Harihar Nath Pandey vs Bijoy Shankar Tewari

Basudev Panigrahi, J.—This is a revisional application against the order dated June 26, 1996 passed by the learned 5th Judge, Small Causes Court, Calcutta in Distress Case No. 3/93 filed by the Respondent no. 2 Josoda Devi Lakhotia.

The revisionist who claimed as a tenant in respect of one room in the ground floor of premises No. 30, Burtolla Street, Calcutta has filed this revisional application against the order passed by the Small Causes Court u/s 60 of the Small Causes Court Act.

The Petitioner claimed to have been inducted as a tenant in respect of the said room by one Kamal Kr. Lakhotia. who too was a lessee since May, 1982 at the monthly rent of Rs. 150.00 payable according to English calender month. Since then the Petitioner had been paying rent to the said lessee. In or about 1989, the opposition party No. 2 purchased the premises No. 30, Burtolla Street, Calcutta and the Petitioner became a tenant under her on same condition. From the date of purchase the Petitioner has been paying rents to the opposite party No. 2.

4, In June 1993 while the Petitioner went to his native place at Allahabad and on immediately following his return, in or about early part of 1993, found the demised premises under lock and key. After making discreet enquiry and on ascertaining from his landlady opposite party No. 2, he could come to know that due to nonpayment of rent for 10 months from March 92 to December 92, the landlady filed a distress proceeding in the Small Causes Court, Calcutta against him and took out the distress warrant for realisation of rent. Therefore, the Petitioner finding no way out deposited the rent due for payment amounting to Rs. 1,612.50 on August 6, 1993 and, consequently, filed an application for recalling the order of attachment and releasing the keys of his tenanted room. Oh the same day, the . opposite party No. 1 filed an application u/s 60 of the. Presidency Smail Causes Courts Act (in short the said Act) praying for an order that the distress warrant be cancelled/withdrawn and the rooms locked by the court''s bailiff be opened and delivered to him. In the said application filed by the opposite party No. 1 it was, inter alia, stated that he and his family members are the tenants in respect of the entire premises including the room which has been claimed by the Petitioner. It further transpires that he and his other family members filed a suit being T.S, No. 585 of 1993 against the Petitioner and the opposite party No. 2 in City Civil Court at Calcutta and obtained the order of injunction against them. They also filed a suit being Suit No. 1552 of 1964 in this Court for declaration that they are the tenants and injunction against the landlord and his niece Smt. Gita Rani Khaitan. this Court also passed an order of injunction against the opposite party No. 2s'' predeces-sor-in-interest who had claimed right, as a lessee of the said premises including the room which is under dispute. It has, inter alia, been alleged that the Petitioner in collusive with the opposite party No. 2 has filed this proceeding to defeat the claim of the opposite party No. 1.

The learned Small Causes Court on hearing both parties allowed the claim of the opposite party No. 1 u/s 60 of the Act and directed the keys of the room be handed over to him.

Dr. Banerjee, the learned advocate appearing for the Petitioner, has urged with strong intensity of conviction that in this case the learned Judge, Small Causes Court ha,s committed serious jurisdictional error in determining the rival claim of tenancy between the Petitioner vis-a-vis the opposite party No. 1. He has further argued that the scope of Section 53. 57 of the Small Causes Court is being very narrow and within restricted compass, the Small Causes Court could not have decided the rival claim of title. Opposite party No. 1 had never claimed that the seized articles of distress proceeding belonged to him. If the Petitioner was not a tenant then the distress proceeding could not have been maintainable. The opposite party No. 1 has significantly failed to produce any rent receipt in evidence of his possession from the Bailiff report also, it is clear that no articles of ''Bhojanalaya'' as claimed by the opposite party no 1 could be noticed inside the room except one Mofad which admittedly belonged to Mr. Verma, the learned advocate appearing for the opposite party No. 1.

Mr. Bachwat, the learned advocate appearing for the opposite party No. 2, has, however, contended that in the suit filed by opposite party No. 1 before this Court it was directed by this Court prohibiting the landlord from letting out the premises. The schedule has not been attached by the opposite party "no. 1 showing the description of the premises alleged to have been tenanted out to him. Whether the opposite party No. 1 is a tenant in respect of the entire premises or not is an issue before this Court in the other suit, therefore, the Small Causes Court should refrain itself from dealing with the same aspect.

it is also stressed on behalf of the opposite party No. 1 that the entire premises was let-out to him which is evident from Annexure ''A'' dated February 11, 1956 and the same was produced before the High Court on August 21, 1964. The Small Causes Court has no right to lock the room and if it was locked by the court bailiff, then, it was obligatory to hand over the key to tree person from whom it was taken. Interim order of injunction was passed by this Court on January 14, 1967 on being satisfied as regards the possession of the opposite party No. 1. The question of surrender of possession to the receiver does not carry any iota of truth. Since Josoda claims to be a transferee from Rajkumar, the interim order in the suit shall equally bind her. The opposite party No. 1 was allowed to enjoy the benefits of a tenant subject to realisation of rent by Gita Rani Khaitan. There was a proceeding u/s 144 of the Code of Criminal Procedure between the parties and in the said 144 proceeding the claim of possession, of the opposite party was, however, accepted. The opposite party No. 1 has filed a suit in the City Civil Court or permanent injunction and also prayed for ad-interim injunction. The City Civil Court was inclined to pass an order of injunction against the opposite party No. 2 and the Petitioner from disturbing possession of the opposite party No. 1.

Mr. Bachwat, the learned advocate appearing for the landlady, has advanced an interesting argument that in a proceeding for realisation of rent u/s 53 of the Small Causes Act what all the Small Causes Court is required to see is that there was arrear of rent against the tenant. In such case, distress warrant should be issued against the tenant for attachment of movables in terms of Form ''B'' of Section 54. Sections 53 and 54 deal with only movables. In such background, the learned Small Causes Court was not justified in directing the bailiff to hand over the key of the premises to the opposite party No. 1, On deposit being made for the arrears of rent the article seized should be returned to the tenant.

On a careful reading of the impugned order, it appears that the learned Small Causes Court was aware of its limitation while dealing with an application filed u/s 60 of the Small Causes Act. The claim of tenancy as advanced by opposite party No. 1 is pending in different courts. On the other hand, the Petitioner had also claimed tenancy right and started 144 proceeding which was finally dropped. It has been submitted by the opposite party No. 1 that the Petitioner is a mere stooge of the opposite party No. 2 landlady only to defeat the claim of opposite party No. 1. In a summary proceeding the court need not go into such complicated question of adjudication of title. Suffice it to say that there has been a Civil Suit pending between the parties before the City. Civil Court where, both parties, namely, the opposite party No. 2 and the Petitioner were restrained to interfere with the possession of the opposite party No. 1. It has been argued by Bachwat, the learned advocate appearing for the opposite party No. 2, that the said order was passed after initiation of this proceeding. Even assuming it was filed after starting of this proceeding, the impact of the restraint order cannot be whittled down by mere pendency of this proceeding. Since the final order passed in a Small Cause proceeding is subject to the decision of the court and any party aggrieved against the order of injunction should have filed an appeal. Admittedly, neither the Petitioner nor the opposite party No. 2 did challenge the validity of the injunction order. Therefore, when such order was staring at their face, the opposite party no, 2 could not have proceeded only against the Petitioner without impleading the opposite party No. 1.

Undisputedly, the opposite party No. 1 earlier filed a suit claiming tenancy right over the entire premises including the room which is under dispute. In the said suit an order of injunction was passed against the vendor of the opposite party No. 2. Therefore, the opposite party No. 2 shall be bound by the injunction order which was passed against her vendor. It has been submitted that the suit filed by the opposite party No. 1 has in the meanwhile been heard out awaiting final verdict. Since the impugned order passed u/s 60 of the Small Causes Court Act is summary in nature, the force of the order is obviously subject to the result of the Civil Suit.

Mr. Bachwat has submitted that let this proceeding await till the judgment which is likely to be passed by this Court in the other suit which was strongly resisted by Mr. Verma. Since the force of the order is subject to the decision of the suit I do not think it is necessary to wait till the judgment of the suit is pronounced but it is needless to mention that even though the impugned order is affirmed, the party shall be governed by the final decision of the suit pending before the Single Bench of the Court.

On perusal of the plaint filed by the opposite party No. 1 in this Court it is found that he has claimed tenancy of the entire premises including one room which has been claimed by the Petitioner. Therefore, if I am asked to decide rival claim of tenancy it would amount to transgression of the jurisdiction of other courts.

Reliance was placed on a decision reported in Bhola Singh and Others Vs. Gosto Behari Sarkar,

(a) Presidency Small Cause Courts Act (15 of 1882) Section 53 -- Proceedings on application u/s 53 --Scope.

On a review of the scheme and relevant sections of the Presidency Small Cause Courts Act three broad indisputable propositions emerge:

(1) That the Court is essentially a summary Court trying ''Small Causes''.

(2) That no regular suit for the recovery of immoveable property which raises primarily questions of disputed title can be entertained by this Court and,

(3) That the distress procedure in Chapter VIII cannot deal with complicated questions of title, when regular suits for the same cannot be entertained.

The Small Cause Court procedure for distress under Chapter VIII of the Act is a summary remedy by which a person seeks an the moveable''s of any person to be held as almost a pledge to compel the performance of the satisfaction of a debt; the debt however, must be a debt and not a mere pretence to cover controversial questions of title. This distress warrant or its procedure is not a suit. The procedure is a summary one because it starts ex parte on a mere sworn affidavit which only asserts as its foundation, a debt. Because it is ex parte in the first instance, it is all the more essential for the Court to examine the objections when they are made. This summary procedure is not, however, open when the matter involves highly complex questions of title etc:

Held on facts of the case that the case raised highly intricate and controversial questions of title company law and liquidation and that therefore the distress proceedings were entirely misconceived.

(b) Presidency Small Causes Courts Act (15 of 1882). Section 60 -- Withdrawal of deposit Rent due to opposite party (landlord) paid by Petitioner (tenant) to official liquidator appointed by Court -- Court cannot while discharging warrant as misconceived restrain Petitioner tenant, from withdrawing deposit till landlord takes other appropriate proceedings against him.

On a careful cogitation of the provision of the Act it appears that the Small Causes Court Procedure for distress proceeding under Chapter VIII of the Act is summary-nature. A person invoking such provision seeks as an immediate redress to take into his possession the moveables of any person, to be held as almost a pledge to compel the performance of satisfaction of a debt, the debt must not be a mere pretence or colourable exercise of right. Before the court exercises. its power on the basis of an application, the third party does not get any scope to resist the application so filed for issuing distress warrant, there-fore, the remedy has been provided to a third party for filing an application u/s 60 for discharging warrant as misconceived. In the instant case, the learned trial court has very .carefully avoided to adjudicate the rival claim of tenancy between the Petitioner and the. opposite party No. 1 and has left undecided which has to be resolved in an appropriate civil suit. Admittedly, more than one suit are pending in different courts. The rights of the parties shall have to be worked-out in the aforementioned suits as indicated above. I observed that this decision shall be subject to the result of the civil suit pending in this Court, but as a matter of fact, since the distress warrant issued by the Small Causes Court was subsequently proved to have been wrongly passed and the court has realised that it was an abuse of the process of court, in my opinion, the Small Causes Court took the correct view in recalling the said order and directed the articles to be placed in the same premises and the key of the said room be handed over to the opposite party No. 1.

In the above back-drop of the case, I did not find that the Small Causes Court has committed any factual or jurisdictional error in passing the order so as to be interfered with in this proceeding. Accordingly, the revisional application is found to be devoid of merit and therefore dismissed but in the circumstances without cost.

Heard the learned Advocates appearing for the parties.

A prayer has been made on behalf of the applicant that he intends to prefer SLP before the Supreme Court and for a limited period there may be an order of interim stay. Mr. Verma, learned Advocate appearing for the opposite party No. 1 does not seriously object to such prayer.

Accordingly, let there be an interim stay for a period of four weeks failing which interim stay will stand automatically vacated.

Both parties have requested for supply of urgent xerox certify copy. In that case xerox certified copy of the order be supplied to both parties within two weeks from the date of application therefore.