Shaikh Ahmmad and Another vs Sudhir Kumar Ghosh

Chakravartti, C.J.—This Rule involves a question of construction with respect to section 5(2) of the Calcutta Thika Tenancy (Amendment) Ordinance. 1952, which, we understand, has been causing some difficulty. The question has arisen out of the follownig facts : The petitioners are in occupation of a certain plot of land situated within the limits of the Municipality of Howrah and they or their predecessors have built some structures thereon. The land is held under the opposite party. On the 15th of March. 1950, the opposite party made an application before the Second Munsif at Howrah, sitting as a Controller under the Calcutta Thika Tenancy Act, praying for an order of ejectment against the petitioners on the ground that they were Thika tenants and had not only defaulted in paying arrears of rent, but had also let out a major part of the holding for more than six consecutive months. The application was thus an application under clauses (i) and (v) of section 3 of the Calcutta Thika Tenancy Act. 1949. By an ex parte order made on the 9th of September. 1950, the Controller allowed the application. He did not base his order on the ground of default. because he said that an order of ejectment on the ground of default could be averted by making a deposit u/s 6 of the Act, but since the petitioners were liable to be ejected, in any event, on the other ground, it would serve no purpose to direct their ejectment on the ground of default He therefore, allowed the application on the ground of unauthorised sub-letting of a major part of the holding for more than six consecutive months and ordered the opposite party to pay compensation, as required by proviso (ii) to sec. 4 of the Act. As the petitioners failed to file a statement as to what compensation they would claim, although the Controller asked them to do so, an order was made appointing a Commissioner for the purpose. Further proceedings under the order last mentioned were proceeding when the petitioners filed an application for review u/s 27 of the Act. That application was made on the 11th of December. 1050, and thereupon Miscellaneous Case No. 365 of 1950. was started. For some time the original case which was Miscellaneous Case No. 78 of 1950. and the review case, which was Miscellaneous Case No. 365 6i 1950. proceeded on parallel lines, but on the 9th of June. 1951, the Controller directed that Case No. 78 of 1950 would remain in abeyance till Case No. 365 of 1950 was disposed of and would be taken up after the disposal of that case. The review application was dismissed on the 5th of August. 1952, both on the merits and on the ground that it was barred by limitation. Proceedings in Case No. 78 of 1950 were then resumed, but before they could go far, the petitioners preferred an appeal, which was Miscellaneous Appeal No. 176 of 1952. When the appeal was pending, the Calcutta Thika Tenancy (Amendment) Ordinance of 1952, was promulgated and it came into force on the 21st of October, 1952. Thereafter on the 3rd of December. 1952, when the appeal was still pending, the petitioners made an application u/s 5(2) of the Ordinance of 1952, but as the records were with the appellate Court, the Controller was unable to deal with the application. The appeal was subsequently dismissed and upon the receipt of the records from the appellate Court, the Controller directed the application u/s 5(2) of the Ordinance to be registered on the 22nd of December, 1952. The application was in due course heard and it was dismissed on the 2nd of May, 1953. An appeal taken from the order of dismissal was also dismissed on the 27th of February, 1954. Thereafter, the petitioners moved this Court and obtained the present Rule.

Both the Controller and the learned Judge on appeal have held that section 5(2) of the Ordinance does not contemplate an application by a person who was sued as or found to be a Thika tenant even under the main Act of 1949 before its amendment by the Ordinance and against whom a decree or order for ejectment had been made in his capacity of a Thika tenant. "On reading section 5(2) of the Ordinance, " observes the learned Judge, "I cannot persuade myself to imagine a case of a Thika tenant who having had suffered an order of ejectment to be passed upon a footing that he was so within 1949 Act, could again come either to the Controller or to the Court to find him to be a Thika tenant under 1949 Act as amended by 1952 Ordinance". Both the Controller and the learned Judge have taken the view that the intention of section 5(2) of the Ordinance that it does not apply to a person who has already been found to be a Thika tenant, even within the meaning of the 1949 Act and has suffered a decree or order for ejectment in that character, appears from the terms of the section itself. The learned Judge, however, has -added a further ground in support of the view taken by him. He has said that u/s 27(6) of the Act, an order made by the Controller shall, subject to any order that may be passed in review, be final and that finality also attaches under that section to any order made by an appellate authority. According to the learned Judge, the petitioners, having availed themselves of the provision for a review and having also appealed, but having failed both in their application for a review and in their appeal, could not fall bank upon section 5(2) of the Ordinance and commence a new attack on the order of ejectment. The orders suffered by them had become final.

It was contended before us on behalf of the petitioners that the construction placed by the Conrtoller and the learned Judge on the terms of section 5(2) of the Ordinance was erroneous and that if the two preliminary conditions mentioned in the first part of the section were satisfied, the person against whom a decree or order for ejectment had been passed, would be entitled as of right to make an application under the sub-section, even though he might have been sued or proceeded against as a Thika tenant in the original proceeding and had been found to be so. The right given by the sub-section to the person against whom a decree or order for possession had been passed was, it was said, unqualified, save by the two conditions laid down in the opening part of the sub-section.

In order that the validity of this contention may be examined, it is necessary to set out the terms of sections 5(1) and 5(2) of the Ordinance. They read as follows :

Sub-Section (1) : "Save as provided in sub-section (2), the provisions of the said Act as amended by this Ordinance, shall apply to all cases'' pending before a Court or Controller on the date of the commencement of this Ordinance."

Sub-section (2) : If, at any time I between the commencement of the said Act and of this Ordinance, a decree or order has been passed for the recovery of possession of any land and for the, other relief, if any, and delivery of possession has not been given, then on application made in this behalf by the person against whom the decree or order was passed, within three months of the commencement of this Ordinance, the Court which or the Controller who passed the decree or order shall decide (after hearing the parties and after taking fresh evidence if necessary) whether the person is a thika tenant within the meaning of the said Act as amended by this Ordinance. If the Court or Controller holds that the person is not such a thinka tenant, it or he shall dismiss the application. [f the Court or Controller holds that the person is such a thika tenant, it or he shall set aside the decree or the order and annul the execution proceedings, if any, and

(i) Where the proceedings are before a Court it shall remit the case to the Controller to be dealt with by him according to law;

(ii) Where the proceedings are before the Controller--, he shall reopen the case and pass a new order.

What is contended on behalf of the petitioners is that the Thika Tenancy Act having come into force on the 28th of February, 1949, the Ordinance having come into force on the 21st of October, 1952, and the order for possession having been made on the 9th of September, 1950, it was passed between the commencement of the Act and of the Ordinance and, therefore, the first condition laid down in section 5(2) was satisfied. It is said, in the next place, that the order is an order for recovery of possession of land and delivery of possession not having yet been given, the second condition is also satisfied. It is said lastly that the petitioners being persons against whom the order was passed, their application was not required to fulfil any other condition and it was clearly maintainable under the express terms of the sub-section.

I shall deal with this contention presently, but before I do so, I would like to refer to what appears to me to be a second difficulty in the way of the petitioners. Under the terms of section 5(2) of the Ordinance which I have just read, the application under the sub-section is to be made to "''the Court which or the Controller who passed the decree or order". In the present case, the order for possession was originally passed by a Controller, but there was an appeal which was dismissed. In such a case, it is at least arguable that after the appellate Court has dismissed the appeal, the only order for possession is an order passed by the appellate Court into which the order of the Controller must he deemed to have merged. If that be so, the tribunal which had passed the decree would he not the Controller but the appellate Court. The word "Court" has been explained in clause (ii) of the Explanation attached to section 5 and it is there said that the expression Court includes a Court exercising appellate or revisional jurisdiction", it will be noticed that unlike section 37 of the CPC the Explanation does not define the expression "the Court which passed the decree", but only the expression ''''Court". If the Explanation had been in the terms of section 37 of the Code of Civil Procedure, the Court which passed the decree would include the Court of first instance, even though the decree or order to be reopened had been passed by a Court in exercise of an appellate jurisdiction. The present Explanation, however, is limited to the word "Court" and if the extended definition, as given in the Explanation, be substituted for the expression "Court" in sub-section (2). one gets the result that the application would have to be made to the Appellate Court which had passed the decree. It would, therefore, seem, at least prima facie, that after the petitioners had taken an appeal from the order of the Controller and suffered a dismissal of that appeal. the only authority before which they could make an application after such dismissal would be the appellate Court and not the Controller. I do not, however, desire to rest my decision on that basis, because, unfortunately, the appellate order is not on the record and besides that it was an order of dismissal, we do not know anything about its actual terms. There is some difference of judicial opinion as to what an appellate decree or order of affirmance ought to be like in order that the trial Court''s decree or order can be said to have merged in it.

To revert now to the question of construction, I find myself unable to accept the view contended for on behalf of the petitioners. There appear to me to be several indications in the subsection itself which would show that what it contemplates is an application by a person, who had been found not, to be a Thika tenant under the main Act of 1949, and against whom a decree or order for possession had been passed, or perhaps with respect to whose status there had been no finding at all. but who is a Thika tenant within the meaning of the Act. as amended by the Ordinance. The sub-section does not appear to contemplate that a person, who has already been found to he a Thika tenant under the main Act of 1949, before its amendment and who is also a Thika tenant under the amended Act, can make an application under the sub-section and have the whole matter between him and his landlord reopened and reagitated, although no question about his status falls to be decided.

Turning now to the terms of the section, it will appear that in many respects they cannot be taken literally. To take but one instance, the decree or order contemplated by the sub-section is described as a decree or order ''''passed for the recovery of possession of any land". That language is perfectly general and if one had to go by that description alone, one would have to hold that the decree or order might well be a decree or order for the possession of a piece of bare land on which no structure had been constructed by the tenant. Such, however. is not the true intention of the sub-section, because it would appear from the terms of sub-section (1) that sub-section (2) is an exception to that sub-section and the earlier subsection relates to "cases pending before a Court or a Controller on the date of the commencement of this Ordinance" and therefore relates to cases under the Thika Tenancy Act or at least cases with which the Act has some concern. I am pointing this out. because it has been contended that we ought to go by the letter of the sub-section and ought not 1o look further. As to the various indications in the sub-section regarding its true intention which I mentioned a few moments ago, the the first to be noticed is that the party against whom the decree or order has been passed is described by the subsection as "the person". He is not called "the tenant" or "the thika tenant". Tn the second place, the subsection provides that the Court or the Controller "shall decide * * * whether the person is a thika tenant within the meaning of the said Act as amended by this Ordinance", "on application made in this behalf". It is thus perfectly clear that the object of the application must be to obtain a decision as to whether the applicant is a Thika tenant within the meaning of the amended definition. It appears to me to be impossible to say that by such a provision, the Ordinance-making authority could have intended that a person, who had been admitted or had already been found to be a Thika tenant in the original proceeding, could, nevertheless, apply for a fresh decision that he was such a tenant within the meaning of the amended Act. Except in respect of three classes of tenants, the amended definition of Thika tenant is wider than the original definition. It. drops the reference be various terns which the original definition contained and. quite obviously, enlarges the class of persons, who would come within its purview. There could thus be no question that barring three classes. 1 have mentioned, a person who had been found to be a Thika tenant within the meaning of the original definition would necessarily be such tenant within the extended definition substituted by the Ordinance. There could thus be no point in a person, already admitted or adjudged to he a Thika tenant within the meaning of the original Act. applying u/s 5(2) of the Ordinance for a decision that he is a Thika tenant within the meaning of the amended Act as well. Quite obviously, the case contemplated is the case of a person whose claim to be a tenant under the old definition had been rejected, but who found after the promulgation of the Ordinance that he could now claim the status of a Thika tenant under the wider definition and obtain the benefit of the Act. The object of the provision seems to be to give relief to persons, who would be Thika tenants under the new definition, but who, not having been, or not having been able to prove themselves to be such tenants within the meaning of the Act before its amendment, had suffered a decree or order for ejectment because of the lack of that status, between the commencement of the Act and that, of the Ordinance The object cannot reasonably be taken to be to give persons, who are Thika tenants under both the original definition and the amended definition a second chance of a second fight with their landlords for no apparent reason whatever I therefore, think that the decisive factors in arriving at a true construction of the sub-section are not the two preliminary conditions laid down in its opening part, but the scope and the object of the application contemplated, as appearing from the specification of the subject-matter of decision. The true test, to my mind, is not to see merely whether the decree or order was passed between the commencement of the Act and that of the Ordinance and whether delivery of possession had been given. but to see whether the applicant could have any reason to make and maintain the application contemplated by the section, or. to put it in another way. whether the application contemplated by the section could possibly Or reasonably be made by him. Judged by the test. I have just mentioned, it must follow that a person who has already been admitted or adjudged to be a thika tenant even under the main Act of 1049, and who has suffered a decree or order for possession with his status of a Thika tenant taken into account, is not competent to make the application contemplated by the section and it is not such persons that the sub-section contemplates.

A passing reference must now be made to the three cases in which the amended definition of a thika tenant appears to be narrower than the original definition. The three cases are of persons who hold land in perpetuity, persons who hold land under a registered lease for a period expressly stated to be not less than 12 years and persons who use or occupy the land held as a khattal. Persons of these three classes might perhaps come under the old definition, if the condition as to the proof of a system was satisfied, but they are excluded from the purview of the new definition. Does this difference justify the conclusion that, even a person, who was admitted or adjudged to be a thika tenant under the main Act before its amendment. could make an application under subsection 5(2) of the Ordinance ? I find it impossible to hold that he could. It is to be noticed that the- applicant contemplated by the sub section is not the landlord, who has obtained a decree or order for possession, but the person who has suffered the decree or order. If the landlord had been given a right: to make an application, he could coneeivably have come and asked for a decision that a person, who had been admitted or found to be a thika tenant under the old definition was not such a tenant under the amended definition, because he came under one or other of the three classes which the new definition excepts. An application by the person, who has suffered a decree or an order for ejectment, for a decision that though a thika tenant under the unamended Act. he is no longer such a tenant, because of the exceptions made by the amendment, is not conceivable. I would therefore think that so far as is material for the purposes of an application section 5(2) of the Ordinance, the amended definition is wider than the old definition and therefore in the case of a. person against whom a decree or an order for possession has been made in the capacity of a thika tenant, can have no reason at all to ask for a. decision that he is a thika tenant under the amended definition as well by means of an application under the sub-section.

So much as to the language of the sub-section and the nature of the application contemplated by it, such as that language indicates. If one proceeds to the further provisions contained in the sub-section, one must be confirmed in the view that the Ordinance-making authority could not have intended to give a person, already found to be a thika tenant under the main Act, a fresh chance of fighting the differences between his landlord and himself over again. The closing part of the sub-section provides that if the Court or the Controller holds that the applicant is a thika tenant, it or he shall set aside the decree or the order and shall annul the execution proceedings, if any, and then shall re-open the case and pass a new order. I have already pointed out what I may only call the absurdity of holding that, by the subsection, the Court or the Controller has been solemnly enjoined by the Legislature to decide that a person, who has already been found to be a thika tenant is a thika tenant. Leaving that apart, it is pertinent to enquire how the further steps to be taken by the Court or the Controller, as envisaged by the section can fit in with a reasonable notion of what the Ordinance-making authority must have intended. Except with respect to one matter to which I shall presently refer, the Ordinance makes no difference as to the rights and liabilities of either a thika tenant or his landlords as they were under the Act before its amendment. In those circumstances, if a decree or order passed against a person on the basis that he is a thika tenant is to be re-opened and a new order in accordance with law is to be passed, the scope of such further proceedings must necessarily be that the same old issues of fact and Jaw that have once been tried out must be re-tried. I cannot imagine the Ordinance-making authority ha unintended that although a person may have already been dealt with as a thika tenant and all the privileges available to him may have already been considered in the original proceedings and although a decree or order may have been passed against him, because it was found that though a thika tenant, he had made himself liable to ejectment and could claim no protection under the Act, still the very same matters must be re-opened and allowed to be canvassed and decided over again for no other reason that having been a thika tenant, he continues to be a thika tenant and that the definition of a thika tenant has been widened so as to comprise a wider class of persons. which in no way concern him. I cannot conceive of anything less rational than such a view and 1 am not prepared to attribute it to the Ordinance-making authority.

The one matter which causes a little difficulty is the amendment made by the Ordinance of clause (v) of section 3 of the Act. Under the clause, as it stood before its amendment, a thinka tenant was liable to be ejected, if he had failed himself to use or occupy a major part of the holding for his own residential, manufacturing or business purpose for more than six consecutive months. Once the failure to occupy a major part of the holding for the stated period was found, the thika tenant would be liable to suffer ejectment and there was no exception or qualification attached to the clause. The Ordinance, however, makes a small amendment and provides that, in such a case, the thika tenant shall not be liable to ejectment from that portion of the holding which he himself uses or occupies and shall be deemed to be a thika tenant in respect of that portion, if he agrees to pay such proportionately fair rent for that portion as may be fixed by the Controller. In a case coming within clause (v) of section 3. therefore, a person against whom a decree or order for ejectment has been made as a thika tenant under the unamended Act, may be entitled to some relief, if the decree or order is reopened under the Ordinance. I do not however think that this single exception justifies the view that section 5(2) of the Ordinance contemplates applications even by persons who were dealt with as thika tenants within the meaning of the main Act and directed to he ejected on that basis. As I have already pointed out, except in this one case, in all other cases, the result of reopening the decree or order would almost he ridiculous because it would be a meaningless duplication of proceedings which have already been had between the thika tenant and his landlord and for directing which no resonable cause can be thought of. In my opinion, the obviously better view to take is that although the Ordinance-making authority was making this amendment of clause (v) of section 3, he did not intend that its benefit would be available to a thika tenant in the limited number of cases contemplated by section 5(2) of the Ordinance by means of an application under that sub-section. That such was not the intention is. to my mind, established by the scope and object of the application contemplated by the section which I have already explained.

Our attention was drawn to a decision of Renupada Mukherji, J., in the case of Krishnalal Halder v. Ratha Ranjan Banerji alias Promode Ranjan Benerji, Civil Revision Case No. 460 of 1954, decided on the 14th July, 1954. [59 C.W.N. 131 (notes)] in which the learned Judge took the view contended for by the petitioners before us. With great respect to the learned Judge, we are unable to agree with him. He has gone by the two preliminary conditions laid down in the section and held that once those conditions were satisfied, the person against whom a decree or order for possession had been passed, would necessarily be entitled to make an application under the sub-section. I have already pointed out that one ought not to stop at the circumstances contemplated by the section in which an application may be made, but must proceed to consider the kind of application contemplated and see whether such an application could have been provided for by the Ordinance-making authority and could be made for any reasonable or intelligible purpose, if the applicant was a person who had already been admitted or found to be a thika tenant in the original proceedings. The reasons I have already given for taking the view need not be repeated.

To my mind the object of the subsection, broadly looked at, is plain. There was an unfortunate reference to several systems in the original definition of a thika tenant and a very wide class of persons were finding it impossible to prove their status because of the difficulty of proving a system. As a result, between the date when the Act had come into force and the date when the Ordinance was promulgated, several of such persons had been unable to claim the benefit of the Act and had suffered decrees or orders for ejectment. The Houses of Legislature not then being in session, the Governor came to the rescue of that class of persons with the Ordinance of 1952 which enlarged the definition of a thika tenant and gave an opportunity to the persons, against whom decrees or orders for possession had already been made, to claim the status of a thika tenant under the new definition and to have the decrees or orders re-opened. I do not say that a section of an Ordinance, any more than the section of an Act, is to be construed by reference to the background of facts, but it appears plainly enough even from the terms of the sub-section that its object was to extend the benefit of the status of a thika tenant to persons who were really thika tenants under the terms and conditions of their leases, but who had had the misfortune of suffering a decree or order for ejectment by reason of the difficulties created by the old definition in regard to the proof of the status. To say that the sub-section creates a general charter in favour of all judgment-debtors under decrees for ejectment from lands, including those who had suffered decrees or orders as thika tenants, to make an application u/s 5 (2) of the Ordinance and to have a de novo trial, appears to me to misread the sub-section.

I would add only one word with reference to the second ground given by the learned Judge in support of his view. That ground it will be remembered, is that the order of the Controller or the order of the appellate Court had become final under subsection (6) of section 27 and therefore the petitioners had no right to invoke the aid of section 5 (2) of the Ordinance. That view appears to me to be misconceived. The finality u/s 27 (6) is a finality under the Act. Section 5(2) of the Ordinance is not a part of the Act, but is a provision of an external character. As a provision of the Ordinance, it belongs to the Ordinance alone and is not directed to be incorporated in the main Act, and even when the Act was subsequently further amended in 1953, the provisions of section 5(2) of the Ordinance were not embodied therein. This section of the Ordinance therefore stands outside the Act and provides a kind of emergency relief to the class of persons contemplated by it, who had suffered the misfortune of an ejectment decree or order since the commencement of the Act and before the promulgation of the Ordinance. It is not controlled by the Act, but stands apart and, therefore, the ground drawn by the learned Judge from section 27(6) of the Act must be held to be not a valid ground.

For the reasons, I have given, this Rule is discharged. As, however, a contrary view of the sub-section was taken at least in one decided case, I would make no order as to costs.

Lahiri, J.

I agree.