Kanai Lal Sur vs Paramnidhi Sadhukhan

Renupada Mukherjee, J

This appeal as argued by Mr. Mitter on behalf of the judgment-debtor appellant involves a pure question of law. It will be necessary to state only the following facts for appreciating how the question of law has arisen. Decree-holder Paramnidhi Sadhukhan, who is respondent in this appeal obtained a decree for ejectment against appellant Kanai Lal Sur from a portion of premises No. 28, R.G. Kar Road, Calcutta, on 16th March, 1948, in the Munsif''s Additional Court at Sealdah. There was quite a multiplicity of proceedings between the parties after the passing of the decree including appeals, second appeals, application and revisional cases until the decree-holder presented an application for execution of the decree on 22nd May, 1953. The judgment-debtor filed an objection u/s 47 of the CPC to the execution of the decree on various grounds. The objection was disallowed by the executing Court and upon an appeal being preferred by the judgment-debtor the lower appellate Court dismissed the appeal. It may only be mentioned that according to the finding of the lower appellate Court the judgment-debtor is a thika tenant in respect of the disputed premises and this finding is not challenged by the decree-holder opposite party in this appeal.

Mr. Mitter submitted on behalf of the appellant that he was not relying on any of the grounds put forth on behalf of his client in the Courts below but he contended that u/s 5 of the Calcutta Thika Tenancy Act of 1953 (Act VI of 1953) which came into operation on 14th March, 1953, that is, a little more than two months prior to the filing of the execution petition by the decree-holder, it is the Controller and Controller only who has got jurisdiction to deal with the execution petition and not the Civil Court.

The relevant portion of section 5 (1) of Act VI of 1953, runs as follows:

Notwithstanding anything contained in any other law for the time being in force, a landlord wishing to eject a thika tenant on one or more of the grounds specified in section 3 shall apply in the prescribed manner to the Controller for an order in that behalf..........

Mr. Mitter contended that it would not be necessary u/s 5(1) of Act VI of 1953 to rescind or vacate decrees already passed by Civil Courts and the Controller would assume jurisdiction in all ejectment proceedings between landlords and thika tenants, whether arising upon applications submitted before the Controller or on the basis of final decrees already passed by Civil Courts. Mr. Mitter tried to support this contention of his by comparing the wordings of section 5(1) of the Calcutta Thika Tenancy Act of 1953, with the wordings of section 5(1) of the Calcutta Thika Tenancy Act of 1949. The relevant portion of section 5(1) of the Calcutta Thika Tenancy Act of 1949 (West Bengal Act II of 1949) runs as follows :

''Notwithstanding anything contained in any other law for the time being in force but subject to the provisions of section 28, a landlord wishing to eject the thika tenant on one or more of the grounds specified in section 3, shall apply in the prescribed manner to the Controller for an order in that behalf............

Section 28 of the Thika Tenancy Act of 1949. to which reference has been made in section 5(1) of the Act deals with the question of rescinding or varying decrees already passed by Civil Courts. Mr. Mitter contended that section 5(1) of the Act of 1949, made an express provision for rescinding or varying decrees already passed by Civil Courts and the deletion of that provision from the Act of 1953 gives the Controller jurisdiction to deal with all ejectment matters including matters in which final decrees have already been made by Civil Courts.

Mr. Gupta, appearing on behalf of the decree-holder respondent contended, on the other hand, that section 5(1) of the Thika Tenancy Act as amended by Act VI of 1953 deals only with original applications filed before the Thika Controller and final decrees already passed by Civil Courts are altogether outside the scope of this section. After carefully considering the arguments adduced on behalf of both parties and after closely reading section 5(1) of the Thika Tenancy Act as amended by Act VI of 1953, I am unable to persuade myself to accept the contention put forth on behalf of the appellant. In my opinion, this section includes only original applications filed before the Controller and it does not cover cases in which final decrees have already been passed by Civil Courts. This would be clear from the fact that in section 5(1) of the Thika Tenancy Act as amended by Act VI of 1953 a landlord who wishes to eject a thika tenant is required to state one or more of the grounds specified in section 3 for ejectment of the tenant. It is needless to say that final decrees for ejectment would contain no such grounds and to allow the Controller to reopen the decrees for the purpose of ascertaining whether the landlord had good grounds for ejectment or not would be to allow him to sit in appeal over the judgment of Civil Courts. The Legislature surely did not contemplate such a state of affairs.

A question may arise in this connection whether Act VI of 1953, has or has not given any protection to thika tenants against whom final decrees for ejectment have already been passed. If the amending Act of 1953 be read along with the Ordinance which preceded it, namely, the Calcutta Thika Tenancy Ordinance of 1952 (West Bengal Ordinance No. XV of 1952), then there would be no doubt that some limited protection was given. Section 5(2) of the Ordinance of 1952, provides for applications being made by thika tenants for setting aside decrees for ejectment already passed within three months of the commencement of the Ordinance. Of course, such applications can only be made with respect to a limited class of decrees specified in section 5(2) itself. Section 9 of the Calcutta Thika Tenancy Amendment Act of 1953, has kept such applications alive after the expiry of the life of the Ordinance of 1952. The result is that if a thika tenant against whom final decree for ejectment was passed failed to get it vacated or varied according to the provisions of section 5(2) of the Ordinance of 1952, he lost his right for ever and the amending Act of 1953 did not make any further provision for reopening such a final decree.

In this connection Mr. Mitter drew my attention to a case reported in 93 C.L.J., 52 Madanlal Bhanaranka alias Bhaneranka v. Radhaballav Poddar & others in support of his argument that a thika tenant is entitled to the benefit of the Amendment Act of 1953 even in cases where a suit for ejectment had been instituted against him before the Act of 1949 came into existence but which was pending when the Act came into force. This case has not, however, any application to the facts of the present case, because here the final decree had already been passed before the Act of 1953 came into operation and no steps had been taken by the tenant for vacating the decree in accordance with the provisions of section 5(2) of the Ordinance of 1952. In my judgment, it is the civil court which would now execute the decree and the contention of Mr. Mitter that it is the Controller only who would deal with the execution petition must fail.

The only contention raised on behalf of appellant having failed, the appeal is dismissed with costs to the respondent. The judgment-debtor appellant must vacate the disputed premises before the end of Jaistha, 1362 B.S., failing which execution will proceed according to law. Leave to appeal under clause 15 of the Letters Patent is asked for and is refused.