Samar Shaw vs Sm. Fulkumari Dassi

S.P. Mitra, J.—This is a suit for a declaration that the Plaintiff is a Thika tenant in respect of the plot of land mentioned in the plaint and is entitled to retain possession of the land; a declaration, if necessary, that the order of the Court of Small Causes, Calcutta, dated the 16th February 1953, referred to in the plaint is not binding on the Plaintiff; an injunction restraining the Defendants, their servants and agents from executing the order, dated the 16th February 1953, and from interfering in any way with the Plaintiff''s possession of the land; a decree for Rs. 2,000 as compensation or damages and for costs and other reliefs.

The Plaintiff alleges that on the 5th January 1945 the Plaintiff purchased structures consisting of 12 kutcha rooms with chungi khola roof at premises No. 37/12, Beniatola Lane, Calcutta, now known as 37/12/1, Beniatola Lane. In 1945 the Plaintiff became a tenant in respect of a plot of land at the premises including the land on which the structures -stood under the then landlords Dutta Estates Ltd. at a rent of Rs. 28 per month. The tenancy was according to the English Calendar month. In August 1945, the Plaintiff demolished the structures purchased by him and erected pucca masonry structures on the land held by him as tenant. In 1947 Raghu Nath Dutta, since deceased, became the landlord of the land in place and stead of Dutta Estates Ltd. The Plaintiff thereupon became a tenant under Raghunath Dutt in respect of the plot of land at the rent of Rs. 28 per month. In 1950 the Defendant No. 1 Fulkumari became the landlady jointly with Raghunath, since deceased, of the plot of land and thereupon the Plaintiff became a tenant under Fulkumari and Raghunath at Rs. 28 per month. The rent was increased to Rs. 34 per month in 1950.

On the 20th November 1951, Fulkumari and Raghunath instituted proceedings in the Court of Small Causes, Calcutta, against the Plaintiff for recovery of possession of the land. The Plaintiff entered appearance in the proceedings and claimed protection under the Calcutta Thibet, Tenancy Act, 1949.

In March 1952, during the pendency of the proceedings Raghunath died intestate leaving him surviving the Defendants Nos. 2 to 9 as his heirs and legal representatives.

On the I6th February 1953, the Court of Small Causes, Calcutta, ordered the Plaintiff to deliver possession of the. plot of land to the Defendants. The Plaintiff thereupon filed an application u/s 38 of the Presidency Small Cause Courts Act but the application was dismissed for default on the 10th April 1953. Then the Plaintiff applied u/s 47 of the Act to the Court of Small Causes and further proceedings were ordered to be stayed on the Plaintiff furnishing a bond with, two sureties of Rs. 1,000 each on or before the 20th May 1953. The Plaintiff did not furnish the security but moved the Court of Small Causes u/s 151 of the CPC and the Calcutta Thika Tenancy (Amendment) Act, 1953, claiming the reliefs provided in that Act. This application was disposed of by an order, dated May 25, 1953, wherein the Court of Small Causes held that there could not be any doubt that if the matters were open and there could have been a fresh decision, the Plaintiff would have succeeded in proving that he was a Thika tenant but that relief could not be granted to him in an application u/s 151 of the Code of Civil Procedure. The Court further observed that the Plaintiff could in a proper suit get a declaration that he was a Thika tenant as defined in the amending Act of 1953. The Plaintiff came up in revision to this Court against the order, dated May 25, 1953, but the application in. revision u/s 115 of the CPC was dismissed.

The Plaintiff submits that he is a Thika tenant in respect of the land in suit and that the Defendants are not entitled to possession of the same. The Defendants are wrongfully trying to take possession pursuant to the order, dated the 16th February 1953. The Plaintiff submits that the obtaining of the order, dated the 16th February 1953, and the attempt to take possession of the land on the strength of the order amount to acts of trespass. The Plaintiff states that he is in any event entitled to retain possession of the land and the order, dated the 16th February 1953, is not binding on him. The Defendants are denying and are interested to deny the Plaintiff''s title to the land.

In the written statement the Defendants state that the whole premises are numbered as 37/12, Beniatola Lane. The structure belonging to the previous tenant were sold by public auction in execution of a decree, which were purchased by the Plaintiff. Neither the land nor the right of tenancy was sold or could have been sold. The Defendants deny that the Plaintiff demolished the kutcha structure purchased by him or that the Plaintiff erected pucca masonry structures on the land. Only necessary repairs were caused to be executed. There are no pucca masonry structures. The area of the entire plot is about 7 cottahs of which about 3 cottahs are in the occupation of the Plaintiff. The Defendants deny that the Plaintiff is a Thika tenant or that the, Defendants are not entitled to possession. The Defendants deny that they committed acts of trespass as alleged in the Plaintiff. The Defendants submit that the Plaintiff is not entitled to claim any relief under the provisions of the Calcutta Thika Tenancy Act, 1953. The Plaintiff''s claim is barred by res judicata or principles analogous thereto.

The following issues were raised:

Is the Plaintiff''s claim barred by res judicata or

principles analogous thereto?

Is the Plaintiff entitled to any relief under the provisions

of the Calcutta Thika Tenancy Act, 1953?

To what relief, if any, is the Plaintiff entitled?

The purchase of structures on the land is admitted by the Defendants. It is admitted further that the Plaintiff became a tenant in respect of the land under Fulkumari and Raghunath and during the pendency of the proceedings in the Court of Small Causes, Raghunath died intestate leaving him surviving the Defendants Nos. 2 to 9. The Plaintiff has deposed before me but it seems it would not be necessary to make any comments on his evidence having regard to the admissions in the written statements and the issues raised in the suit. It was not argued before me that the Plaintiff cannot claim to be a Thika tenant on his pleadings in this suit. The only contention of Learned Counsel for the Defendants was that the Plaintiff was not entitled to any relief under the proviso to Sub-section (2) of Section 1 of the Calcutta Thika Tenancy (Amendment) Act, 1953.

Appearing for the Plaintiff Mr. Chandra Banerjee refers to Section 1(2) of the Amendment Act, 1953, which is 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 a 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.

Mr. Banerjee relies on the following observations of the Judicial Committee in AIR 1930 54 (Privy Council) :

Now when a person is ''deemed to be'' something the only meaning possible "is that whereas he is not in reality that something the Act of Par "ligament requires him to be treated as if he were.

His contention is that the date of commencement of the Calcutta Thika Tenancy (Amendment) Ordinance, 1952, is October 21, 1952. The Amendment Act of 1953 came into force on the 14th March 1953. On the 20th November 1951, Fulkumari and Raghunath instituted proceedings in the Court of Small Causes, Calcutta, u/s 41 of the Presidency Small Cause Courts Act, 1882. On the 16th February 1953, an order for possession was passed by the Court of Small Gausses. When, therefore, the Ordinance came into operation the proceedings instituted by Fulkumari and Raghunath were pending before the Court of Small Causes. Although the order for possession was passed before the commencement of Amendment Act of 1953, Section 1(2) of the Amendment Act was applicable to the proceedings. It is in the premises to be deemed that the Court of Small Causes had no jurisdiction to pass the order. In other words the order must be deemed to be a nullity.

Mr. A.N. Bose for the Defendants first of all argued that the present suit was filed on the 4th August 1954. It was not pending on the 21st October 1952, which was the date of the commencement of the Ordinance. The Amendment Act does not apply to this suit at all. In the circumstances, the order for possession passed by the Court of Small Causes is binding on the Plaintiff. I do not accept this contention of Mr. Bose. The whole point is whether the Plaintiff is entitled to any relief as a Thika tenant in respect of the order for possession passed in a proceeding which was pending on the date of the commencement of the Ordinance.

The next contention of Mr. Bose is that Section 1(2) of the Amendment Act, 1953, must be read with Section 8 of that Act which provides that Sections 28 and 29 of the Calcutta Thika Tenancy Act, 1949, shall be omitted.

Section 28 provided for varying or rescinding decrees or orders for recovery of possession against a Thika tenant made before the date of commencement of the 1949 Act by the Court which passed the decree or order if the landlord had not already recovered possession from the Thika tenant by the execution of such decree or order. Section 29 made provisions as to the Application of the 1949 Act to all suits and proceedings including proceedings in execution for ejectment of a Thika tenant which were pending at the date of commencement of the Act. According to Mr. Base provisions have been made in the Amendment Act of 1953 regarding proceedings pending on the date of commencement of the Ordinance but the withdrawal of Section 28 of the 1949 Act without any corresponding provisions indicates that the intention of the legislature was to take away the power of the Court to rescind or vary decrees or orders.

Mr. Bose has referred to the well-known principles of construction of statutes discussed in Ex parte Walton. (1881) 17 Ch. D. 746, 751 and 756 namely (1) "that in constructing Wills, and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some, absurdity, or some repugnance or in inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the word may be modified so as to avoid that absurdity and inconsistency, but no further" and (2) that "when a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is: to be resorted to."

Mr. Bose has also referred to the decision of Eenu Pada Mukherjee, J. in Dliirendra Nath Ganguli and Ors. v. Raghuhir Singh and Ors. (1956) 99 C.L.J. 126. In this case the Respondents held some lands under the Appellants as Thika tenants. The Appellants got a decree for ejectment on the 17th January 1949. The Calcutta Thika Tenancy Act, 1949, came into force on the 28th February 1949. Execution was started by the decree-holder on the 19th September 1949, and an execution case was pending on the 21st October 1952, when the Ordinance of 1952 came into operation and was also pending on the 14th March 1953, when the Amendment Act of 1953 came into force. During the continuance on the Ordinance the tenants made an application u/s 5(2) of the Ordinance. This application was dismissed on the 29th April 1953. After dismissal execution of the decree proceeded but the Respondents raised an objection u/s 47 of the CPC read with the Thika Tenancy Act of 1949 as amended by the Act of 1953 contending that the decree not being in conformity with the Act is not executable. This objection was upheld by the Lower Appellate Court. The decree-holders then preferred an appeal to this Court. At page 129 appear the following observations of Renupada Mukherjee, J.:

Section 1(2) of the Amending Act of 1953 lays down that the provisions of "the Calcutta Thika Tenancy Act of 1949 would apply and be deemed "to have always applied to all suits, appeals and pending proceedings "not as those provisions originally were but as amended by the Act "of 1953. One such important amendment is the omission of 28 of "the original Act of 1949 from the statute. That was the only section "under which a decree passed prior to the Act of 1949 could be rescinded "or varied if it was not in conformity with the provisions of the Act "of 1949. The withdrawal of the above section clearly takes away "the right of the tenant to have those decrees varied or reversed which "have been passed prior to the Act of 1949."

"If the original Act of 1949, the Amending Ordinance of 1952 and the Amending "Act of 1953 be read side by "side and compared with one another, "then there will remain little room for doubt that decrees passed prior "to the Amending Act of 1953 cannot now be touched except within, "the limited scope provided for in Section 9 of the Amending Act of 1953....

The facts of the present case are different from the facts before Renu Pada Mukherjee, J. Moreover, His Lordship''s judgment was delivered on December 14, 1956. There is a judgment of a Division Bench delivered on March 15, 1966 in Ajit Kumar Pal v. Sadhan Chandra Pal, (1956) 60 C.W.N. 567. The suit for ejectment in this case was brought by the landlord on the 8th August 1946, on the averment that the Defendant was a monthly tenant and that tenancy had been determined by 15 days'' notice to quit. The suit was decreed on the 4th September 1948, before the commencement of the Thika Tenancy Act of 1949. The tenant preferred an appeal. The District Judge held that the notice to quit was insufficient and on the 17th April 1950, allowed the appeal. The landlord preferred a second appeal to this Court on the 29th June 1950. The second appeal was pending before this Court on the 21st October 1952 when the Ordinance of 1952 came into force. Section 1(2) of the Amending Act of 1953 came up for consideration in this case. Guha Roy, J. was of opinion that Section 1(2) of the Amending Act should not be literally construed. What the legislature must be taken to have meant by the proviso to Section 1(2) was that only such provisions of the Act which have! not the result of destroying a cause of action that had already accrued to a landlord should be given effect to. An appeal was preferred under Clause 15 of the Letters Patent which was heard by Das Gupta and Guha, JJ. Delivering judgment Das Gupta, J, observes as follows:

The question, therefore, is whether the legislature has, in the present case "clearly intended that the vested right would be taken away. In my "judgment this is the necessary inescapable conclusion if the natural "meaning is given to the words used. Indeed I can see no sense in saying "that the provisions of the Act shall apply to all pending appeals "unless thereby the legislature wanted to say that rights which are in "Company insistent with these provisions disappeared. It is only fair to take "the legislature to have meant what it says. And when it does say that "the provisions of the Calcutta Thika Tenancy Act, 1949, as amended "by the Calcutta Thika Tenancy (Amendment) Aet,1943, shall, subject "to the provisions of Section 9, also apply and be deemed to have "always applied to all suits, appeals and proceedings that are pending, "the Court will give effect to such provisions. If it is the intention of "the legislature that certain provisions, namely, provisions which affect "a right that had already accrued, could not apply, it was to be "expected that the legislature should say so."

"As the Courts have no right to take away from a party the benefit of a "provision of law which the legislature has extended to him, I "consider myself bound to hold that even though a provision of the "Act may have the result of destroying a vested right in any part, "the provisions must be enforced."

Das Gupta, J. held that the Plaintiff could not succeed in this case. I respectfully agree with these observations so far as they relate to the interpretation of the relevant provisions of the Acts and the Ordinance in question.

It was also held by P.N. Mookerjee, and Sarkar, JJ. In Panchkari v. Promode Kishore (1957) 61 C.W.N. 803, that the language of the proviso to Sub-section (2) of Section 1 was sufficiently wide to attract decrees and orders passed before the commencement of the Act of 1 and 49 in respect of which any proceeding might have been pending on the date of commencement of the Ordinance of 1952 and to make the provisions of the Act of 1949 as amended by the Act of 1958, applicable thereto.

Replying to the argument of Mr. Bose, Mr. Banerjee urged that Section 28 of the 1949 Act applied to decreets or orders passed before the commencement of that Act. Then Section 5(2) of the Ordinance of 1952 made provision for relief to be given to a Thika tenant in respect of a decree or order for possession passed between the commencement of the 1949 Act and of the Ordinance provided that possession had not been recovered. An application Hinder Section 5(2) had to be made within three months from the commencement of the Ordinance. By Section 9 of the Amendment Act of 1953 proceedings commenced under; Section 5(2) of the Ordinance were saved and it was provided that they would be continued as if Sub-sections (2) and (4) of Section 5 of the Ordinance and the explanation to that section were in force. By reason of the provisions of Section 1(2) of the Amending Act which brought within its purview all suits, appeals and proceedings pending on the date of the commencement of the Ordinance it was no longer necessary to keep either Section 28 or Section 29 of the 1949 Act alive.

In my judgment on the facts of the present case most of the contentions of Mr. Banerjee must be upheld. To my mind a literal construction of the proviso to Sub-section (2) of Section 1 of the Amending Act of 1953 does not lead to ''some absurdity'' or ''some repugnance'' or ''inconsistency'' with the rest of the Act. The legislature clearly intended that the Calcutta Thika Tenancy Act, 1949, as amended by the Amending Act of 1953, shall apply and be deemed always to have applied to all suits, appeals and proceedings pending on the date of commencement of the Ordinance of 1952, that is to say, on the 21st October 1952. Sections 1 and 9 of the Amending Act of 1953, it seems to me were enacted to serve the primary or principal objects of Sections 28 and 29 of the 1949 Act. The power of the Court, which passed a decree or order for possession, to vary or rescind the decree or order may have been taken away: there are however, conflicting decisions of this Court as to proceeding''s u/s 28 pending of the date of commencement of the Ordinance. But that does not mean that a Thika tenant would be debarred from stating that the decree or order is no longer binding on him in an appropriate suit, appeal or proceeding. The effect of this construction may be that the 1949 Act as amended by the 1953 Act would apply to a case where, for example, a suit was pending on the 21st October 1952, a decree for possession had been obtained thereafter, and in fact, possession had been recovered before the 14th March 1953, when the Amending Act came into force. In the 1949 Act as well as in the Ordinance of 1952 the legislature made specific provisions in Section 28 of the Act and Section 5(2) of the Ordinance that the reliefs contemplated would not he extended to a Thika tenants if possession had already been recovered; hut no such provision has been made in the Amending Act of 1953. This shows that the intention of the legislature was that relief should be given to a Thika tenant even when possession had been obtained between the 21st October 1952, and the 14th March 1953. If that was not the intention the legislature should have said SO as it did in the Act of 1949 and the Ordinance of 1952, while passing in such wide terms with retrospective effect the proviso to Section 1(2) of the Amending Act of 1953 and at the same time omitting the provisions of Section 28 of the 1949 Act. Ordinarily the Court does not look into proceedings of the legislature in interpreting statutes except in cases of difficulties and ambiguities. I find in construing this very proviso P.N. Mookerjee and Sen, JJ. in Deorajin Debi v. Satyadhan (1953) 58 C.W.N. 65, took into consideration extracts from the speech of the then Minister-in-charge of the Land and Land Revenue Department on this particular proviso. It was clearly stated on the floor of the House that all cases were protected except perhaps the case in which decrees were made prior to the commencement of the Act of 1949 and in which appeals or proceedings were not pending on the date of the commencement of the Ordinance. It is Well known that the words of a remedial statute must be construed so far as they reasonably admit so ass to secure that the relief contemplated by the statute is not denied to the class intended to be relieved: Thakur Raghuraj v. Harkishen, (1943) 48 C.W.N. 439 P.C.. It is not necessary however to decide this particular point for the purposes of this suit because in the present case possession has not yet been recovered. In my opinion, therefore, the Plaintiff in the instant case is entitled to the benefits and advantages conferred on a Thika tenant by the Calcutta Thika Tenancy Act, 1949, as amended by the Act of 1953 and the order for possession passed by the Court of Small Causes must be deemed to have been passed "without jurisdiction and, as such a nullity.

I shall now deal with the contention of the Defendants that the present suit is: barred by res judicata or principles analogous thereto. Mr. Banerjee submits that proceedings taken by a landlord in the Court of Small Causes under Chapter VII of the Presidency Small Cause Courts Act in order to eject his tenant are not a suit and the order of ejectment obtained in such proceedings is not a decree: Such an order is not a final adjudication. An order passed under Chapter VII of the Act is not a decision or order on the question of title. In a subsequent suit against an order under that chapter there is no necessity to alter or set aside any such decision or order: (Mir) Ryder Ali Sahib v. Amiruddin Sahib and Ors. AIR [1929] Mad. 69, and Madhabprasad Kalkaprasad Nigam v. S.G. Chandavarkar A. I. R. [1949] Bom. 104. Indeed Section 49 of the Presidency Small Cause Courts Act lays down that even recovery of possession of any immovable property under Chapter VII of the Act shall be no bar to the institution of a suit in the High Court for trying the title thereto. There can, therefore, in any event, be no question of applying the principle of res judicata or principles analogous thereto to the present suit. I accept these arguments of the Learned Counsel for the Plaintiff.

The answers to the Issues are as follows:

No,

Yes.

In the result, therefore, there will be a declaration that the Plaintiff is a Thika tenant in respect of the plot of land described in the plaint; a declaration that the order of the Court of Small Causes, Calcutta, dated the 16th February 1953, referred to in the plaint is not binding upon the Plaintiff; and an injunction restraining the Defendants, their servants and agents from executing the order of the Court of Small Causes, Calcutta, dated February 16, 1953. The Defendants would pay to the Plaintiff the costs of this suit.