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P.K. Ghosh Vs. Mrs. K. Dutt - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberSuit No. 1490 of 1952
Judge
Reported inAIR1953Cal589
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Section 16; ;Constitution of India - Article 228
AppellantP.K. Ghosh
RespondentMrs. K. Dutt
Appellant AdvocateR.C. Deb, Adv.
Respondent AdvocateAmiya Bose, Adv.
DispositionApplication dismissed
Excerpt:
- .....secondly, there is the consideration of question of reasonable requirements under the west .bengal premises rent control act. i should state incidentally that the grounds of eviction pleaded in the small causes court suit appear in paragraph 5 of that plaint which says that the plaintiff reasonably requires the portion in occupation of the defendant, for herself and one mr. myer whom the respondent is about to marry or has married and for their respective families. it is, therefore, said by the applicant that construction inter alia of section 16 and section 12 (h), west bengal premises rent control act, 1950, as amended, is one of the difficult questions of law to be tried in that suit. the other grounds are about the convenience of the case being disposed of by the high court instead.....
Judgment:

P.B. Mukharji, J.

1. This is an application for transfer under Clause 13 of the High Court Letters Patent, of Suit No. 1490 of 1952, now pending before the Chief Judge, Court of Small Causes, Calcutta. A copy of the plaint in that suit is annexed to the petition. In that suit, the respondent Mrs, K. Dutt as plaintiff claims a decree for eviction of the applicant as defendant in that suit. The pleading in that plaint is that the applicant was in occupation of the entire first floor flat of premises No. 4, Moira Street. Calcutta, as a monthly tenant under the respondent on an arrangement for payment of a monthly rent of Rs. 500/- payable on the expiry of each English calendar month. The suit in the Small Causes Court was instituted sometime in June, 1952.

2. The grounds of merit on which such transfer is asked are set out in para. 16 of the petition. Briefly stated, these grounds are that in the suit in the Small Causes Court difficult questions of law and/or facts will have to be decided, specially questions relating to the factum and validity of an alleged marriage of the respondent with one Rangulal Dutt, since deceased and questions of construction of the Special Marriage Act and the Succession Act. It is stated that the applicant was originally a tenant under the said Rangulal Dutt at a rent of Rs. 500/- but later on, he became a tenant of a garage in addition at an extra monthly rent of Rs. 30/-. The respondent Mrs. K. Dutt filed the Small Cause Court suit against the applicant in her capacity as a widow of the said Rangulal Dutt, deceased. The applicant's case is that he has challenged the validity of respondent's marriage with the said Rangulal Dutt and her status as his widow to claim the eviction of the applicant. In fact, the applicant says in para 13 of his affidavit that Rangulal Dutt was married to one Bijoli Sinha, daughter of the late Lord Sinha under the Special Marriage Act, 1872, and had two daughters of such marriage by the names of Brinda and Anjali who it is alleged, are married to Englishmen and are residents abroad. It is said by the applicant that the widow Bijoli Dutt (nee Sinha) and her two daughters as aforesaid are alive and the succession to the estate of Rangulal Dutt, deceased, has devolved upon his widow Bijoli Dutt and her said two daughters and not upon the applicant. The respondent's answer on the point is that the said Rangulal Dutt died leaving a will dated 5-12-1948 and under that will, the testator after payment of certain legacies bequeathed the whole of the residuary estate including the said premises No. 4, Moira Street, Calcutta, to the respondent. The respondent says that on 3-6-1949, she obtained letters of administration in respect of the estate of the said deceased with a copy of the will annexed from this Court and in her application for such letters of administration, the widow Mrs. Bijoli Dutt and her two daughters Brinda and Anjali gave their consent. On that ground, Mrs. K. Dutt, the present respondent, now claims to be the only owner of the said premises as the sole residuary legatee under such will. It is alleged that the administration of the estate has been completed and all debts and legacies have been duly paid.

3. The other grounds of merit relate first, as to whether the tenancy was in respect of the said premises only or whether it included the garage. The point of this allegation is that if it is one tenancy including the garage the total rent will be over Rs. 500/- per month so that in that event this Court will be competent to try the case, secondly, there is the consideration of question of reasonable requirements under the West .Bengal Premises Rent Control Act. I should state incidentally that the grounds of eviction pleaded in the Small Causes Court suit appear in paragraph 5 of that plaint which says that the plaintiff reasonably requires the portion in occupation of the defendant, for herself and one Mr. Myer whom the respondent is about to marry or has married and for their respective families. It is, therefore, said by the applicant that construction inter alia of Section 16 and Section 12 (h), West Bengal Premises Rent Control Act, 1950, as amended, is one of the difficult questions of law to be tried in that suit. The other grounds are about the convenience of the case being disposed of by the High Court instead of by the Small Causes Court.

4. Both on the grounds of fact and of law, great difficulties are on the way of the applicant.

5. The legal point is whether such a suit can any longer be transferred under Clause 13 of the Letters Patent of this High Court. Section 16 of the West Bengal Premises Rent Control Act, 1950, provides:

'Notwithstanding anything contained in any other law a suit by a landlord against a tenant in which recovery of possession of any premises to which this Act applies is claimed shall lie to the courts, as set out in Schedule B, and no other court shall be competent to entertain or try such suit'.

Schedule B of that Act provides inter alia: '(1) Where the premises are situate on land, wholly within the Ordinary Original Civil Jurisdiction of the Calcutta High Court: (i) When the rent payable for one month forthe premises exceeds Rs. 500/-The Calcutta High Court.

(ii) In all other cases --- The Chief Judge of the Calcutta Court of Small Causes, who shall entertain and try the suit as 'a Court of District Judge under the Bengal Agra and Assam Civil Courts Act, 1887;' The other parts of Schedule B of the Rent Control Act are not relevant for the present purpose.

6. Reading these provisions of Section 16 of the Rent Control Act and the Schedule B thereof, it appears to me that the Calcutta High Court is not competent to entertain or try a suit for the recovery, of possession of any premises the rent of which does not exceed Rs. 500/- per month. This deprivation of the jurisdiction of the Calcutta. High Court has a legal history whose details need not detain us. It is enough to say that in its wisdom the legislature has now stated that such suits are to be tried not by the Calcutta High Court, but by the Chief Judge of the Small Causes Court acting as a Court of the District Judge.

7. Clause 13 of the Letters Patent gave to this High Court.

'Power to remove, and to try and determine, as a Court of extraordinary original Jurisdiction, any suit being or falling within the jurisdiction of any Court, whether within or without the Bengal Division of the Presidency of Port William, subject to its superintendence, when the said High Court shall think proper to do so, either on the agreement of the parties to that effect, or for purposes of justice, the reasons for so doing being recorded on the proceedings of the said High Court'.

The question, therefore, now is whether this power of the Calcutta High Court to remove, and to try and determine such suits in this High Court's extraordinary Original Jurisdiction has been curtailed by Section 16, West Bengal Premises Rent Control Act, 1950. That powers under the Letters Patent can be curtailed by legislation cannot be doubted. Clause 44 of the Letters Patent is clear on the point. The Rent Control Act, 1950, has received the assent of the President of the Indian Union. The language in Section 16 of the Rent Control Act which uses the famous words 'Notwithstanding anything contained in any other law' covers the law as contained in Clause 13 of the Letters Patent of the High Court.

8. The argument was advanced on behalf of the applicant that the High Court under Clause 13 of the Letters Patent tries suits which it has ordinarily no jurisdiction to try and that this Section 16 of the Rent Control Act, 1950, only refers to and should be understood only in relation to the original Civiljurisdiction of the High Court, and therefore it is contended that Section 16 of the Act does not affect the extraordinary original civil jurisdiction given under Clause 13 of the Letters Patent. The section itself does not say whether it is the original jurisdiction or the extraordinary original jurisdiction which was intended to be affected. The section is unqualified on this point. When, therefore, the section is silent on the point it can only be read in its amplitude and the proper conclusion to arrive at will be that all jurisdictions of this Court in entertaining or trying a suit are affected in all cases of a suit by a landlord against a tenant in which recovery of possession of any} premises to which this Act applies 'is claimed' except suits involving a substantial question of law as to the interpretation of the Constitution of India when under Article 228 of the .Constitution this High Court has the jurisdiction to transfer such suits from a subordinate Court.

9. It is then argued that the words: 'Shall lie to the Courts' indicate that it is the original jurisdiction where suits are instituted, which is in the contemplation of the section. But the latter part of Section 16 of the Act uses much wider language when it says: 'And no other Court shall be competent to entertain or try such suit'. The bar operates not merely on the entertainment of such suit but also it prohibits trying of such suits by the High Court. 'Such suit' in that part of the section means: 'A suit by a landlord against a tenant in which recovery of possession of any premises to which this Act applies is claimed', and not merely suits which could be instituted originally in this High Court. The words: 'Ordinary Original Civil Jurisdiction of the Calcutta High Court' appear in Sch. B of the Rent Control Act of 1950. But the use of such words is only to denote or fix the situs of the land. It is quite clear that premises No. 4, Moira Street, Calcutta, is within such situs and within the ordinary original Civil jurisdiction of the Calcutta High Court, in that view of the matter, I am unable to read and construe Section 16, West Bengal Premises Rent Control Act, 1950, as affecting only the original jurisdiction of the High Court in the sense that such suits cannot be instituted in this High Court. By reason of the clear words: 'and no other Courts shall be competent to entertain or try such suit', the intention of the legislature is clear that this High Court shall not entertain or try such suits. Now suits are transferred under Clause 13 of the Letters Patent only with a view to enable this High Court to try such suits. There will be no point, therefore, in transferring a suit under Clause 13 of the Letters Patent when the Act has deprived this High Court of any power to try such a suit. To give the High Court such power by construing Section 16 of the Rent Act as affecting only the ordinary original civil jurisdiction & not the extraordinary original jurisdiction will be clearly to defeat the language of the section by a process of back-door construction, which I do not propose to adopt. In fact, if the construction was to be limited only to suits that could be instituted in this Court, then it would have been enough for this section to have stopped after the words: 'shall lie to the Courts as set out in Schedule B'. The further words: 'and no other Court shall be competent to entertain or try such suit' would then, in that event, be completely redundant.

10. For these reasons, I hold that on this point of law, Section 16, West Bengal Premises Rent Control Act, 1950, has destroyed the jurisdiction of this Court under Clause 13 of the Letters Patent to entertain or try suits of the nature and description mentioned in that Section of the Act.

11. On the question of merits, I am not persuaded enough to say that 'for the purpose of justice', even if Clause 13 of the Letters Patent of the High Court were applicable, this is a proper and fit case which should be transferred to this Court.

12. Mr. Deb, appearing for the applicant has urged the grounds of merits which appear in para. 16 of his client's petition and which I have already stated. The main contention of Mr. Deb is that the Small Causes Court is not a proper Court to try these difficult questions of law and of facts.

13. Now, although under Sch. B of Section 16, Rent Control Act, 1950, the Court of jurisdiction is described to be the Court of the Chief Judge of the Calcutta Court of Small Causes, he in entertaining and exercising this jurisdiction, does not act as Small Causes Court at all. Schedule B makes it clear that the Chief Judge in this case, 'shall entertain and try the suit as a Court of the District Judge'. As a Court of the District Judge, it is a Court of record and where all the sections of the code of Civil Procedure will apply. It will, therefore, be not entertained and tried as a Small Cause in the Small Causes Court. It is not the jurisdiction of the Small Causes Court that the Chief Judge exercises under Sch. B of Section 16, Rent Control Act, but he exercises the jurisdiction of the Court of a District Judge.

14. I do not think that the Court of a District Judge can be said to be a Court where the fact of tenancy or the question of construction of the Special Marriage Act and the Succession Act can not be properly and duly determined. In fact a District Judge's Court normally does exercise juris diction both under the Special Marriage Act as well as under the Succession Act. On the question of the construction of Section 12(h), Rent Control Act, 1950, I am satisfied that the District Judge's Court is quite a competent and a proper Court to decide such question and I see no room for fear of failure or miscarriage of justice in such Court.

15 I am not impressed by the grounds made by, the applicant that the parties and their witnesses live in Calcutta within the original civil jurisdiction of this Court and therefore, it will be convenient for them to attend this Court. It is a very laboured attempt to make a case of convenience. The distances between this Court and the Small Causes Court and their respective original jurisdictions are enough to show that such a ground has really no substance. I am satisfied on the facts also and having regard to the nature of the suit that it will not be for the purpose of Justice to transfer such a suit to this Court, even if Clause 13 of the Letters Patent could be construed to be legally applicable to these suits.

16. For these reasons, I dismiss this application. The costs of this application will abide bythe result of the Small Causes Court suit. If theapplicant wins there, he gets the costs of thisapplication. If he fails, he pays the costs of thisapplication. The costs of this application will betaxed according to the scale permissible on theoriginal side of the High Court.


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