Bhusan Chandra Sau vs Keshari Chand Daga

P.K. Banerjee, J.—This appeal arises out of a decree for ejectment against the Defendant Appellant. The Defendant is a monthly tenant in respect of the premises. He defaulted in the payment of rent. The Plaintiff also required the premises for reasonable use and occupation.

When the appeal was pending in this Court, the West Bengal Premises Tenancy Ordinance VI of 1967 came into force. The tenant-Defendant applied for relief under the Ordinance of 1967 before this Court.

The said application was placed for hearing along with the appeal before the Hon''ble Mr. Justice A. C. Sen. In view of the fact that his Lordship found it difficult to agree with the decision reported in Amar Chandra Roy v. Susanta Kumar Sen. His Lordship referred the matter as well as the appeal to the Division Bench. At the hearing of the appeal both sides submitted that we may hear the application first before hearing the appeal. We, therefore, are at the present moment called upon to decide the application for the present.

The point for decision in this application is that whether the High Court is competent to entertain application filed u/s 17(B) of the West Bengal Premises Tenancy Ordinance VI of 1967. Mr. Ghosh on behalf of the Petitioners contends that the application can be made in the High Court. He contends that the appeal is a continuation of the suit and, as such, the application cannot be made in the Court below inasmuch as the decree mentioned in Section 17(C) means the final decree, that is, the decree passed by the highest Court of the land and it is not a decree passed in the trial Court as the appeal is nothing but a continuation of the suit itself. In respect of his contention Mr. Ghosh relied on the decisions reported in Miss J. Paul v. Calcutta Boys School and Amar Chandra Roy and Anr. v. Susanta Kumar Sen (1968) 73 C.W.N. 219. I will now consider the effect of this decision and the facts and circumstances of the case. The decision reported in Miss J. Paul v. Calcutta Boys School (1966) 71 C.W.N. 285 is one in respect of the Ordinance of 1965. It may be pointed out that Section 17(A) sought to be introduced by the said Ordinance is in pari materia with Section 17(C) of the Ordinance of 1967. Mr. Justice Chatterjee holds in that said case that the appeal is nothing but a continuation of the suit and the decree mentioned in Section 17(A) of the Ordinance can only mean the final decree and, therefore, it must be deemed that as the appeal which is continuation of the suit is pending in the High Court and, as such, the application u/s 17(A) of the Ordinance of 1965 can be entertained. It is held by Mr. Justice Chatterjee that the decree u/s 17(A) of the Ordinance of 1965 means the decree which is final and, as such, no application u/s 17(A) need be filed when the suit is pending or an application in the suit is pending. Section 17(A), in accordance with the judgment of Mr. Justice Chatterjee, applies in all cases where the decree has been finally passed either in suit or in appeal before the Ordinance came into force and where the decree has not been satisfied by the delivery of possession.

By the Ordinance of 1965, Section 17 of the West Bengal Premises Tenancy Act, 1956, was amended. Section 5 of the Ordinance of 1965 reads as follows:

In the Sub-section (1) of Section 17 of the said Act�(a) after the words "within one month from the service of the writ of summons on him or where he appears in suit or proceeding without the writ of summons being served on him, within one month of his appearance" shall be inserted ; and (b) for the words "deposit in Court or pay to the landlord," the words "deposit in Court or with the Controller or pay to the landlord" shall be and shall be deemed always to have been substituted.

The amendment was made retrospective in its operation. After the amendment, therefore, any deposit made u/s 17 of the Act within one month from the date of service and/ or appearance with the Rent Controller would be valid deposit and, as such, the penal provision of Section 17(3) will not come into play. If any appeal was pending from a decree passed before the amendment it will be for the Appellate Court to give effect to the amendment as if the amended Section 17 was in the statute book on the day when the Court passed the decree. Take for instance the case that the Defendant-tenant, after the suit for ejectment was filed, deposits rent with a Rent Controller before the amendment of Section 17(1) of the parent Act. The said deposit would be invalid and Section 17(3) will come into play. The defence against delivery of possession will be struck out and the decree will be passed accordingly. In the appeal-against the said decree and after the amendment of Section 17(1) that decree will have to be set aside because the deposit, which was invalid under the parent Act, will not be invalid in view of the amendment which is retrospective in operation. In that case it will not be necessary for the defaulting tenant to make an application u/s 17(B) or 17(C) of the Ordinance of 1967. The Appellate Court while hearing the appeal will give effect to the amendment. Section 17(A), however, in my opinion, was enacted for a different purpose altogether. The Legislature while enacting Section 17(A) envisaged a position when no appeal has been preferred against the decree passed by the trial Court in a suit or order for recovery of possession in a proceeding. But, where the possession of the premises has not been recovered from the tenant by execution of such decree or order the tenant may make an application to the Court which made such decree or order for setting aside the said decree or order. In my opinion, Section 17(A) as inserted by the Ordinance of 1965 does not envisage a decree in appeal and this provision will only come into play when no appeal has been taken from the decree or order passed in ejectment cases. In that view of the matter, I most respectfully differ with the view of the Hon''ble Mr. Justice Chatterjee in Miss J. Paul v. Calcutta Boys School (Supra ) to the effect that decree in Section 17(A) of the Ordinance would mean a decree which is final and the suit in Section 17(A) would include appeal. In my opinion, when the appeal is pending, Section 17(1) as amended by the Ordinance of 1965 will give complete relief to the tenant. Only in cases where no such appeal was pending and the decree has already been passed and not satisfied by delivery of possession, then and then only the tenant can apply before the Court which passed the decree within 60 days from the date of commencement of the Ordinance for setting aside the decree or order of delivery of possession as a proceeding.

In this case, however, we are concerned with the Ordinance of 1967. Mr. Ghosh, appearing for the Petitioner, submits that the Ordinance of 1967 is in pari materia with that the Ordinance of 1965 and the decision of Mr. Justice Chatterjee applies in all fours to the said Ordinance of 1967. The provision of Section 17(C) of the Ordinance of 1967 is in the same term as Section 17(A) of the Ordinance of 1965. Mr. Ghosh submits that Section 17(C) applies in case when the suit is pending in appeal and the decree means final decree, and in that view of the matter the application mentioned in Section 17(C) can only be made in the Appellate Court as the matter was pending in appeal at the time. He relies on a case reported in Amur Chandra Roy v. Susanta Kumar Sen (Supra ) decided by Mr. Justice S. K. Dutt.

Reading Section 17(B) of the Ordinance of 1967 it appears that the application u/s 17(B) is to be made to set aside the order striking out the defence against delivery of possession and that it should be made within 30 days where a suit is pending at the date of the commencement of the Ordinance of 1967. On the application being made u/s 17(B)(2) it is for the Court to decide the total amount due and liable to be deposited or paid by the tenant. Section 17(B)(3) provides that if the deposits are made as per Order (2) Supra (1) Supra passed u/s 17(B)(2), the order striking out the defence against delivery of possession is to be set aside and the tenant will be permitted to defend the claim for delivery of possession.

It appears that Section 17(B) & (C) of the Ordinance of 1965 work on a different field and they are complete Code in itself. Section 17(B) provides for application to set aside the order striking out the defence against delivery of possession on an application being made within 30 days of such order. Section 17(B)(2) provides for disposal of the application by the Court. It is significant that no provision was made therein for giving notice of the said application by the tenant to the landlord as such provision was not necessary in view of the fact that the suit itself was pending and no application could be made by the tenant without notice to the landlord, the Plaintiff in the suit and, therefore, the provision of such notice was redundant. I am, therefore, of the opinion that u/s 17(B) the Court therein can only mean Court of first instance or the trial Court where the suit is pending and not the Appellate Court.

Section 17(C) of the Ordinance of 1967 does not mention at all about the setting aside of the order of striking out the defence but only gives the power to the Court to set aside the decree where the defence against delivery of possession was struck out, but the possession has not been taken as yet. By insertion of the explanation, it is made clear that even in case where the decree was passed by the Appellate Court an application under this Sub-section shall be made to the Court of the first instance. Sub-sections (3) and (4) make provision for service of notice on the landlord before the order is made. In my opinion, such provision was found necessary because the suit came to an end. I, therefore, hold that Section 17(B) of the Ordinance of 1967 applies only in cases where the order was made striking out the defence, but no decree as yet been passed and the suit was still pending in the trial Court and the suit as mentioned in the said section does not include the appeal and Section 17(C) applies where a decree which has been passed in cases where the defence against delivery of possession was struck out, but possession of such premises has not been recovered. By explanation of Section 17(C) it has been made clear that the application under this Sub-section shall be made to the Court of first instance where the decree was passed in the trial Court or in the Appeal Court. I. therefore, most respectfully differ with the view taken in Amar Chandra Roy v. Susanta Kumar Sen (Supra) and that of Miss J. Paul v. Calcutta Boys School (Supra). I, therefore, hold that the application filed by the Appellant before this Court ought to have been filed in the Court of first instance; this Court had no jurisdiction to entertain the application. Mr. Ghosh argued on the basis of the judgment in Amar Chandra Roy v. Susanta Kumar Sen that the same application, which has been filed before this Court within time, may be sent down to the lower Court for disposal. But as we find that this Court has no jurisdiction to entertain this application, we can-not make that order. This order, however, will be without prejudice to the Appellant to file the same before the trial Court if it is not otherwise barred.

S.K. Chakravarti, J.

I have had an opportunity of going through the judgment delivered by my Lord and I agree with the conclusions he had arrived at as also the reasoning behind the same. I would like to add a few words of my own.

The main point which arises for determination in this appeal is as to whether an application for setting aside the decree or order for ejectment under the Ordinance of 1967 would lie in the Court of Appeal where the appeal is pending or in the Court of first instance which had struck out the defence against delivery of possession.

While the appeal was pending in this Court, the Ordinance came into effect, and the application has been filed in this Court. Mr. M. N. Ghosh contends that the term ''suit'' includes ''appeal'', and as the appeal is pending it must be held to be a continuation of the suit, and as such the application u/s 17(B) of the Act as introduced by the Ordinance in question, will lie in this Court. Mr. S.C. Das Gupta appearing on behalf of the Respondent contends that the proper application would be u/s 17(C) of the Act as introduced by the Ordinance, and the proper application should have been filed in the trial Court.

The term ''suit'' does not necessarily include an appeal, and it has been laid down that whether a ''suit'' includes ''appeal'' depends upon the subject-matter and the context. It is against these principles that we have to interpret Section 17(B) & (C). It should be noted in this connection that as Section 17(B) stands, the tenant is to make an application to ''the Court'' to set aside such order. The use of the term ''the Court'' would indicate definitely that it would be the same Court which has struck out the defence against delivery of possession. In this view, this application cannot be made to the Court of Appeal. It should further be noted in this connection that if Section 17(B) relates to an appeal, as is contended by Mr. Ghosh, then there should have been provision in this Sub-section to set aside the decree also. It cannot be presumed that the Court will also set aside the decree in such a case unless there is a specific provision to that effect. The absence of any provision to set aside the decree as has been made u/s 17(C) is also significant. Section 17(C) as introduced by the Ordinance would apply where three conditions are fulfilled: first of all, there must be a decree for the recovery of possession of any premises passed before the commencement of the West Bengal Premises Tenancy Amendment Ordinance, 1967, secondly, the defence against delivery of possession must have been struck out, and thirdly, the possession of such premises had not been recovered from the tenant by the execution of such decree. These three conditions are fulfilled in this case, and therefore, on its very. terms Section 17(C) would apply. The explanation to Section 17(C)(1) would also make it clear that Section 17(C) may apply even when there has been an appeal. Under the ordinary canons of interpretation of statutes where, on the plain meaning of section, that section would apply, it is not permissible to the Court to go in for a labored and forced interpretation. Mr. Ghosh submits that the term ''decree'' as used u/s 17(C) refers to a final decree. We should not see in this section something which is not there. In this view of the matter, I agree with my Lord that Section 17(C) of the Ordinance would apply to the facts of this case, and that the tenant should have filed, the application before the Court which struck out the defence. I, therefore, agree with my Lord that the application does not lie here and it has to be dismissed without prejudice to the tenants'' right to make a proper application before the appropriate Court.