1. This Rule raises a point of first impression, and a somewhat challenging one, under the Calcutta Thika Tenancy (Amendment) Ordinance 1952.
2. The Rule was obtained by the defendant in a suit for ejectment. That suit was decreed on 31-8-1948, and the decree of the trial Court was affirmed on appeal on 10-9-1949. On 28-2-1949 the Calcutta Thika Tenancy Act came into force. Thereafter, the petitioner made an application under Section 28 of the new Act for reopening the decree and for consequential reliefs, but his application was dismissed on 28-5-1951, on the finding that he was not a thika tenant at all. An appeal from that order was dismissed on 24-3-1952, on the ground that no appeal lay. Thereafter, the defendant moved this Court against both the order of 28-5-1951, passed by the Munsiff and order of 24-3-1952, passed by the appellate court and obtained the present Rule. While the Rule was pending, the Thika Tenancy (Amendment) Ordinance was published and came into force on 21-10-1952.
3. The only point urged in the Rule is that by virtue of the provisions contained in Section 5(1) of the Ordinance, the Act, as amended by the Ordinance, should now be applied to the case and this Court should either itself give relief to the petitioner on the basis of the new definition of 'thika' tenant or remit the case to the trial court for appropriate action. There can be no question that if Section 5(1) applies to the facts of this case, the prayer made by the petitioner must be conceded.
4. It seems to me, however, that the present case does not come under Sub-section (1) of Section 5, but comes under Sub-section (2) of the section. In order to explain the contention of the petitioner and what I conceive to be the answer thereto, it is necessary to set out the relevant parts of Section 5 in extenso.
5. The section is expressed in the following terms:
'5. Provisions as to certain cases -- (1) Save as provided in Sub-section (2), the provisions of the said Act as amended by this Ordinance, shall apply to all cases pending before a court or Controller on the date of the commencement of this Ordinance.
(2) If, at any time between the commencement of the said Act and of this Ordinance, a decree or order has been passed for the recovery of possession of any land and for other relief, if any, and delivery of possession has not been given, then on application made in this behalf by the person against whom the decree or order was passed, within three months of the commencement of this Ordinance, the Court which or the Controller who passed the decree or the order shall decide (after hearing the parties and after taking fresh evidence if necessary) whether the person is a thika tenant within the meaning of the said Act as amended by this Ordinance.'
6. It is not necessary to quote the rest of Sub-section (2) which provides what the Court or the Rent Controller should do, according as it is held that the applicant is or is not a 'thika' tenant.
7. Mr. Guha, appearing on behalf of the petitioner, contended that the case came clearly within the words of the first sub-section of Section 5. He pointed out that under Explanation (ii) appended to the section, the expression 'court' included a court exercising appellate or revisional jurisdiction. The requirements of Section 5 are that there should be a case before a court and that it should be pending on the date of the commencement of the Ordinance. The Ordinance came into force on 21-10-1952, but before that date, the present Rule had been issued on 19th May. It was accordingly contended that there was a case pending, that it was pending before a court as defined in the Ordinance and that it was also pending on the date on which the Ordinance had commenced to operate and that all the three conditions required being present, the case fell clearly within the ambit of the sub-section.
8. It requires a somewhat close examination of the provisions of the two sub-sections of Section 5 to understand what situations the two sub-sections respectively provide for. The relevant portion of the two sub-sections has already been quoted. The opening words of Sub-section (1), it will be recalled, are 'save as provided in Sub-section (2)'. It is thus clear that Sub-section (1) is laying down a general rule which would apply to all cases pending at the commencement of the Ordinance and then it is providing for an exception which is specifically set out in Sub-section (2); in other words, from the field covered by the general words of Sub-section (1), the sub-section itself carves out a portion and assigns it to Sub-section (2). The effect of the opening words, in my view, is that even if a case satisfies the three requirements of the first sub-section, that sub-section will still not apply if the case belongs to the class specified in Sub-section (2).
9. It is therefore necessary to enquire next what are the cases contemplated by Sub-section (2). The cases are those where a decree or order for recovery of possession was passed between the two, limits of time mentioned in the sub-section, namely, the commencement of the parent Act and the commencement of the Ordinance, and where delivery of possession has not yet been given. If therefore there be a case which was pending before a court on the date of the commencement of the Ordinance but it was a case where a decree for recovery of possession had been passed between the two limits of time mentioned in Sub-section (2) but possession had not been delivered, then it would be Sub-section (2) which would apply and Sub-section (1) would be excluded. It is clear that but for the opening words of Sub-section (1), such a case would come within the ambit of that sub-section and the occasion for the use of the opening words was to except this type of cases from the general scope of the first sub-section, but for which there would be an overlapping between the two, As I have already indicated, the first sub-section contains a general provision contemplating all cases where a proceeding was pending before a Court, as defined in the explanation, or a Controller on the date of the commencement of the Ordinance, but, inspite of the requirements of that sub-section being satisfied, it will still not apply if the case be one covered by Sub-section (2). In such a case the benefit of the Ordinance can be obtained only by an application before the Court which, or the Controller, who passed the decree.
10. Proceeding now to the facts of the present case, it is true that the trial Court's decree was passed before the commencement of the Thika Tenancy Act, but the decree to be regarded is the final decree which, in the present case, was the decree of the appellate Court. That decree was passed on 10-9-1949 which was between the two limits of time mentioned in Sub-section (2) of Section 5 of the Ordinance. It is admitted that delivery of possession has not been given. That being so, the case falls clearly under Sub-section (2) and since it falls under that sub-section, it does not fall under Sub-section (1) because of the opening words of the latter sub-section.
11. It 13 therefore not possible for us to apply the amended Act in this proceeding, but the petitioner will be entitled to take such steps as he may be advised to take under Sub-section (2) of Section 5, if there be any time left for it.
12. For the reasons given above, this Rule must be discharged.
13. There will be no order for costs.
14. Let the records be sent down with the least possible delay.
15. I agree with the conclusions reached by my Lord. I would add that the words 'save as provided etc.' in Section 5, Sub-section (1) of the amendment appear to me to be very inappropriate. The wording as it stands indicates that both Sub-sections (1) and (2) of Section 5 deal with cases pending before the Court or Controller and that Sub-section (2) is an exception to the general rule laid down in Sub-section (1). Sub-section (2) however speaks about a decree or order having been passed within two specified points of time. But supposing the decree or order has been passed but not put into execution can it be strictly called a case 'pending before a Court or Controller'? Then again, in Sub-section (1) it is said that 'save as provided in Sub-section (2)' the provisions of the Act as amended by the Ordinance shall apply. This is as if no provisions of the Act applied in the case of Sub-section (2). A glance at Sub-section (2) will show that although the initial procedure has been provided there, subsequently when the decree is reopened, the ordinary law is applied, that is to say, the Act as amended by the Ordinance. Therefore, the wordings as they have been put into the section are misleading. But at the same time they cannot entirely be ignored and I think the only way of reconciling the two sub-sections and giving some effect to the words 'save as provided etc.' is to come to the conclusion that my Lord has reached, namely that the provisions of Sub-section (1) will not be applicable to the particular cases adumbrated in Sub-section (2), that is to say, where a decree or order has been passed within two specified points of time and recovery of possession has not yet been obtained. It is only in those special circumstances that it will not be open to the parties to proceed under Sub-section (1), but a party must in such a case take recourse to the special procedure laid down therein which obviously is a more summary one.
16. I agree with the order made.