Peari Kumari Bewa vs Nalinaksha Ghosh

Mookerjee, J.—This is a petition for revision of an order passed by the Munsif at Sealdah holding that Section 28 of the Calcutta Thika Tenancy Act (West Bengal Act II of 1949) is not attracted if the decree in ejectment had been one by consent of the parties. The Plaintiffs opposite parties had brought a suit against the Defendant Petitioner for ejectment on the ground that the said Defendant was a monthly tenant at will in respect of a plot of jand, such tenancy having been determined by a notice to quit. Though a written statement was filed contesting the Plaintiffs'' claim, a decree in ejectment was passed on February 16, 1949, on confession of judgment. The Defendant was directed to vacate the land in suit within one year from the date of the decree failing which possession would be delivered through court in execution of the decree. Within a few days after the Calcutta Thika Tenancy Act came into force on February 28, 1949, the tenant-Defendant thereafter filed an application u/s 28 of the said Act stating inter alia that on the day the Defendant had confessed judgment she felt helpless under the then existing law. As she had not yet been actually ejected from the premises she claimed that she was protected under the provisions of the Calcutta Thika Tenancy Act, and the decree in ejectment could not have been passed on February 16, 1949, had Act II of 1949 been then in force. The landlords opposite parties contended that the decree being one passed upon an agreement between the parties, before the Calcutta Thika Tenancy Act had come into force, the present application was not maintainable in law. Before the learned munsif both the parties agreed that a consent decree could not be rescinded u/s 28 of the said Act. It is against this order dismissing the tenant''s application u/s 28 of the Act that the present Rule had been obtained.

The relevant portion of Section 28 of the Calcutta Thika Tenancy Act, 1949, is in the following terms:

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 this 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 Sub-section (27), rescind or vary the decree or order in such manner as the court may think fit for the purpose of giving effect to such provision.

The expression "decree or order" appearing in Section 28 of the Calcutta Thika Tenancy Act makes no distinction between a decree or order whether passed after contest or otherwise. Before the learned munsif, the parties agreed that the provisions contained in this section were not attracted in the case of consent orders or decrees; so it was unnecessary for the court to consider, whether the tenant was a thika, tenant under the Act. We have, however, now to consider whether even if the tenant were a thika tenant, is she entitled to get the benefit u/s 28 of the Act?

Decrees may be passed by a court either after hearing the respective contention of the different parties and on adjudication of the points in issue by the court concerned, or may be an ex forte decree or order passed by the court after hearing one of the parties only, the other party not having chosen to be represented before the court. In the latter case also, there is an adjudication by the court on the point which arises for decision, though it may be in the absence of one of the parties during the hearing.

In the case of a consent decree, is there an adjudication by the court on any point whatsoever, and if not, is that decree of a nature different from either a contested or an ex parte decree? As to the nature of a consent decree, reference may be made to the observations by this Court in Bharat Ramanuja Das Mohant v. Sarat Kamini Dasi (1921) 34 C.L.J. 96. It was observed:

If a suit is not collusive, it cannot be maintained that, though originally contentious, it ceases to be contentious because it is compromised by the act of the parties.

Reliance was placed on the observations of the Full Bench of the Madras High Court in Annamalai v. Malayandi (1905) ILR 29 Mad. 426, and on the observations of Chancellor Searls of the Supreme Court of California in Patridge v. Shephard (1886) 71 Cali. 470 : 13 Pacific 480-

We know of no good reason why a judgment entered by consent of parties in a cause in which the court has jurisdiction over the subject-matter and over the parties, is less efficacious than if entered after a trial of the suit. It may be impeached like any other judicial record by evidence of a want of jurisdiction in the court rendering it, by showing collusion between the parties or by proof of fraud on the part of the party offering the record.

The substance of the reasons assigned for coming to the conclusion that a decree given in accordance with the terms which have been arrived at between the parties does not prevent the decrees from being a formal expression by the court of adjudication on a right claimed or defence set up, conclusively determining the rights of the parties with regard to all or any of the matters in controversy between the parties in the suit was stated to be that-

a decree is nonetheless a decree as defined by the Code of Civil Procedure, because it is based on a compromise, and the legal effects of the decree contemplated by Order 23, Rule 2, Code of Civil Procedure, do not differ from the legal effects of a decree where the suit has been fought to the end. When the court makes a decree by consent, it performs not a ministerial but a judicial function ; the court must be satisfied that the agreement of compromise is lawful, and although the court must record the entire agreement of compromise, it can pass a decree in accordance therewith only in so far as it relates to the suit.

In recording the compromise, the court has to discharge a judicial function as it is only a legal compromise which can be given effect to. The court is required to examine the legal aspect of the terms which are agreed upon by the parties and are placed before the court for being recorded in a formal decree. There is no difference in the eye of the law between a decree passed on compromise and a decree which is a formal expression of the court''s interpretation of the rights of the parties.

In the present case, as has been stated already, a written statement was filed, the trial was proceeding, and at that stage the Defendant confessed judgment. So the suit was converted from a contentious suit into a non-contentious one only because the Defendant found or was advised that there was no ground for continuing the defence. Moreover, as indicated already, the court has to pass a judicial order after adjudication for determining the rights of the parties before a decree can be drawn up.

There is no indication in Section 28 of the Calcutta Thika Tenancy Act under which a decree or order referred to in the first line of that section was limited in any manner whatsoever. Had there been any restriction imposed by which only particular types of decree or order were made revisable u/s 28 of the said Act, there could have been some force in the argument that the Legislature intended to limit the powers of the court to vary or modify a decree already passed only if such a decree or order came within the description of particular types of decree. Such restrictions may be found in other pieces of legislation where jurisdiction is being given So court to vary decrees only of a particular type. For instance in Sub-section (2) of Section 18 of the "West Bengal Premises Rent Control (Temporary Provisions) Act (XVII of 1950), as it stood before the amendment by "West Bengal Act LXII of 1950, it was provided:

Where any decree for recovery of possession of any premises has been made on the ground of default in payment of arrears of rent under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948,.... the tenant may apply to the trial court....for vacating the decree for ejectment against him.

It is open to argument that under this section, only such decrees as had been passed for possession of any premises on the ground of default in payment of arrears of rent under the 1948 Rent Control Act were open to modification or variation. It is incontestable that in this case, the Legislature intended the court to be vested with jurisdiction to vary, rescind or modify not any decree for recovery of possession but only of those specifically mentioned.

Section 18 of the "West Bengal Premises Rent Control Act, 1950, substituted Section 18 of the 1948 Act which, however, was in general terms as we have in Section 28 of the Calcutta Thika Tenancy Act.

Section 18 of 1948 Act provided:

Where any decree or order for the recovery of possession of any premises has been made, before the date of the commencement of this Act,....the court by which the decree or order was made may....rescind or vary the decree or order.

In view of the general terms in which this section was worded, Das J. held in Haripada Sen v. Santosh Kumar Choudhuri (1949) 53 C.W.N. 905 that a consent decree came within the purview of that section of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948. It was pointed out that the section did not require a decree or order mentioned therein to be limited to one passed on consent or ex parte.

Reference may also be made to the decision of a Division Bench of this Court in Haji Mohammad Ekramal Hague v. Rehati Bhusan Mukherjee (1947) 53 C.W.N. 859, which was a case arising out of the Calcutta House Rent Control Order, 1943, as amended in August, 1945, para. 9B(3) of the said Order provided:

Where any decree or order for the recovery of possession of any house has been made on or before the 29th day of August. 1945, on the ground that the tenant in possession of such house is not entitled to the benefit of para. 9 by reason of his non-compliance with the provisions of this Order as to the payment or deposit of rent due by him in respect of such house....has not been recovered from the tenant.

(b) the court by which the decree or order was made shall set aside the decree or order if....

The court on this occasion interpreted the provisions contained in para. 9B(3) as including a consent decree though the words strictly construed are inappropriate to consent decrees. It was observed that the expressions were general enough to include such decrees within the ambit of the sub-paragraph according to the underlying spirit of the Rent Control Order which should not be sacrificed to a too literal and strict compliance with the words used. Two earlier decisions in Sm. Parbati Debi v. Dr. S.N. Sen (1945) 50 C.W.N. 242, and Sm. Kiran Sashi Dassee v. Hirendra Nath De (1946) 50 C. W. N. 245, by single Judges on the Original Side of this Court were dissented from. It is not necessary for our present purpose to consider whether in the presence of certain restrictive words as appearing in para. 9B(3) of the Order, the interpretation put on the same can be supported. As has been pointed out already, the expression used in Section 28 of the Calcutta Thika Tenancy Act now under our consideration, there are no words of limitation or restriction. They are of a general nature. The court will not be justified in importing restrictive clauses so as to limit the application of the principles enunciated to certain types of decrees only.

Our attention was drawn to Panchanon Ghosh v. Satya Bandhv Mukherjee (1950) 54 C.W.N. 541, where Roxburgh J. held tenantively that Section 28 of the Calcutta Thika Tenancy Act has no bearing on the question of rescinding of pre-Act decrees. It has been further observed that the rescinding of decrees under the Calcutta Thika Tenancy Act attracts the principle that a consent decree would only be set aside where either the decree or the proceedings in the suit showed that the real ground on which the landlord sought eviction was non-payment of rent by the tenant, i.e., where the tenant agreed to a decree being on the ground which was specifically not a sufficient ground under the new Act if the arrears had been paid up. We have already considered the question with reference to the nature of consent decrees and have given our reason for holding that Section 28 of the Calcutta Thika Tenancy Act attracts all kinds of decrees including consent decrees.

We have to consider in this connection the implication of Section 31 of the Calcutta Thika Tenancy Act. Section 31 provides:

Nothing in any contract between a landlord and a thika tenant made after the commencement of this Act shall take away or limit the rights of such tenant as provided by this Act, and any contract which is made in contravention of or which is inconsistent with any of the provisions of this Act shall be void and without effect to the extent of such contravention or inconsistency.

This section specifically applies to contracts made after the commencement of this Act. It does not affect any contract made before the Act came into force. It may be argued that the intention of the Legislature to make provisions of the Act applicable to pre-Act contracts may be gathered from the restrictive clause appearing in Section 31 of the Act. As this section limits the jurisdiction of the court only to post-Act contracts, all pre-Act contracts were left untouched unless there be clear provisions in the Act by which retrospective effect was intended to be given so as to include such pre-Act contracts. It is not necessary for us to consider in detail the effect of Section 31 of the Calcutta Thika Tenancy Act on the facts of the present case and on the nature of the so-called consent decree. There is no doubt a contract between the parties by which a consent decree is passed, but the contract between the parties merges in a decree of the court, and it is not the contract which alone is to be modified if Section 28 of the Act is to be attracted. There is no question here of effecting a pre-Act contract on the present occasion.

We may, moreover, refer to the order which was passed on February 16, 1949, by which the decree in question was passed. Order No. 19, dated February 16, 1949, so far as relevent for the present purpose was as follows:

Parties ready. Case taken up. At this stage Defendant''s lawyer submits that the Defendant admits Plaintiff''s claim and prays for time for vacating the suit land. P.W. 1 Raj Narayan Dhubey examined. Heard pleaders. Case taken up for hearing on admission by the Defendant.

ORDERED

Claim proved on admission. Suit is decreed with costs ex parte on admission. Defendant to vacate the suit land within one year from this date....

There was no question in this particular case of any contract between the parties, but the Defendant found that there was no use continuing the defence and confessed judgment. So, irrespective of the provisions contained in Section 31 of the Calcutta Thika Tenancy Act, the order under which the decree was passed was an order, and the decree that was passed was a decree which could be modified or rescinded u/s 28 of the Calcutta Thika Tenancy Act.

The result, therefore, is that this Rule is made absolute. The order passed by the learned munsif u/s 28 of the Calcutta Thika Tenancy Act is set aside. The question whether the tenant is one who can come under the provisions of the Calcutta Thika Tenancy Act or not will be taken up for consideration, and if she is found to be one governed by the provisions of that Act, the court will proceed to apply the provisions of Section 28 of the Act in giving proper relief.

In the circumstances of this case, there will be no order as to costs in this Court.

Guha, J.

I agree.