Mohon Lal Khettry vs Chuni Lal Khettry

Guha, J.—This is an application by the landlord. substantially under sec. 115 of the Code of Civil Procedure, for revision of an order passed by a Presidency Small Cause Court Judge on the 28th June. 1950. Art. 227 of the Constitution was also mentioned in the heading of the application but that article has hardly any application in the circumstances of the present case and as such I proceed to decide the matter only under sec. 115 of the Code of Civil Procedure. The facts which have given rise to the present application are briefly as follows: the Opposite Party was a tenant under the present Petitioner. On the 12th.May. 1949, the Petitioner filed proceedings under sec. 41 of the Presidency Small Cause Courts Act against the Opposite Party for eviction on the ground of ipso facto determination of the tenancy for non-payment of" rent. On the 4th January. 1950. the Lower Court passed an order in favour of the present Petitioner granting his prayer and directing the Opposite Party to deliver possession on the 30th April, 1950. In the meantime the West Bengal Premises Rent Control Act of 1950 came Into force and the present Opposite Party applied before the learned Judge under sec. 18 of that Act for vacating the order for possession. By his order, dated the 28th June, 1950 the learned Judge allowed the application under sec. 12 (1) of the Act and set aside the order for possession.

On behalf of the landlord Petitioner, it is contended before me that in the circumstances of the present case, sec. 18 (1) of the Act of 1950 has no application inasmuch as the order for possession passed by the learned Judge on the 4th January. 1950 was not a decree within the meaning of that section. So far as this objection is concerned, the matter fell for decision in a very recent case, namely, the case of Rai Bahadur Atulya Dhan Banerjee v. Sudhang-shu Bhusan Dutta 55 C. W. N. 848 (1951) where a Division Bench of this Court has ruled that the expression "Decree for recovery of possession'''' in sec. 18 of the 1950 Act should be broadly construed so as to include an order for recovery of possession under Chap. VII of the Presidency Small Cause Courts Act, 1882. That recent Bench decision is binding upon me and following that decision 1 overrule the first objection.

Secondly, it has been urged before me on behalf of the Petitioner that as the application under sec. 18 was disposed of by the Lower Court on the 28th June, 1950, before the recent amendment of the West Bengal Premises Kent Control (Temporary Provisions) Amendment Act, 1950, that is, the West Bengal Act 62 of 1950 came into force, the tenant is not entitled to the benefit of the retrospective operation of sec. 5 of that Amending Act. Sec. 5 of the appending Act lays down that in all applications made under sub-sec. (1) of sec. 18 of the West Bengal Premises Rent Control Act, 1950, the latter Act as amended by the amending Act shall apply and shall be deemed to have applied. The question for determination, therefore, is whether in view of the fact that the application under sec. 18 was disposed of by the lower Court on the 28th June. 1950, the tenant is entitled to the benefit of sec. 5 of the amending Act at this stage. The present revisional application was filed on the 14th July, 1950, before the amending Act came into force. It has been argued on behalf of the tenant Opposite Party that as the Revision case is pending in this Court up to this clay, the tenant is entitled to the benefit of sec. 5 of the amending Act. Everything really turns upon the correct interpretation of the word "pending" which appears in sec. 5, In an English case, namely, Re: Clagets Estate: Fordham v. Claget 1882 20 Ch. D. 687 at p. 653 the word "pending" was construed in the following way: a cause is said to be pending in a Court of justice when any proceeding can be taken in it. That is the test. If you can take any proceeding it is pending. This interpretation of the word "pending" was quoted with approval in the Full Bench case of Santosh Kumar Das v. Nripenra Kumar Roy Choudhury 53 C W N 538 (1949). Upon this in- terpretation of the word "pending," it is quite clear that the application under sec. 18, though it has been disposed of by the trial Court, is pending so far as this Court of revision is concerned, inasmuch as it is awaiting adjudication in this Court. In this view of the matter, I am of opinion that the tenant is entitled to the benefit of sec. 5 of the amending Act. In the result, the Rule is discharged. In the circumstances of this case, I make no order as to costs.