Ms. Advertising Consultant (I) Ltd. vs Mamraj Saraf and Others

Mookerjee, C.J.—The petitioner company is admittedly a tenant under the opposite parties in respect of a portion of Premises No. 63, Rafi Ahmed Kidwai Road, Calcutta at a rent of Rs. 21 thousand per month payable separately to the opposite parties in the manner set out in paragraph 1 of the Revisional Application. The opposite parties who claimed to be entitled to a sum of Rs. 63,000 as arrears of rent for the months of November and December, 1986 and January, 1987, applied u/s 53 of the Presidency Small Cause Courts Act, 1882 for issue of a distress warrant against the petitioner. Thereupon, the Registrar, Presidency Small Causes Court had issued a distress warrant u/s 54 of the Presidency Small Cause Courts Act, 1882. In pursuance of the said warrant a Bailiff of the court had seized certain movable properties found in the premises occupied by the petitioner company. The petitioner company has made an application u/s 60 of the Presidency Small Cause Courts Act, 1882 for discharging the said warrant and release the distrained articles. The learned Judge, 2nd Bench, Small Causes Court, Calcutta, by his order dated 28th March, 1987, has rejected the preliminary objection raised by the petitioner that the amount involved being Rs. 67415/- including costs, the Court of Small Causes, Calcutta, had no jurisdiction to issue any distress warrant against the petitioner. Being aggrieved thereby, the petitioner company filed this Revisional Application which has been heard with notice to the opposite parties.

We uphold the decision of the court below that it had jurisdiction to issue the distress warrant in respect of a sum of Rs. 63,000/- and costs. The court of Small Causes, Calcutta which has been established under the Presidency Small Cause Courts Act, 1882 is undoubtedly a court of limited jurisdiction. Sir Asutosh Mookerjee, A.C.J. (as His Lordship then was) in the case of Hriday Nath Roy and Ors. v. Ram Chandra Barna Sarma and Ors., reported in 24 CWN 723 at page 732 interpreted the expression ''jurisdiction'' as the power of a court to hear" and determine a cause, to adjudicate or exercise any judicial power in relation to it, in other words, by jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The authority of the Court of Small Causes has been limited in respect of :

(a) territorial area, (b) pecuniary value and, (c) subject matter.

Under the Presidency Small Cause Courts Act, 1882 the Court of Small Causes has jurisdiction in respect of suits as provided in Chapter-IV. The procedure in suits have been prescribed by Chapter-V of the said Act. The Court of Small Causes, under Chapter-VIII, has been given power to order recovery of possession of immovable property from persons occupying property without leave. The said court has further power under Chapter-VIII to issue distress warrant.

It is significant that in respect of each of three matters, namely, suits, proceedings for recovery of possession and issue of distress, limits of the Court''s jurisdiction have been separately provided. The territorial jurisdiction in relation to all the three matters is identical, i.e., the limits for the time being of the original ordinary civil jurisdiction of the High Court. Still local limits in respect of suits has been provided for in section 17 of the said Act. Section 41 interalia mentions the territorial jurisdiction of the court in the matter of recovery of possession of immovable property. It is significant that u/s 18 of the Presidency Small Cause Counts Act the said Court cannot entertain a regular suit for recovery of possession of any immovable property. But the'' court under sectional of the said Act has been given jurisdiction to order recovery of possession of immovable property subject to the pecuiary limits mentioned in Chapter-VII of the Act.

The pecuiary jurisdiction of the court of Small Causes in respect of suits has been limited by section 17 of the Presidency Small Cause Courts Act. Section 41 of the said Act mentions the pecuiary limits of the said court''s jurisdiction to order recovery of possession of immoveable property. But Chapter-VIII of the said Act does not mention the maximum amount which can be recovered by distress from a tenant of the premises situated within the original jurisdiction of this Court. Having regard to the scheme of Chapter-VIII it would not be correct to apply sections 17 and 18 for determining whether a distress warrant for one year''s rent which exceeds Rs. 10000/- can be lawfully issued by the court of Small Causes. Section 18 confers jurisdiction upon the Court of Small Causes, inter-alia, to try suits mentioned therein. Section 19 sets out the classes of suits over which Small Causes Court should have no jurisdiction. Neither section 18 nor section 19 deal with or refer to proceedings either under Chapter-VII or under Chapter-VIII of the said Act. The limits of the jurisdiction of the Small Causes Court, Calcutta, both as regards the local extent and the subject matter have been set out in section 50 of the Act. Section 50 of the Act has provided that Chapter-VIII extend to every place within the local limits of the Ordinary Original Civil Jurisdiction of the High Court and excludes from the application :

(a) any rent due to the Government.

(b) any rent which has been due for more than 12 months before the application mentioned in section 53 of the Act. Section 53 of the said Act lays down : -

Any person claiming to be entitled to arrears of rent of any house or premises to which this Chapter extends or his duly constituted attorney, may apply to any Judge of the Small Causes- Court or to the Registrar of the Small Cause Court for such warrant ...

It is significant that neither section 50 nor section 53 of the Presidency Small Cause Courts Act, 1882 lay down any limitation as regards the maximum amount of arrears of rent for recovery of which application for distress warrant may be made. As already stated, limitations are only as regards the local extent and the maximum period'' of the arrears of rent which could be recovered by any person other than the Government. Thus, the landlords u/s 53 of the Act are entitled to recover from their tenants of houses and premises situated within the territorial jurisdiction of the Court of Small Causes Calcutta arrears of rent which are due and payable for not exceeding 12 months from the date of the filing of the application for issue of a distress warrant. Sections 50 and 53 read together only restrict the period of arrear rent which is recoverable by distress proceeding. But these provisions do not confine the power of the judge or the Registrar of the Court of Small Causes Calcutta to issue distress warrant upto any maximum amount.

The proceedings under Chapter-VIII of the Presidency Small Cause Courts Act, 1882 are not suits. Both in England and in India the term ''distress'' primarily connotes : -

A summary remedy by which a person is entitled without any legal process to take into his possession the personal chattels of another person to be held as a pleadge to compel the performance of a duty or the satisfaction of a debt or demand. By almost universal sanction, the term ''distress'' is now used to designate both the process of taking and the chattels taken" (vide Halsbury''s Laws of England, 4th Edition, Vol-XIII, Paragraph 201 at page 107).

In England the right of the landlord to distrain arrears of rent originally arose at common law out it is now regulated by different statute (vide paragraphs 202, 205 etc. of the aforesaid "book). Under chapter-VIII of the Precidency Small Cause Court Act, 1882 such right to distrain has been given to landlords other than the Government to recover from their tenants houses and premises situated within the local limits of the said Court, the rents winch have become due for 12 months before the making of the application u/s 53 of the said Act. It is significant that before issuing u/s 54 of the Act a distress warrant upon an application by a person claiming to be entitled to the arrears of rent, the Judge or the Registrar is not required to conduct any legal process, i.e., to adjudicate whether in fact the person who has applied u/s 53 is entitled to arrears of rent claimed by him. The Judge or the Registrar, as the case may be, is required to be satisfied that the application u/s 53 of the Presidency Small Cause Courts Act, 1882 is in the prescribed form and is supported by an affidavit or an affirmation. Therefore, we are unable to hold that an application under Sec. 53 should be considered as a proceeding equivalent to a suit.

Sankar Prasad Mitra, C.J. and A.K. Janah, J. in the case of Lall Krishna Mundra v. Fatick Chandra Hazra and Ors., reported in ILR 1973 (1) Calcutta 343 at page 349 up held the constitutional validity of Chapter-VIII of the Presidency Small Cause Courts, Act, 1882. In paragraph 20 of their Lordships'' judgment same observations have been made to the effect that u/s 54 of the said Act the Judge or the Registrar has a discretion to issue or not to issue a warrant. Therefore, the said power is a judicial one. These observations were made for deciding whether the provision was constitutionally valid. Their Lordships did not, however, further hold that the proceedings under Chapter-VIII of the said Act were suits, within the meaning of section- 17 of the Presidency Small Cause Courts Act. Therefore, our decision is not contrary to the reported decision in the aforesaid case.

The Supreme Court in the case of Babu Lal Vs. Hazari Lal Kishori Lal and Others, , while constructing section 22 of the Specific Relief Act, 1963 had pointed out that the term ''proceeding'' is a very comprehensive one and means a prescribed course of action for enforcing a legal right. In the context of section 22 of the said Act, the court held that execution proceedings were also covered by section 22 of the Specific Relief Act. The said decision has no relevancy for decinding whether an application u/s 33 of the said Act of 1882 should be considered as a suit within the meaning of section 18 of the Presidency Small Cause Courts Act, 1882, the whole scheme of the said Act of 1882 clearly indicates that the sections 18 and 19 of the said Act are inapplicable to Chapter-VIII of the said Act. Secondly, up to the stage of presentation of application u/s 53, issue of distress warrant u/s 54 and the seizure of movable property u/s 57 of the Act, the hearing and determining any cause does not arise. Only when an application u/s 60 is made by the debtor or any person alleging to be owner of the seized property, the court has to act judicially but in a summary manner to decide whether the warrant should be discharged or suspended and the articles seized ought to be released. Similarly, u/s 61 a claim of a stranger is to be similarly adjudicated. But even the proceedings u/s 60 or 61 of the Presidency Small Cause Courts Act, 1832 cannot be considered as regular suits. It is also very material that even when the Judge allows an application u/s 60, he merely discharges or suspends the warrant or releases the seized articles. Hs does not thereby necessarily adjudicate whether the rent claimed by the landlord is at all recoverable. u/s 61 of the Act the Judge is however required to adjudicate upon the claim of a stranger and therefore, unlike other provisions in Chapter-VIII section 61 inter alia, provides, "the Procedure in the Small Cause Court in cases under this section shall conform as far as may be to the procedure in an ordinary suit in such courts".

For the foregoing reasons, we hold that neither an application u/s 53 of the Presidency Small Cause Courts Act, 1832 nor a proceeding u/s 60 of the said Act for considering the claim of the tenant for the discharge or suspension of the warrant or release of the goods seized are subject to sections 17 and 18 of the said Act. Incidentally, we may record that at one stage of his submission, Mr. R.N. Mitra, learned advocate on behalf of the petitioner company, submitted that his client may be granted installments to pay the arrear rent covered by the distress warrant in suspension. Therefore, it appears that the petitioner tenant does not dispute that the rents in question were in arrears.

For the foregoing reasons, we reject this Revisional Application without any order as to costs.

Sadhanshu Sekhar Ganguly, J.

I agree.