Bankim Chandra Banerjee vs Sarjoo Tewari

G.N. Das, J.—This Rule was issued at the instance of the plaintiff and is directed against an order of the Presidency Court of Small Causes directing stay of proceedings u/s 41, Presidency Small Cause Courts Act, 1882, u/s 47 of the said Act.

The matter came up for hearing before Chunder J. By an order dated 13-1-1953 it was referred to a Division Bench and has now come up before us.

The facts which gave rise to the present Rule may be shortly stated as follows :

In June 1948 the plaintiff obtained, permission from the Rent Controller for initiation of proceedings u/s 41 of the Presidency Small Cause Courts Act on the ground of ''bona fide'' requirement of the disputed premises. Thereafter the plaintiff-petitioner served a notice on the defendant-opposite party terminating the tenancy. On 2-9-1949 the plaintiff-petitioner initialed proceedings u/s 41 of the said Act. The proceedings were numbered as a suit. The suit was dismissed by a Judge of the, Presidency Court of Small Causes, Calcutta. Against that decision an appeal was taken to the Special Bench. The Special Bench allowed the appeal and remitted the case for further consideration. After remand the suit was again dismissed by the trial Judge. The plaintiff again came up in appeal before the Special Bench. The appeal was dismissed by the Special Bench. Thereafter the plaintiff moved this Court in revision and obtained a Rule. The Rule came up for hearing before a Bench of this Court. This Court was of opinion that the appeal before the Special Bench was maintainable and remanded the case for further consideration by the Special Bench.

The Special Bench on remand allowed the appeal and directed that possession was to be delivered to the plaintiff on 28-2-1952. Thereafter the defendant-opposite party moved this Court in revision and obtained a Rule. The Rule came up for hearing before Chunder J. The Rule was discharged by the learned Judge, but the defendant-opposite party was given time to vacate the premises by 1-6-1952. Thereafter on 21-5-1952 the defendant-opposite party filed an application for leave to appeal to the Supreme Court which was dismissed by the Supreme Court.

Thereafter on 3-6-1952 an application was filed by the defendant-opposite party u/s 47, Presidency Small Cause Courts Act for stay of further proceedings pending the disposal of the proposed suit as provided for by Section 47 of the Act. On 19-6-1952 the defendant-opposite party filed a suit in this Court as contemplated by Section 47. Thereafter on 21-6-1952 an order for stay of the proceedings u/s 41, Presidency Small Cause Courts Act was made by the learned Small Cause Court Judge. Against" this order the plaintiff moved this Court in revision and obtained the present Rule. As T have already observed, this Rule came up for hearing before Chunder J. and on an order made by him the case has come up before a Division Bench for disposal.

Mr. Gupta, who has appeared in support of the Rule has raised two points.

The first point which is uncovered by an authority of this Court is whether the making of an order u/s 43, Presidency Small Cause Courts Act (Act 15 of 1882), hereinafter referred to as the Act bars the making of an application u/s 47 of the Act. Section 47 of the Act reads as follows :

"Whenever on an application being made u/s 41 the occupant binds himself, with two sureties, in a bond for such amount as the Small Cause Court thinks reasonable, having regard to the value of the property and the probable costs of the suit next hereinafter, mentioned, to institute without delay a suit in the High Court against the applicant, for compensation for trespass and to pay all the costs of such suit in case he does not prosecute the same or in case judgment therein is given for the applicant, the Small Cause Court shall stay the proceedings on such application until such suit is disposed of."

The section thus confers on an occupant the right to obtain a stay of the proceedings u/s 41 till the disposal of a suit for compensation for trespass on certain conditions. This right being in arrest of the proceedings u/s 41 can ensure till the proceedings come to an end. As such, the relevant inquiry is when do the proceedings u/s 41 terminate.

It is undisputed that when the occupant delivers up possession either amicably or through the intervention of the bailiffs, the proceedings come to an end. The question is whether the proceedings u/s 41 can be said to have ended earlier viz., when an order is made u/s 43 of the Act and before possession is taken in pursuance of the order.

I have just quoted Section 47 in extenso. The section speaks of a suit for compensation for trespass and provides for a stay of the proceedings u/s 41 till the disposal of such a suit. "Trespass" ordinarily means interference with the possession of the occupant. The word "trespass" as used in Section 47 cannot, however, have that wide meaning, because once possession is taken away from the occupant the question of stay of proceedings u/s 47 becomes meaningless.

The word "trespass" must, therefore, be given a more limited meaning. Mr. Gupta submits that the word "trespass" in Section 47 means only a notional trespass. In other words, the trespass contemplated by Section 47 commences with the making of an application u/s 41 and ends when an order is made u/s 43. Mr. Gupta referred us to para 2 of Section 46 which speaks of trespass as having been committed when an application u/s 41 of the Act is made by an applicant who is not entitled to make an application u/s 41.

It must be remembered, however, that para 2 of Section 46 merely states that the trespass is committed on the mere filing of an application u/s 41 by an applicant not entitled to possession. It does not say when the act of trespass is complete. In my opinion, the word "trespass" occurring in Section 47 should not be given a more restricted interpretation than the section necessarily implies. The word "trespass" in Section 47, must be given its ordinary meaning subject to the reservation that the meaning must be limited by the necessary implications contained in the section, namely that once possession is taken the right to make an application under that section is no longer available to the occupant. I can find nothing in the language of Section 47 to limit the rights conferred by that section to an earlier stage in the proceedings u/s 41 viz., when an order u/s 43 is made.

There are good reasons in support of the view that the right to apply conferred by Section 47 exists till possession is taken. The occupant is not hurt till an order u/s 43 is made. He may very well feel secure till the proceedings u/s 43 terminate against him. I do not understand why the mere making of an order u/s 43 would disentitle the applicant from resorting to the procedure contemplated by Section 41 and from obtaining a stay of further proceedings u/s 41. Chap VII of the Act is headed as proceedings for recovery of possession. Such proceedings are undoubtedly of a summary character as is apparent from the terms of Sections 41 to 43. Section 41 entitles the applicant to apply for an order for delivery up of the property on a specified day. Section 43 provides for an order addressed to the bailiff to give to the applicant possession on the appointed day.

This Court in exercise of its power conferred by Section 6 of the Act and of all other powers enabling in this behalf have framed certain rules governing the procedure for delivery of possession, vide Rules 109 etc. In the case of -- Mono Mohon Das Gupta Vs. Sm. Umarani Sanyal, (A), Roxburgh, J. was of the opinion that the proceedings under Chap VII "are a mixture of suit and execution proceedings rolled into one". It was held that the Act contemplates the filing of objection u/s 47, Civil P. C. even after an order for possession u/s 43 had been made and a writ of possession was duly filed by the applicant.

In my opinion, the proceedings which are contemplated by Section 41 of the Act cannot be said to have terminated till the relief contemplated by that section is properly worked out.

That this is the true position will also appear if we look through the other sections in the said Chapter which contemplate suits of different categories. Thus Section 45 contemplates a suit by a person aggrieved, not necessarily the occupant, for recovery of compensation for damage sustained by reason of any error, defect or irregularity in the mode of taking possession. The section also provides that the applicant will not be deemed to be a trespasser by reason of error, defect or irregularity if the applicant was entitled to possession at the date of the application. Section 46 also contemplates a suit by a person aggrieved by the applicant having obtained possession if the applicant was not entitled to possession at the date of the making of the application. The relief prayed for in a suit u/s 46 has not been specifically mentioned in the section and has been left undetermined for the simple reason that the suit may be filed immediately after the making of an application u/s 41 or much later after the delivery of possession of the premises. Section 49 also contemplates the filing of a suit for trying the title even though possession has been taken. There is thus no reason to restrict the operation of Section 47 further than is necessary because of the implications contained in the section itself, namely that an application u/s 47 cannot be filed if possession was already taken. In my opinion, Section 47 of the Act must be construed so as to permit the filing of an application under that section even after an order u/s 43 has been made.

It must be noted that para 2 of Section 47 provides that the decree in the suit referred to in Section 47 will have the effect of superseding an order u/s 43, if any. The clear implication is that the proposed suit may follow an order u/s 43. It is true that para 2 may also operate in cases where an order u/s 43 follows the initiation of the proposed suit in cases where there is delay in the disposal of the application for stay under that section, I think, however, that the operation of para 2 of Section 47 must be given its full play. If so, this is also an indication which supports the view that an application for stay may be made even though an order u/s 43 has been passed.

The above discussion leads me to hold that the mere making of an order u/s 43 of the Act does not preclude the making of an application for stay of proceedings on the terms contained in Section 47.

The view taken by me is supported by a decision of the Madras High Court in --''A. S. Krishna Iyer v. Subramania Ayer AIR 1923 Mad 323 (B) and by a Bench decision of the Bombay High Court in -- Mathuradas Vassanji and Another Vs. Tulsidas Damodar Ganatra, (C). The unreported decision of Sen J. in -- ''Ranibala Dasi v. Lalbehari Addy'', in --Civil Reyn Case No 1147 of 1948, 18-11-1948, (Cal) (D), assumes the above view as correct. The first contention on behalf of the petitioner must, therefore, be overruled.

Mr. Gupta also contended that the effect of the order of Chunder J. allowing the opposite party time to vacate on an application made by the latter disentitled the opposite- party from making the present application u/s 47. In my opinion, the order cannot operate as a waiver of the rights conferred on the opposite-party by Section 47 of the Act. It WHS a mere application for time to vacate. The defendant never intended to abandon his right to make an application u/s 47.

The second contention has also no force.

In the result this Rule must stand discharged. In the circumstances of this case, there will be no order as to costs.

Debabrata Mookerjee, J.

I agree.