Mahadeb Lal Kanodia vs The Administrator-General

S.R. Das Gupta, J.—This is an appeal from a decision of the Subordinate Judge, second court, Howrah, dated August 6, 1953, affirming the decision of the Munsif, second court, Howrah, dated July 7, 1953.

The matter arises in this way: There was a decree for ejectment against the Appellant in Title Suit No. 316 of 1941 in the second court of the Munsif, Howrah. The premises in question was 95/1, Dharamtola Road, Howrah. On August 8, 1941, the said decree was passed. Thereafter, an appeal was filed against the said decree and on April 9, 1943, the appeal was dismissed. Thereafter, the Administrator-General of West Bengal, who is the present Respondent, came to be substituted in place of the original decree-holders and he started an execution case being Execution Case No. 94 of 1949. In the meantime the Thika Tenancy Act of 1949 had come into existence and on March 19, 1952, an application was made u/s 28 of the said Act. That section provides that where any decree or order for the recovery of possession of any holding from a thika tenant has been made before the date of commencement of that Act but the possession of such holding has not been recovered from the thika tenant by the execution of such decree or order, the court by which the decree or order was made may, if it is of opinion that the decree or order is not in conformity with any provision of this Act other than Sub-section (1) of Section 5 or Section 27, rescind or vary the decree or order. During the pendency of that application made u/s 28 of the Act, the Thika Tenancy Ordinance of 1952 came into force. The said Ordinance was passed on October 21, 1952. Thereafter, an Amending Act being Act VI of 1953, was passed. Section 8 of the said Act provides that Sections 28 and 29 of the Act of 1949 shall be omitted. Sub-clause (2) of Section 1 of the Amending Act which is material for our present purpose, reads as follows:

It shall come into force immediately on the Calcutta Thika Tenancy (Amendment) Ordinance, 1952, ceasing to operate:

Provided that the provisions of the Calcutta Thika Tenancy Act, 1949, as amended by this Act, shall, subject to the provisions of Section 9, also apply and be deemed to have always applied to all suits, appeals and proceedings pending.

(a) before any court, or

(b) before the Controller, or

(c) before the person deciding an appeal u/s 27 of the said Act, on the date of the commencement of the Calcutta Thika Tenancy (Amendment) Ordinance, 1952.

Thereafter, the said application u/s 28 came to be heard and was dismissed on July 7, 1953, by the learned Munsif, the ground of such dismissal being that having regard to the provisions of the Amending Act to which I have referred Section 28 is no longer in existence, and was not applicable. Against the said decision there was an appeal, the appeal was also dismissed and thereafter the present appeal before us has been filed.

The learned advocate appearing on behalf of the Appellant contended that the view taken by the courts below was wrong. He contended that notwithstanding the provisions of the Amending Act of 1953. Section 28 of the old Act was still applicable to all pending proceedings. In support of that contention, he relied upon a decision of this Court given in the case of Deorajin Debi and Another Vs. Satyadhyan Ghosal and Others, .

The question which we have to decide in this appeal is whether or not after the introduction of the Amending Act of 1953, the provisions of Section 28 still remained applicable to a proceeding which was pending at the date, when the said Ordinance came into force. There are two conflicting decisions of this Court on this point, Chunder, J., in the case of Jogiai Chamaria v. Atul Krishna Laha (1953) 57 C.W.N. 566, held that in view of the Section 1 of the Thika Tenancy Amendment Act, 1953, and its proviso, it is clear that in pending proceedings that Act as amended by this Amendment Act of 1953 has got to be applied and shall be deemed to have application always and as in Section 8 of the Amending Act, it is stated that Sections 28 and 29 of the original Act shall be omitted, the result is that it is to be deemed always not to have Sections 28 and 29 as far as pending proceedings are concerned. A contrary view has been taken in a recent decision of this Court in the case of Deorajin Debi and Anr. v. Satyadhan Ghosal and Ors. (Supra). Sen, J., in that case held that the view taken by Chunder, J., could not be accepted and that Section 28 was still applicable to a pending proceedings. P.N. Mookerjee, J., concurred with the said view. In our opinion Sub-section (2) of Section 1 of the Amending Act, read with Section 8 thereof makes it quite clear that the original Act is to be deemed always not to have Sections 28 and 29 so far as pending proceedings are concerned. I have already set out the provisions of Sub-section (2) of Section 1 of the Amending Act and the proviso to the said Sub-section. The effect of that proviso in my opinion is that the Calcutta Thika Tenancy Act, 1949, as amended by the Act of 1953, shall be deemed to have always applied to pending proceedings. Now as a result of Section 8 of the Amending Act, Section 28 is omitted from the old Act of 1949 and to this extent the old Act of 1949 stands amended. The result, therefore, is that the Calcutta Thika Tenancy Act, 1949, without Section 28 shall be deemed to have always applied to all suits and proceedings pending on the date when the Amending Act came into force. The proceedings in the present case was pending when Amending Act of 1953 came into existence, and because of the Amending Act, Section 28 could no longer be applicable to such a proceeding. That seems to me to be the obvious effect of the proviso to Sub-section (2) of Section 1 of the Calcutta Thika Tenancy (Amendment) Act, 1953, read with Section 8 of the said Act. Chunder, J. has taken that view and we respectfully agree with the same. We are unable to subscribe to the view taken by P.N. Mookerjee and Sen, JJ. in the case to which I have referred. It was urged before Sen, J. that there is a distinction between the words ''amended'' and ''omitted'' and that when the proviso uses the word ''amended'' it does not use the thing which has been omitted by the Act. Sen, J. did not accept that contention, but his Lordship held that ''proviso'' to Section 1(2) of the Amendment Act does not say that the amended Act shall be deemed to have been the law from the commencement of the original Act; it only says that the provisions of the amended Act shall apply and shall be deemed to have always applied to pending proceedings. If the amended provisions were to be deemed to have been the law always, pending proceedings under an omitted, and therefore deemed to have been nonexistent, section would necessarily become incompetent. But to say that the amended provisions of the Act from which Section 28 has been omitted shall be held to have always applied to pending proceedings even u/s 28 is not the same thing as to say that the proceedings u/s 28 become incompetent. As I have said before I am unable to agree with the view taken by His Lordship. I do not think there would be any difference in result in the use of one or other of the two expressions mentioned by His Lordship as aforesaid. In my opinion the plain meaning of the proviso to Sub-section (2) of Section 1 of the Amending Act makes it clear that Section 28 is not applicable to the present proceedings and I agree with the view taken by Chunder, J. on this point.

In the result, therefore, this appeal fails and is dismissed.

In the circumstances of this case each party will bear its own costs in this appeal.

No order is necessary on the application u/s 115 of the Code of Civil Procedure.

The Appellant wants that the decree should be stayed for three months. That prayer is granted.

Mallick, J.

I agree.