Ranjit Kumar Saha vs Sudhir Kumar Dey

Chittatosh Mookerjee, C.J.—Let C.R. No. 2057 of 1982 be heard separately.

The petitioner as the plaintiff had instituted in the 6th Court of the learned Munsif at Alipore against the respective opposite parties as defendants, two suits, inter-alia, for their eviction from the premises described in the schedule of the respective plaint, of the said two suits. In paragraph 1 of the plaint of the each suit he claimed that he was a thika tenant and alleged that the defendants of the said two suits were monthly tenants under him. We need not at this stage set out the rest of the allegations as made in the plaint upon which the petitioner had, inter-alia, prayed for recovery of possession and also mesns profits. By the orders complained of, in these two revisional applications, the learned Munsif, 6th Court, Alipore, has ordered that the two suits would abate u/s 19 of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981. In our view, the said orders are clearly erroneous on the face of the record and the learned Munsif has acted beyond his jurisdiction by ordering that the suits would abate. u/s 19 of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 all proceedings including appeals and all proceedings of in execution of orders passed in proceedings including appeals under the Calcutta Thika Tenancy Act, 1949, pending on the 19th day of July, 1978, for the ejectment of thika tenants and Bharatias shall stand abated with effect from the 19th day of July, 1978, as if such proceedings, appeals or execution proceedings had never been made. The two suits brought by the plaintiff petitioner against the defendant opposite parties were pending before the Civil Court and were not proceedings under the Calcutta Thika Tenancy Act, 1949. Therefore, Section 19 of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 was in applicable to the instant suits. The learned Munsif accordingly was not entitled to record abatement of the two suits u/s 19 of the said Acquisition and Regulation Act of 1981. It is, however, not for this Court to pronounce whether or not the said suits ought to be decreed or dismissed inasmuch as the suits are still awaiting final disposal in accordance with law. Undoubtedly, it is open to the defendant opposite parties to contest the said suits on such grounds which may be open to them under the law. The view taken by us is supported by the pronouncement of the Division Bench in the case of (1) Mrs. Qaiser Jahan v. Mohamman Yawoob 1982 (2) C.L.J. 143. In his judgment, Anil Kumar Sen J. (as he then was) had repelled a similar submission that the suit before the Civil Court was liable to abate by virtue of the mandate incorporated in Section 19 of the aforesaid Act. We respectfully adopt the ratio of the said reported judgment. Mr. Bhattacharya, appearing on behalf of the petitioner, has also placed the decision of (2) Sm. Kamala Bala Nath and Ors. v. Balabhadra Jhah 1984 (2) C.H.N. 203, which was also decided in the same line. We respectfully differ from the Single Bench decision of Satish Chandra C.J., (as he then was,) in Civil Rule No. 3727 of 1982 disposed of on the 30th April, 1986. With respect, the learned Chief Justice in his short judgment did not record any reason why a suit for ejectment against a bharatia before the Civil Court was directly covered by Section 19 of the said Act and was liable to abate. The learned Chief Justice, with respect, was not right when he had observed that relief against the bharatia would be granted only by the Controller. Therefore, the decision in Civil Rule No. 3727 of 1982 cannot be considered as a good law.

We are satisfied that sufficient cause has been made out for condoning the delay in filling the revisional application in Civil Rule No. 739 of 1984 in this Court. Due to bona fide mistake in the matter of obtaining certified copy in time, the revisional application in the said case was filed beyond 90 days. Therefore, the said delay should condoned. Further, the order regarding abatement in the case was without jurisdiction and, therefore, if necessary, this Court might have suo-motu interfered with the Trial Court''s orders regarding abatement of the suit. Therefore, the delay is condoned.

For the foregoing reasons, we make these two Rules absolute and set aside the orders complained of. The suits are restored to file. The learned Munsif is directed to expeditiously dispose of these two suits in accordance with law. It would be open to both parties to raise such questions of law and fact which they may establish before the Trial Court. We express no opinion on the merit of the two suits, There will be no order to costs.

Records, if received, be expeditiously sent down to the Court below.

Padma Khastgir, J.

I agree