion that Section 148, Civil P. C., had no application as that section as it stood in the Code of Civil Procedure applies to the doing of an act prescribed or allowed by the court only. He also said that the decree passed by the learned Judge on 27-5-1940 was a final and unconditional decree and there was no room whatsoever for the exercise of any power of extending time.

7. The question was again raised before Das J. in the case of - 'Asgar Hossain v. Official Trustee of Bengal' 47 Cal WN 656 (B), Das, J. while expressing his entire agreement with the decision of Sen J. in 46 Cal WN 11 (A), held that on the facts before him as there was an application for execution of the decree under O. 21, R. 11. Civil P. C., the extension of time ordered by the Judge was in effect only an extension of time for ,the execution of the writ of possession and was effective in law. In the case of - Commissioners for the Port of Calcutta v. Anil Krishna Mitra' 55 Cal WN 305 (C), Guha, J. relying on the authority of the decision in the case of 'The Official Trustee of Bengal v. Taj Mahammad (A), Supra', held that an order extending the time appointed under Section 43 of the Presidency Small Cause Courts Act for giving possession was bad in -law.

8. 'Since the matter was considered by Sen J. and Das J. this Court by a Notification under Section 8, Civil F. C. directed that Section 148, Civil P. O. with the words 'or by the Presidency Small Cause Courts Act 1882' added after the words 'any act prescribed or allowed by this Code' will apply to proceedings before the Presidency Small Cause Court. On behalf of the opposite party Mr. Gupta has contended that after this amendment of Section 148, Civil P. C. for the purpose of proceeding before the Presidency Small Cause Court the date fixed by the first order passed under Section 43 of the Presidency Small Cause Courts Act as the date on which possession is to be given may be varied by the Court, this being in effect enlargement of a period for the doing of an act for which a period has been fixed by the Court under the provisions of the presidency Small Cause Courts Act, 1882. It was further contended by Mr. Gupta that quite apart from Section 148, Civil P. C. as amended by this Court by its Notification under Section 8, Civil P. C. the power to vary the date fixed by the first order was implicit in the very scheme of the legislation in Chap. VII of the Presidency Small Cause Courts Act.

9. The crucial question, to my mind, is whether the proceeding terminated as soon as the order under Section 43 was made. The substance of the provision of Section 41 is that a person who has possession of any immovable property as a tenant or by permission of another person and has refused to deliver up such property in compliance with a request made to him in that behalf by such other person after such tenancy has determined or permission has been withdrawn, such other person may apply to the Small Cause Court for 'summons' against the person occupying calling upon him to show cause why he should not be compelled to deliver up property. Section 42 contains provisions for the service of summons. Section 43 provides that if the occupant does not appear at the time appointed and show cause to the contrary, the applicant shall 'if the Small Cause Court is satisfied that he is entitled to apply under Section 41, be entitled to an order addressed to a bailiff of the Court directing him to give possession of the property to the applicant on such day as the Court thinks fit to name in such order'. If the words 'on such day as the Court thinks fit to name in such order' did not appear in the section the position would clearly have been that the applicant would be entitled to an order directing the bailiff to give possession of the property and thereafter if the first writ for delivery of possession could not be executed, it would have been open to the Court to issue, a fresh writ for delivery of possession fixing a fresh date. As, however, the section itself mentions that the order on the bailiff would be to give possession on a specified date the question has arisen whether this order can be varied. If by this very order fixing one day as the date' on which the bailiff is to deliver possession the proceedings terminated, the Court can have no further jurisdiction and in that case even Section 148, Code of Civil P. C. would have no application. If, however, the proceedings did not terminate but remained pending before the Court other considerations arise. In - 'Bishnu Charan v. Birendra Krishna' : AIR1953Cal261 , a decision to which both of us were parties, it was held that for the purpose of Section 18(5) of the West Bengal Premises Rent Control Act, 'that the proceedings terminated in the order for recovery of possession and that further proceedings are in the nature of execution of that order'. It is to be noticed, however, that this decision was on the basis that the summary proceeding is treated as basis that the summary proceeding is treated as a, suit and the order for recovery of possession is treated as a decree for purposes of Section 18. of the Bent Control Act, 1950. It has since been held by the Supreme Court that the order for recovery of possession in proceedings under Chap. V cannot be treated as a decree for purposes of Section 18 (5) of the Rent Control Act. Consequently the decision in 'Bishnucharan's case (D)', that the proceedings must be held to be pending for purposes of Section 18 (5) is of no assistance for our present purposes. In the case of - 'Bankim Chandra v. Sarjoo Tewari' : AIR1954Cal14 , this Court ( Das and Debabrata Mukherjee JJ.) has to consider whether the making of an order under Section 43 of the Presidency Small Cause Court Act bars the making, of an application under Section 47 of the Act. Das J. after pointing out that the relevant enquiry for the decision of this question was when did the proceedings under Section 48 terminate, ultimately came to the conclusion that the proceedings which are contemplated by Section 48 cannot be said to have terminated till the reliefs' contemplated by that section are properly worked out - in other words, till possession which the bailiff has been directed to give has been given.

10. Once that conclusion is reached the position clearly is that where an order has been passed fixing a particular day for the delivery of possession by the bailiff, the Court may, for sufficient reason, alter the date. Once the proceeding has started it becomes the duty of the Court till the proceedings terminate to pass not one single order but as many orders as may be necessary to make the proceeding 'effective. Thisduty of the Court does not disappear merelybecause the date previously fixed has expired. Mr.Guzrati who argued the case before us in personcontended that the decision of the Supreme Courtin the case of - 'Nalinakhya Bysack v. ShyaraSundar Haldar' : [1953]4SCR533 , hasthe effect of overruling the decision of this Courtin : AIR1954Cal14 . It is to be noticedhowever that what the Supreme Court held wasthat the order passed under Section 43 was 'final'under Section 37 of the Presidency Small Cause CourtsAct. It had not to consider and did not considerwhether it was final in the sense that the proceedings termnated. In my judgment the SupremeCourt decision the case of - 'NalinakshyaiBysack v. for ''Xdar Halder (P)', in no waytouches the authour of the decision of thisCourt in - 'Bankimdra v. Sarjoo Tewari(E)'. I have, therefore save to the conclusionthat though the section fiff does not say whether one single order can be passed or any number of orders can be passed, the correct positionin law is that the proceedings commenced underSection 41 of the Act remain pending till the relief hasbeen worked out and when the scheme of the legislation in Chap. VII is considered as a whole it isproper to note that it is implicit in Section 43 thatsuccessive orders fixing different dates of posses-sion can be passed by the Court. The orderspassed 'extending' the date should, in my opinion, be considered to be in substance fresh ordersfixing different dates of possession.

11. In this view of the matter I do not thing it necessary to consider whether the date could be varied also under Section 148, Civil P. C.

12. My conclusion is that the learned Court below rightly rejected the application for cancelling the orders for extension.

13. I would, therefore, discharge the Rule with costs.

Bachawat, J.

14. The substantial question in this case is whether the date for giving possession of the property named in the order unden Section 43 of the Presidency Small Cause Courts Act, 18S2, can be varied by a subsequent order.

15. In my opinion, it can be so varied.

16. The summary proceeding for recovery of possession under Chap. VII of the Presidency Small Cause Courts Act, 1882, is clearly not a suit. It is a proceeding sui generis. It is commenced by an application and terminates with actual recovery of possession. In course of the proceedings (a) the applicant obtains order under Section 41 addressed to the bailiff directing him to give possession of the property to the applicant on a date to be named in the order, (b) a writ of possession in accordance with the order is issued to the bailiff under Rules 109 and 110, (c) the writ is executed fay the bailiff under Section 44 by giving possession to the applicant. The entire proceedings from the commencement of the application until recovery of possession is one proceeding. The order for possession is a step in the proceeding and does not terminate it. This is clearly indicated by Section 47 under which the proceeding may be stayed even though the order for possession under Section 43 has been made. The Proceedings are, therefore, pending until the recovery of possession. This was clearly held by this Court in the case of : AIR1954Cal14 find also clearly recognised by tills court In the case Of : AIR1953Cal261 .

17. It is, of course, clear that there is no appeal and no new trial in respect of an order for possession made under Section 43 and by Section 37 the order is final and conclusive. This was emphasised by Das J. in the case of : [1953]4SCR533 . It is clear that the order is final and conclusive in the sense that there is no appeal from and no new trial in respect of the order. It is at the same time clear that by virtue of Section 47 the order is not conclusive on the question of title. It is also clear that the order is not final in the sense of terminating the proceedings.

18. It was held by Sen J. in the case of 46 Cal WN 11 (A), following the decision in -- 'Jam-shedji Hormasji v, Gordhandas okuldas' 1921 Bom 201 (AIR V 8) (G), that court of Small Causes could not, on the of the occupant, vary the order for dession under Section 41 and could not extend date on which possession is to be given under that order.

19. It was also field by Sen J. in that case that Section 148, Civil P. C. as then existing did not authorise the extension of the date of possession fixed by the order under Section 43.

20. It may be observed that apart from Section 148 it may be possible to construe a statutory provision so as to admit of extension of time fixed by the Court under such provision. Under the Code of Civil Procedure, 1882, in which there was no statutory provision corresponding to Section 148 of the present Code it was held by their Lordships of the Judicial Committee that the Court could extend the time fixed for giving security for costs under Section 549, Civil P. C., 1882, vide the case of - 'Budri Narain v. Mt. Sheo Koer' 17 Ind App. 1 (3) (H).

21. The language of Section 43 of the Presidency Small Cause Courts Act does not appear to fetter the power of the Court to make fresh orders with regard to the date on which possession is to be given by the bailiff and to vary such date before or after its expiry. It would be a reasonable, construction of the Act to hold that the Court has such power during the pendency of the proceeding under Chap. VII of the Presidency Small Cause Courts Act. Section 47 permits stay of proceedings even after the order for possession is made. In fact, the Court has no option but to stay the proceedings if certain conditions mentioned in that section are fulfilled. If the stay ia granted very often the date named in the order for giving possession will expire. It is not a reasonable construction of the Act to hold that the Court will have no power to make the order effective by fixing a fresh date of possession. This aspect of the matter was not considered by Sen J. in 46 Cal WN 11 (A). In : AIR1953Cal261 , the point arose indirectly while the court was considering the scheme of the proceedings under Chapter VII of the Presidency Small Cause Courts Act in connection with sub-sections (1) and (5) of section 18 of the West Bengal Premises Rent Control Act, 1948 and in the background of the several Special Bench decisions of this Court which were then binding upon the Division Bench and which have since been overruled by the Supreme Court,

22. In the case of 47 Cal WN 656 (B), Dag J. approved of the decision of Sen J. in 46 Cal WN 11 (A), supra', and at the same time held that on the application of the party in whose favour the order for possession had been made, the court had power to extend the date of possession. The reason given by him that such extension is extension of the time for execution of the writ of possession and was in no sense extension of the time of the original order of possession does not as at present advised appeal to me,

23. Since the decisions in 46 Cal WN 11 (A) and 47 Cal WN 656 (B), Section 148, Civil P. C. has been amended by a Notification issued under the authority of this Court under Section 8 of the Code on 3-1-1949.

24. Section 148, Civil Procedure Code as amended by that notification reads as follows :

'Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, or by the Presidency Small Cause Courts Act, 1882 the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.'

25. The giving of possession by the bailiff-is the doing of an act allowed by the Presidency Small Cause Courts Act, 1882. When the Court names a date for the giving of possession by the bailiff the court fixes a time & therefore a period for the doing of an act allowed by that Act. I cannot think of a time which has no period, I also think that in the context of Chap. VII of the Presidency Small Cause Courts Act fixing a new date is extension and therefore enlargement of the period. The time is stretched or extended from one point to another. In my opinion, under section 148 as amended by the Notification mentioned above, the Court of Small Causes has power to vary the date named in the order of possession under Section 43.

26. In the case of 55 Cal WN 305 (C), decided on January, 11, 1951 Guha J. followed the decision of Sen J. in 46 Cal WN 11 (A) and held that the Court of Small Causes has no power to extend the time appointed by an order under Section 43. The attention of His Lordship does not, however, appear to have been drawn to Section 148, Civil P. CV as amended.

27. In my opinion, therefore, the several orders varying the date for the giving of possession were not void and the Court of Small Causes had full jurisdiction to pass those orders.

28. I think that the power of varying the date fixed for the giving of possession under Section 49 of the Provincial Small Cause Courts Act, should be exercised sparingly and with great caution-There is no question, however, in this case that the orders were not properly made.

29. For the reasons given by my Lord I am also of the opinion that there is no substance in the point that the so-called 'decree' did not conform with the judgment.

30. I agree with the order proposed by myLord.


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