Sasanka Sekhar Bose vs Debendra Nath Sarkar

P.N. Mookerjee, J.—This is the Defendant''s second appeal, arising out of a suit for ejectment. The suit premises comprises Municipal Premises No. 9/C Kashi Mitter Lane, Calcutta. The Defendant was the tenant of the said premises under the Plaintiff at a monthly rent of Rs. 66 according to the English calendar. That tenancy appears to have been determined by the service of an appropriate notice to quit with effect from the expiry of the month of December, 1954. On January 20, 1955, the Plaintiff instituted the present suit for eviction of the Defendant from the suit premises upon the allegation inter alia, that, by reason of default in the payment of rent, the Defendant was not entitled to any protection under the Rent Control Act of 1950, which was then in force. In accordance with the provisions of that Act (vide Section 16), the suit appears to have been instituted in the Court of Small Causes, Calcutta. It was registered as Ejectment Suit No. 155 of 1955. The suit was contested by the Defendant and, in the written defence, it was sought to be resisted on, inter alia, the following grounds, namely. that the notice served was neither legal nor valid nor sufficient and that he (the Defendant) was not a defaulter so as to fall within the mischief of the Act and forfeit its protection. These defences have been concurrently overruled by the two Courts below and they have not been pressed in this Court, as, obviously, they have no substance. A new defence, however, was put forward during argument in the trial court. and repeated in the lower appellate court and in this Court, too, as the only point in support of the appeal.

It is this new defence which requires careful consideration and, upon which, practically speaking, hangs the fate of this appeal. That defence arose because of certain changes of circumstances during the pendency of the suit in the trial court. The suit, as we have said above, was filed on January 20. 1955. when the Rent Control Act of 1950 [The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950] was in force. The suit, however, was not heard until July 21. 1956. In the meantime, on March 31, 1956, the above Rent Control Act of 1950 was repealed by the new Act of 1956 which replaced it. On the day, therefore, that the suit was heard the said Act of 1950 was no longer there and, with its repeal, Section 16 of it, under which the trial court had or could have jurisdiction in the matter, was also gone and, as under the authority of the Special Bench decision of this Court in Tarak Chandra Mukherjee and Others Vs. Ratan Lal Ghosal and Others, , the new Act of 1956 (the West Bengal Premises Tenancy Act, 1956) which effected the above repeal, contained no effective saving clause for the purpose and the saving Section 8 of the Bengal General Clauses Act was also inapplicable by reason of the admitted fact that the 1950 Act was a temporary Act, it was contended by the Defendant before the learned trial Judge at the hearing of the suit on July 21, 1956, that he had no jurisdiction to proceed or deal with the said suit (which according to the Defendant, was bound to fail by reason of loss of jurisdiction of the trial court over the same) and it could not, in any event, be decreed by him. This objection was overruled by the learned trial Judge upon the view that Section 16 of the aforesaid Rent Control Act of 1950 was not a jurisdiction section at all as the Calcutta Small Causes Court''s jurisdiction in the matter was already there u/s 41 of the Presidency Small Causes Courts Act and Section 16 of the Rent Control Act of 1950, merely laid down the procedure for trial of suits, like the present. He held, accordingly, that, at the worst, the suit had to be decided under the said Section 41 of the Presidency Small Causes Courts Act. In the above view, the learned trial Judge decreed the Plaintiff''s suit. From this decree, the Defendant took an appeal to the appellate authority in the Court'' of Small Causes, Calcutta, but the learned Judges, constituting the said appellate Bench, dismissed his appeal, holding, inter alia, that the retrospective amendment of the West Bengal Premises Tenancy Act, 1956 [vide the West Bengal Premises Tenancy (Amendment) Act, 1956-W. B. Act No. '' XVIII of 1956] by which Section 40(5) was introduced on July 27, 1956, had the effect of maintaining the jurisdiction of the trial court over the instant suit throughout and, accordingly, the decree, passed by the learned trial Judge, should be affirmed. Thereupon, the present second Appeal was filed by the Defendant.

Before us, Mr. Sen Gupta, has raised three points in support of the appeal. He has contended, first, that, at the date of the amendment in question, the instant suit was not pending and, therefore, it was not a pending proceeding not at any rate, within the meaning of the new Section 40(2) of the West Bengal Premises Tenancy Act, 1956, and, therefore, the said Section 40(2), purporting to save pending proceedings, would not apply to it. In support of this particular contention, Mr. Sen Gupta, urged, -and urged very strongly,-that the making or signing of the decree is no part of the proceeding,-at least no part of the judicial proceeding but merely an administrative act,-and so the suit (proceeding) must be held to have terminated in the trial Court on July 21, 1956, when the judgment was delivered] by the learned Trial Judge, and there was, accordingly, no pending suit or proceeding on July 27, 1956, when the amendment in question came into force. We do not, however, think that the above contention is correct or should be accepted. The making of the decree (including the signing thereof) is, obviously, part of the judicial process to bring the suit (proceeding) to an end. The duty to follow up the judgment by an. appropriate decree, which is the final, though formal, expression of the adjudication, is of the Judge (vide Section 33, read with Order XX, Rule 7, of the Code of Civil Procedure) and this is a judicial duty which, if not done or not done properly, is revisable by this Court. Under the aforesaid Order XX, Rule 7, of the Code of Civil Procedure, the Judge has to satisfy himself that the decree is in conformity with the judgment (vide Order XX, Rule 6) before signing the same. This is, certainly, exercising judicial function, though actual preparation of the decree may well be mere office or administrative work. The suit, indeed cannot be said to have ended unless and until the decree has been signed and the signing of the decree is, in law, the last step,-the last Judicial step,-in the suit, which terminates it. Until then, therefore, the suit remains pending. In the above view, we reject Mr. Sen Gupta''s first submission, set out hereinbefore.

While, on the above, we just add that, from a general standpoint also, a similar conclusion will be well justified. A cause is said to be pending in a court of justice when any proceeding can be taken in it (Per Jessel. M.R. in In re: Clagatt''s Estate, Fordhan v. Clagett 20 Ch.D. 637, 653. That is the test and the classic definition of ''"pending" and it may well, be satisfied so long as the decree is not drawn up as, until then, an application may be made and a proceeding taken or started in the suit itself, for at least, drawing up the decree and, as, in the suit, the Plaintiff''s prayer is for a decree, the granting of the decree may well be regarded as a matter in issue (or the decree may well be regarded as a matter in issue) or to be dealt with therein, so as to satisfy the definition given in Stroud''s Judicial Dictionary, Third Edition, Vol. 3, p. 2141. See also Sail v. Cooper (1880) 16 Ch. D 544, 551, where a "cause" was held to be pending even after final judgment so long as such judgment remained unsatisfied (per again Jessel, M.R.)

Mr. Sen Gupta next contended that all steps, taken in the suit, from after March 30, 1956, until July 27, 1956, were invalid as, during that period, the trial court had no jurisdiction in the matter. This, however, is expressly answered by the amended Section 40(2) of the new Act of 1956, when it speaks of continuance of the said suit (proceeding), as if the earlier Act of 1950 [West Bengal Premises Rent Control (Temporary Provisions) Act, 1950] had been in force, thus obviously, intending to validate all steps, taken in the meantime, unless they were invalid under the said earlier Act.

Lastly, Mr. Sea Gupta contended that the learned trial Judge clearly purported to pass an order u/s 41 of the Presidency Small Causes Courts Act, which he could not do in the instant case as the said section was clearly confined to the special type of proceedings there under, and not applicable to ordinary suits for ejectment like the present, and the decree, being read in that way, must accordingly, be discharged. We do not think that this contention can succeed. The trial court decreed the suit and passed a decree and, although that decree might have been passed on a wrong reason or on a wrong view of the law, it cannot be construed as anything but a decree in the suit as distinguished from an order u/s 41 in a proceeding under that section, and, if it was a case, where in view of our findings aforesaid, a decree could and should have been passed by the trial court, its decree cannot be set aside or discharged, merely upon the finding that it was an order u/s 41 of the Presidency Small Causes Courts Act.

In the above view, we would uphold the lower Appellate Court''s affirmance of the trial court''s decree but, taking into account all the different aspects of the matter, we would give the Defendant-Appellant some time to vacate the suit premises. This appeal will accordingly, fail and it will be dismissed subject only to this that the- Defendant-Appellant will have time till the end of February next to vacate the suit premises. There will be no order for costs in this Court.

N.K. Sen, J.

I agree.