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Sm. Sarojini Debi Vs. Rabindra Mohan Sen and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1923(S) and Civil Revn. No. 1870 of 1949
Judge
Reported inAIR1950Cal381
ActsCalcutta Thika Tenancy Act, 1949 - Sections 3, 3(1), 5, 6, 27(6) and 28; ;Tenancy Law
AppellantSm. Sarojini Debi
RespondentRabindra Mohan Sen and ors.
Appellant AdvocateSitaram Benerji and ; Arun Kumar Datta, Advs.
Respondent AdvocateSen Gupta and ; Bhabatosh Ghakravarty, Advs.
Cases ReferredPanchanan Shaw v. Satya Bandhu Mukherjee
Excerpt:
- .....the next problem is to settle then whether the amendment is to be of any substantial use to a tenant in arrears in giving him an opportunity to pay the arrears. as dr. sen gupta urges the decree here as it stands is in conformity with the act. i have pointed out why i think, in any view, of the matter, it must be amended to some extent. the really material point is in fact what is to be the date of the emended decree. if it is dated as from the date of the order, varying the decree, the tenant will have his opportunity to pay up the arrears. in the present case, it is stated that the tenant had already paid the arrears on 1st march 1949, after the conclusion of the appeal in this court arising out of proceedings under section 47, civil p. c. if the date of the decree, however, is to.....
Judgment:
ORDER

Roxburgh, J.

1. This is a Rule for action to be taken under Section 28, Calcutta Thika Tenancy Act, 1949, hereafter referred to as the Act, and an application in revision against an order of a Munsif refusing to take such action. The decree to be dealt with under that section was passed in Title Suit 123 of 1989, a suit for ejectment and recovery of arrears of rent which was filed in the 3rd Court of the Munsif at Alipore. The suit was decreed on 28th June 1940 for rent only. On appeal by the landlord, the Subordinate Judge of Alipore added a decree for ejectment. There was a second appeal to this Court and on 22nd December 1948, Lodge J. dismissed the appeal. There have been subsequent proceedings under Section 47, Civil P. C. but I do not think they have any bearing on the present matter.

2. The tenant applied to the original Court which passed the decree under Section 28 of the Act. The Munsif held that the case was covered by the provisions of Section 3 (1) of the Act as the landlord had sued for arrears of rent as well as ejectment but refused to take action on the application. The landlord had mentioned in his plaint that he required the land for his own use. This was quite unnecessary in the state of the law at the time the suit was filed, but might if established bring the case under ground 3 (iv) of the Act. The matter was admittedly not in issue in the suit as tried, but the learned Munsif seems to have held that this ground was established, though his judgment is not quite clear on the point. The learned Munsif also considered the question whether the case came under ground 3 (vi) of the Act, namely, that the tenant held under a registered lease which expired. The learned Munsif found some references to a lease in the judgments in the case, but was unable to conclude whether it was registered or not, and held that to bring their case under this ground the plaintiff's must substantiate their case by furnishing the lease.

3. It is not clear what the learned Munsif would have done if he had not found that the application was in any case liable to dismissal as the plaintiff's could show that there existed arrears of rent at the time of the suit, go as to bring the case under ground 3 (1) of the Act.

4. The tenant made an application in revision and obtained a rule solely on the ground that the Munsif acted without jurisdiction. Later he made an application direct to this Court for action under Section 28, evidently on the basis of the decision in Gostha Behari v. Panchu Gopal, (Civil Rev. No. 861 of 1941) in which it was decided that applications under Section 18, West Bengal Premises Bent Control Act must be made to the appellate Court, as being 'the Court which made the decree' within the meaning of the words used in that section. It was apparently assumed that the decision necessarily also covers the same phrase used in Section 28 of the Act. Whether it does so or not seems to depend on the whole interpretation of Section 28 of the Act, which question I proceed to discuss.

5. The decree as it stands is (1) for ejectment, (2) for arrears of rent, (3) for interest and costs and (4) for damages at the rate of Rs. 7 per year until delivery of possession.

6. Section 28, Calcutta Thika Tenancy Act, runs as follows :

28. Power of Court to rescind or vary decrees and orders in certain cases :

'Where any decree or order for the recovery of possession of any holding from a thika tenant has been made before the date of commencement of this Act but the possession of such holding has not been recovered from the thika tenant by the execution of such decree or order, the Court by which the decree or order was made may, if it is of opinion that the decree or order is not in conformity with any provision of this Act other than Sub-section (1) of Section 5 or Section 27, rescind or vary the decree or order in such manner as the Court may think fit for the purpose of giving effect to such provision and the decree or order so varied by any Court shall be transferred by such Court to the Controller lot execution under this Act as if it were an order made under and in accordance with the provisions of this Act.' We have to try and give an intelligible, work-able interpretation of these provisions without straining the canons of interpretation of statutes. The material words are :'If it is of opinion that the decree or order is not in conformity with any provision of this Act other than Sub-section (1) of Section 5 or Section 27' What precisely does this mean

7. If the Court thinks the decree or order is not in conformity with the provisions of the Act it is to rescind or vary it for the purpose of giving effect to such provision, and the decree or order is to be transferred to the Controller for execution 'as if it were an order made under and in accordance with the provisions' of the Act. The Act itself makes no provision for any decree, but only for an order for ejectment by the Controller. The intention seems to be that the decree or order varied is to be in all respect the same as if it were an order passed by the Controller.

8. At first sight, one might think that the words had some reference to some provision of the Act which required a decree to be in some particular form. The only section which apparently would have any bearing in that view would be Section 6, which requires that when the Controller makes an order for ejectment his order 'shall specify the amount of the arrear and of the interest, if any, due thereon' and then adds 'and no such order shall be executed if that amount the costs of the proceedings arising out of such application and such damages as the Controller may allow are deposited with the Controller within thirty days from the date of the order.'

9. But at once one asks what is the significance, if any of the reference to Sub-section (1) of Section 5 and to Section 27 of the Act If we examine the Act these will be seen to be, so to speak, the alpha and omega of proceedings for ejectment as provided for in the Act. Section 5 shows that the only way for a landlord to obtain ejectment of a thika tenant is to move the Controller, while Section 27 provides for appeal, review and execution. The reference to these sections is somewhat obscure but it does appear sufficiently clear I think that the intention is that in examining whether the decree is in conformity with the Act, we have not only to look at the mere actual form of the decree itself but also to the whole proceedings except the naturally impossible requirement that they should have been held before the Controller.

10. This view is supported by reference to the following Section 29 which deals with ejectment suits pending at the time when the Act came into force. There, a different phraseology has been employed. The section runs as follows:

29. Application of Act to pending suit a and proceedings :

'The provisions of this Act shall apply to all suits and proceedings, including proceedings in execution, for ejectment of a thika tenant which are pending at the date of commencement of this Act, and if any such suit or proceeding relates to any matter in respect of which the Controller is competent after the date of such commencement to pass order under this Act, such suit or proceeding shall be transferred to the Controller who shall on such transfer deal with it in accordance with the provisions of this Act as if this Act bad been in operation on the date of institution of the suit or proceeding :

Provided that in applying the provision of this Act to any suit or proceeding instituted for the ejectment of a thika tenant so transferred, the provisions regarding notice in Section 4 of this Act shall not apply.'

In pending cases for ejectment, the Controller is to take over the proceedings and deal with them as if the Act had been in operation at the date of the institution of the suit or proceeding. In other words, he will deal with the whole proceedings in conformity with the Act and necessarily at the end pass an order in conformity with the Act. Now, it would be strange if the Act made any substantial distinction between a case where a decree for ejectment had been passed by the Court, shall we say, on 27th February 1949, the day before the Act came into force and another case which happened to last one day longer and, therefore, was pending on 28th February 1949, when the Act came into operation.

11. I think this view is further re-enforced if we look at the Thika Tenancy Ordinance 1948, which came into force a few months previously on 26th October 1948. The substantial provision there was that although a decree for ejectment might be passed it could not be executed, provided, in a case where the tenant was in arrears with his rent, he deposited into Court the amount of the decree and costs within 30 days from the date of the decree or order. One may surely gather from this the intention that from the date of the Ordinance decrees for ejectment against thika tenants were, subject to their paying arrears if any (in time) to be kept in suspense till further provision was made. The intention is in fact indicated in the preamble to the ordinance. The further provision is made in the Act in Section 28 and we may at any rate assume that the intention was by Section 28 to give similar treatment to such tenants against whom such decrees had been passed, as to tenants against whom suits are proceedings for ejectment were pending when the Act came into force. The interpretation I suggest carries out that intention.

12. It is to be noted also that in cases where there are no arrears, Section 6 would have no application. Execution of the decree would have been stayed under Section 3 of the Ordinance, and if all that was required to bring the decree into conformity with the Act (under Section 28) were to amend the decree in conformity with Section 6 then nothing would be required to be done in such cases. The suspension of execution by the Ordinance would have given no benefit to the tenant. It seems to be sufficiently clear that a tenant who was not in arrears and who thus under the Act would not be liable to ejectment, unless the landlord could show the case came under one or other of Sub-clauses (ii) to (vi) of Section 3, and who was protected temporarily by the provisions of Section 3 of the Ordinance, was also intended to get the benefit of the Act by operation of the provisions of Section 28, If this were not so, tenants in cases where there were arrears, and where variation was necessary in the decree to make it conform with Section 6, would be in a better position than tenants who were never in arrears. I think then it is clear that a decree is to be varied or rescinded under Section 28 if the tenant can show it is equivalent to an order that the Controller would not be competent to pass under the Act because of the non-existence of one of the 'grounds' for ejectment given in Section 3 of the Act. (In parenthesis I may point out that under Section 28 the only decrees to be 'transferred' by the Court are those which are decrees or orders 'varied' by the Court. If no variation is made, as unnecessary, there is no provision for transfer, though Section 29 assumes that pending proceedings for execution are to be dealt with by the Controller. The flaw is perhaps not serious, but Section 28 should have also provided for transfer of 'unvaried' decree also).

13. From the above then it would appear in dealing with the decree in question, we are, in substance, (i) to see if it amounts to the sort of order that would have been passed by the Controller in a case under the Act, in other words, whether the conditions of Section 3 are fulfilled which lays down the grounds on which a thika tenant can be ejected and (2) whether in form the order is of the type that would be passed under Section 6 of the Act.

14. As I have pointed out in Panchanan Shaw v. Satya Bandhu Mukherjee, Civil Revn. No. 1927 of 1949 : : AIR1950Cal319 trouble may arise in some cases because Section 28 has not excepted Section 4 (requiring 30 days' notice) as one of the sections with which conformity is necessary, though Section 4 is excepted in Section 29. No such difficulty arises in the facts of the present case. It would be argued that this shows a deliberate intention to distinguish between completed cases dealt with by Section 28 and pending cases dealt with by Section 29, bat I think it is a case of oversight. There is the equally anomalous omission of an exception of sub-section 1 of Section 5 (requiring initial approach, to the Controller) from Section 29 though it is specifically excepted in Section 28.

15. Here it seems to me to be important to note carefully that the Controller is only given power to pass an order for ejectment. He cannot pass any order which can be executed for recovery of arrears of rent. It is true that under Section 6 under the words previously cited above he has to state the amount of the arrears, and costs (I think also the damages; vide below) and if the tenant pays them he will not be ejected, and in that sense the Controller will collect the rent for the landlord, but I can find nothing in the Act which will allow the Controller to pass an order for actual payment of arrears in the event that the tenant does not pay up within the time specified in Section 6 ; on the contrary, there are several indications that the Controller has no such power. Section 5 itself clearly only bars a landlord going to Court for an ejectment order. It does not bar him suing for arrears of rent, and the order to be made under Section 5 is only one:

'directing the thika tenant to vacate the holding and subject to the provisions of Section 10, to put the landlord in possession, thereof.'

Again, if we turn to Section 29 of the Act, we will see that the provisions of the Act are to apply to 'suits or proceedings, including proceedings in execution, for ejectment of a thika tenant, which are pending at the date of the commencement of the Act.'

16. Reference may also be made to Section 23 of the Act which refers to ' the institution of the suit', clearly contemplating a separate suit for recovery of arrears of rent.

17. The importance of this is that in cases such as the present where there is a decree both for ejectment and for payment of arrears of rent, it is clearly necessary to separate the two. It is only the decree for ejectment which is to be converted into an order such as the Controller could pass and such as the Controller can execute, under the powers given to him under Section 27 (6) of the Act.

18. In the present case, so far as Section 8 (1) of the Act is concerned, there is no difficulty as the landlord not only sued for ejectment under the law then in force in 1939, but also sued and obtained a decree for arreas of rent. So the case is one under Clause 3 (1). The only question that gives rise to difficulty in this connection is the matter of the applicability of Section 6 and in short the question whether the amendment of the decree is to give the tenant some opportunity to pay up the arrears. On 22nd December 1943, there was a decree for arrears of rent and it is admitted on behalf of the tenant that the arrears in fact were not cleared up until a payment was made on 1st March 1949.

19. If he is to be given such opportunity the question then arises whether the landlord in turn should be allowed to show that the case comes under Section 3 (iv) or 8 (vi) and if so how.

20. I have stated that the decree as it stands, includes a decree for damages from the date of the suit till delivery of possession. That is not an order in my opinion which the Controller could pass. Under Section 6, the limits of the Controller's powers are to specify the actual arrears, the costs and the damages, if any, and the total is to be an amount which the tenant may pay within 30 days of the date of the order and so save himself from ejectment. Clearly, under those powers, the Controller cannot direct the tenant to go on paying further sums in the event of his not depositing the amount within those 30 days. Therefore, the decree in this case must be altered. The decree as I have said has to be divided into two separate decrees, in so far as there is a decree for arrears of rent and damages; this is not a decree or order which the Controller himself could pass at all. Again, the decree for ejectment, in view of what I have just said must be limited to one containing the actual order of ejectment plus the specification of arrears, costs and damages, limited to damages upto the date of the order.

21. On this matter, I may refer to an argument put forward by Dr. Sen Gupta based on the wording of Section 6. Literally, it would appear that the Controller's order is merely to show arrears, interest and costs and the tenant is then to come within 30 days to pay them and, as he is about to pay, he is to be told that in addition certain amount of damages also would be paid. I do think, clumsy as the wording of the section is, that it is necessary to say that it must be interpreted as literally as this, and it may be fairly interpreted as meaning that the Controller's order itself will state all the items to be paid within 30 days including damages so that the tenant will know exactly what he has to pay and if he does pay the amount he will get the benefit of the section and avoid ejectment.

22. The next problem is to settle then whether the amendment is to be of any substantial use to a tenant in arrears in giving him an opportunity to pay the arrears. As Dr. Sen Gupta urges the decree here as it stands is in conformity with the Act. I have pointed out why I think, in any view, of the matter, it must be amended to some extent. The really material point is in fact what is to be the date of the emended decree. If it is dated as from the date of the order, varying the decree, the tenant will have his opportunity to pay up the arrears. In the present case, it is stated that the tenant had already paid the arrears on 1st March 1949, after the conclusion of the appeal in this Court arising out of proceedings under Section 47, Civil P. C. If the date of the decree, however, is to remain as the date of the Order of Lodge J., viz., 22nd December 1943, then the one month's grace given by Section 6 has long passed.

23. It seems to me this question is closely related to the whole question of how to interpret the intention as to how the provisions of Section 28 are to be carried out. I have pointed out the apparent connection between the provisions of Section 28 and Section 29. The varied decree is to be executed as if it was an order made under and in accordance with the provisions of the Act. Does it not follow that the varied decree to be treated as such order must be dated after the commencement of the Act. Again I have said that Section 28 seems to mean that the variation is not to be one of mere form, but that the whole proceedings have to be gone over to see if the landlord can bring his case under Section 3. The anomaly in the learned Munsif's treatment of this case is obvious. The whole law of ejectment baa been changed by the Act; it is surely unfair to tie either the landlord or the tenant to pleadings and evidence led when the matter in issue was entirely different. Before the Act the 'ground' for ejectment was termination of the tenancy on expiry of the lease, or on notice, and other grounds given in the Transfer of Property Act. If the conformity is to be with the whole new Act, in particular Section 3, and not merely some change in the decree itself both sides must be given opportunity to establish a case of conformity or non-conformity. Surely we must interpret Section 28 as meaning this. Does it not follow then that the only possible Court that can properly do this is the Court which passed the original decree, the trial Court. And does is not also follow that the order passed as to be executed as one under the Act must be dated as passed, so that an intelligible and meaningful order can be passed under Section 6 in cases of arrears. If the latter be not the case then the Court will amend a decree in a case of arrears specifying the amount of arrears and so forth on the lines I have indicated, -but the whole will be meaningless, as the object of the specification, namely the opportunity to pay up the amount specified will be non-existent, as the 'date of the order' will be some date much in excess of thirty days prior to the actual date on which it is made, the date on which the original order was varied. I think, therefore, in cases where under the Act the decree is amended to an order for ejectment under Section 3 (1) of the Act, and the provisions of Section 6 are to be carried out, the date of the order will be the date of the varied order, and thus the tenant will have the opportunity of paying the arrears. Section 6 of the Act requires that they along with the other items mentioned herein be deposited with the Controller.

24. From the above it follows that the decision in Gosta Behari Sadhu Khan's case, civ. Revn. No. 861 of 1941, however applicable to the provisions of Section 18, West Bengal Premises Rent Control Act, cannot apply to Section 28 of the Act. The phrase 'Court which made the decree* has to be interpreted in the particular context in which it appears, and if the view I have taken of the interpretation of Section 28 is correct, the legislature cannot possibly have intended that the investigation as to conformity was to be made by other than the trial Court. I may point out that there is a considerable distinction between the provisions of Section 18, West Bengal Premises Rent Control Act, and Section 28 of the Act, in particular if my interpretation is correct that we are to look to the provisions of Section 29 to assist in the interpretation Section 18 of the for met Act speaks of the decree being varied if the Court 'is of opinion that the decree or order would not have been made if this Act had been in operation at the date of the making of the decree or order. Section 29 of the latter Act requires the Controller in pending cases to deal with them 'as if this Act had been in operation on the date of institution of the suit or proceeding. Again in the case of the Rent Act the varied decree is still a decree of Court to be executed by the Court, whereas under the Act as far as it relates to ejectment it is to be executed as 'an order made under and in accordance with the provisions of this Act,' i. e., as an order of the Controller.

25. The result is that in my opinion the learned Munsiff had jurisdiction to deal with the application under Section 28, but there has been material irregularity in his exercise of his jurisdiction. Rule No. 1870 is accordingly made absolute without costs and the application of the tenant is directed to be re-heard and disposed of in the light of what I have said above. The learned Munsif should give the plaintiff an opportunity of showing that the case is governed by Section 3 (iv) or (vi), and the defendant an opportunity of meeting the plaintiff's contention, evidence may be taken if necessary. If the tenant is held to be liable to ejectment on the ground of arrears only the decree will be amended to consist of (1) an order in the form indicated In Section 6 showing arrears, interest, costs, and damages to the date of the new order; this will be transferred to the Controller for executions And (2) a decree for arrears, interest, costs, damages at) Rs. 7 per year till the date of recovery of possession to be executed by the Court. 26. C. R. 1923-S of 1949 is discharged with, out costs.


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