S.K. Jumman vs Jogesh Charan alias Chandra Mitra

Mookerjee, J.—The plaintiff respondent had filed a suit, out of which the present appeal arises, for eviction of the defendant from the land in suit on an alleged determination of the tenancy by a notice to quit. There was also a claim for mesne profits. The defendant questioned the service as also the legality of the notice alleged to have been served upon him and claimed compensation for the structures which were standing on the land. It is not necessary to indicate in detail the various defences raised as the point now in issue in the present appeal is about the interpretation of section 29 of the Calcutta Thika Tenancy Act, 1949 (West Bengal Act II of 1949).

The Trial Court found all the points in favour of the plaintiff, and decreed the suit directing the defendant to remove from the land within a particular date to be fixed. The mesne profits were also assessed at a certain rate per month.

An appeal was taken by the Defendant to the Court of the learned Subordinate Judge. While the appeal was- pending before that Court, Calcutta Thika Tenancy Act, 1949, came into force with effect from the 28th February, 1949. At the hearing of the appeal the tenant appellant contended that that Court had no jurisdiction to hear the appeal, but that the appeal had to be transferred to the Controller appointed under the Calcutta Thika Tenancy Act, 1949. This objection was overruled, and on the merits also the learned Subordinate Judge concurred with the view expressed by the Trial Court.

The only question raised in the present appeal is whether the Lower Appellate Court was competent to hear the appeal after the passing of the Calcutta Thika Tenancy Act, 1949.

The admitted facts in the present case are that a vacant piece of land was let out to the defendant under a written lease which expired in 1939; the tenant was holding over; and the tenant had erected certain structures on the suit land. The notice to quit had been served so far back as October, 1947, and the suit was filed in December following.

The question whether the defendant is a "thika tenant", as under clause (5) of section 2 of the Calcutta Thika Tenancy Act, 1949, has not been decided by the Court below. The Court proceeded to consider the question of jurisdiction on the basis that the Act might be attracted. This decision, however, will not in any way decide the question as to whether the defendant is a thika tenant or not.

It is contended on behalf of the defendant appellant that section 29 of the Calcutta Thika Tenancy Act, 1949, requires all suits and proceedings, including proceedings in execution, for ejectment of a thika tenant which are pending at the date of commencement of this Act to be transferred to the Controller appointed under the Act. It is urged that the expression "suits and proceedings" appearing in section 29 of the Act includes appeals also.

It is a general rule that statutes are not to operate retrospectively, but this general rule may be departed from if there be an express provision in the statute in question, or if by necessary intendment from the language employed by the Legislature. it may be indicated that such was the intention of the Legislature.

Section 29 of the Calcutta Thika Tenancy Act, 1949, specifically refers to suits and proceedings, including proceedings in execution to be transferred to the Controller. Either there is an express provision in this section making the Act retrospective or by necessary implication, such retrospective effect is intended to be imposed. While considering such a question, it is necessary that the Court should not only look into the language of the statute where there is no expression, but also should consider what was the former state of the law as also what it was that the Legislature contemplated. See the observations of Lord Hatherley, L. C, in Pardo v. Bingham (1) [L.R. 4 CA, 735 (740)]. It is also to be remembered that a statute 5s not to be read retrospectively except by necessity. Further, as observed by Lord Seaborne in Main v. Stark (2) (L.R. 15 AC 384, 387):

Their Lordships of course do not say that there might not be something in the context of an Act of Parliament or to be collected from its language which might give to words prima facie prospective a larger operation; but they ought not to receive a larger operation unless you find some reason for giving it...

Words not requiring a retrospective operation, so as to affect the existing statutes prejudicially are not to be so construed.

It is argued that the word "suits'' would include all the different stages of the litigation inclusive of the appellate stage and the expression "and proceedings, including proceedings in execution" following the word "suits" brings in all the different stages in the suit including proceedings in execution. We have to examine whether that interpretation of the words "suits and proceedings" is justified by the other provisions of this Act.

We have to remember in this connection that the interpretation which is attempted to be put on section 29 of the Act is for ousting the jurisdiction of an existing tribunal,--and a tribunal which may be regarded as a superior Court. Tindal, C.J., observed in Albon v. Pyke (3) [(1842) M. & G. 421 (424)] that the general rule undoubtedly was that the jurisdiction of the superior Court was not to be taken away except by express words or necessary implication. To the same effect there are observations by Pollock, B., in Oram v. Brearey (4) 1 (1877) 2 ED 346 (348)], and by Jessel, M.R., in Jacobs v. Brett (5) [(1875) L.R. 20 Equity Cases 1]. The jurisdiction which is vested in the appellate Court is attempted to be ousted, and in such a case, there must be a clear provision or a clear intendment by the Legislature. If there be any doubt about the ousting of the jurisdiction of an existing Court, the Court will lean to such an interpretation which would maintain the existing jurisdiction.

No doubt, when a special forum is created for dealing with a particular land of litigation, the intention of the Legislature would Sometimes be indicated by making the special forum the only place where such litigation can be carried on.

Keeping in view these principles, I shall now "proceed to examine the provisions of the Act in question. A new procedure is laid down for ejecting a tenant who comes under the definition of "thika tenant" in clause (5) of section 2 of the Calcutta Thika Tenancy Act. 1949. Section 5 of that Act provides inter alia, "Notwithstanding anything contained in any other law for the time being in force, but subject to - the provisions of section 28, a landlord wishing to eject a thika tenant on one or more of the grounds specified in section 3, shall apply in the prescribed manner to the Controller for an order in that behalf", and then follows the procedure which the Controller is to follow if such an application is received. That procedure is altogether different from the one which the ordinary Civil Court is required to follow under the Transfer of Property Act if a tenant is to be ejected under the provisions of that Act. Certain circumstances under which a tenant cannot be ejected are indicated in the sections following the one just referred to. Rights are given to the tenant in addition to or in modification of those contained in the substantive law, viz., the Transfer of Property Act, but we are not concerned at this stage with these provisions.

Against an order passed by the Controller, section 27 of the Calcutta Thika Tenancy Act, 1949, provides for an appeal. In the present case, if the Act had been in force on the date when the suit was filed, and the matter had been before the Controller, an appeal would have been allowed to be taken to the Court of the District Judge of 24 Parganas.

The next section, viz., section 28, provides that even if a 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 possession had not been recovered from that tenant by the execution of that decree or order, an application may be filed before that Court for rescinding that decree or order or for varying the same "for the purpose of giving effect to such provision and a decree or order so varied by any Court shall be transferred by such Court to the Controller for execution under this Act as if it were an order made under and in accordance with the provisions of this Act.

There is a clear provision, therefore, to cover cases in which a decree in ejectment might have been passed by a competent Court before this Act had come into force. The only authority competent u/s 28 of this Act to vary or rescind the decree passed by the Civil Court is the Court which passed the original decree. The authority is not given to the Controller or any other officer appointed under this special Act.

Let us now turn to the provisions of section 29 of the Calcutta Thika Tenancy Act which is in the following terms:--

The provisions of this Act shall apply to all suits and proceedings, including proceedings in execution, for ejectment of a thika tenant which are pending at the date of commencement of this Act, and if any such suit or proceeding relates to any matter in respect of which the Controller is competent, after the date of such commencement to pass orders under this Act, such suit or proceeding shall be transferred to the Controller who shall on such transfer deal with it in accordance with the provisions of this Act as if this Act had been in operation on the date of institution of this suit or proceeding :

Provided that in applying the provisions of this.Act to any suit or proceeding instituted for the adjustment of a thinks tenant so transferred, the provisions regarding notice in Section 4 of tiles Act shall not apply.

It is quite clear that the intention of the legislature is to transfer all suits and proceedings, in which decrees might not have been passed already, to the Controller to be deal It with under the special provisions of this Act. There is no difficulty in applying these provisions in the case of proceedings pending in the Original Court and at a stage before the decrees are passed.

We have further ''to consider whether these provisions were intended to be applied to cases where decrees had already been passed and the proceedings were pending before the Appellate Court. If it be taken that the intention of the Legislature was to include appeals under the purview of this section a very anomalous position would arise which would have to be specially provided for. Section 29 of the Act merely directs the proceedings to be transferred to the Controller. If the proceedings so transferred are proceedings before the Appellate Court they would have to be transferred with a preexisting decree passed by a competent Civil Court. If reference be made to section 5 of the Act, it will be noticed that the only procedure which the Controller can adopt in connection with proceedings before him is the procedure appropriate in the case of an original trial. There is no provision in section 5 or in any other section in this Act by which the Controller is given an authority to exercise the powers or the jurisdiction of an Appellate Tribunal. If pending appeals may be transferred to the Controller for disposal, the statute must make necessary provision vesting jurisdiction to function as all Appellate Tribunal and set aside the decree passed by the trial Court. Only if so empowered can the Controller in such cases pass an effective order as under this Act. There is, however, no such provision in the Act and the Controller is not empowered to deal with proceedings pending at the Appellate stage.

Further, as indicated already, an order passed by the Controller is an appealable one. The appeal will lie before the District Judge. If the appeal which was pending before the Lower Appellate Court were to be transferred (to the Controller, the subsequent order which would be passed by that officer would be an appealable one, and the appeal would go before the District Judge. The appeal which was pending in which an application u/s 29 of the Act had been filed was an appeal pending before the District Court, whether the appeal be heard by the District Judge himself, or by a Subordinate Judge. The result of accepting the interpretation, as suggested by the appellant, would lead to an anomalous and unfortunate position, a position which is not envisaged by or provided in the Act itself. The language of the section, if ''taken along with sections 5 and 28, leaves no room for doubt that the word "suits" was used not in the extended sense of being inclusive of appeals, but only to suits which were being heard by /the original Court and had not been disposed of.

If reference is made to the term "Proceedings, including proceedings in execution'', it becomes difficult to appreciate what the Legislature had in view. Roth the learned Advocates appearing on both sides could not suggest what was meant by the Legislature by amplifying the word "proceedings" with the words "including proceedings in execution." I have not been able to find out from the Act any provision under which an execution proceeding transferred to ''the Controller can be dealt with by that officer under the Act. If it be for the purpose of giving effect to the decree already passed by the Civil Court, it becomes meaningless and redundant. If it be for the purpose of affording some relief to the tenant which he otherwise would not be entitled to under the Transfer of Property Act. but would get under the Calcutta Thika Tenancy Act, 1949, the decree passed by the Civil Court stares that officer in the face. There is no provision in the Act, as I have already indicated, under which the Controller has any authority to go behind the decree passed by the Civil Court, or to pass an order in modification thereof to apply the principles enunciated in this 1949 Act. It is not necessary on the present occasion to decide finally whether proceedings in execution can be transferred to the Controller in spite of the provisions made in that section as that is not the proceeding which is proposed to be transferred in the present case. Reliance was placed upon this expression appearing in section 29 to support the contention that the Legislature intended that even after decrees are passed, the Controller is competent to deal with matter transferred from the Civil Court to his office. As it has not been possible to support this part of the section with reference to the procedure laid down in any other portion of the Act, I do not think that I would be justified in extending the meaning of the words "suits and proceedings" so as to include appeals.

The provisions of the Act, if taken as a whole, do not give any jurisdiction to the Controller to affect or to rescind any decree passed by a Civil Court.

That position by itself is sufficient for the present purpose to overrule the contention that section 29 of the Calcutta Thika Tenancy Act. 1949, is attracted in the case of a pending appeal.

One more reason may be indicated showing the futility of the argument advanced in support of the appeal. It the word "suit" or "proceeding" be taken to be inclusive of all the stages in the litigation including the appellate one, that should also be inclusive of a second appeal pending in this Court. To test the interpretation put, we have to take one of the extreme cases. If section 29 were applicable to pending proceedings at the appellate stage, an application would also lie in a pending second appeal in the High Court. If the interpretation were accepted, the result would be that a pending second appeal would be transferred to the office of the Controller to be dealt with ''in what manner I cannot myself conceive of. The decree passed by the original Court might have been affirmed by the Lower Appellate Court, or might have been varied by it; and a second appeal might be pending against the decree of ''the Lower Appellate Court. Can the Controller without any authority vacate [the decree of the lower appellate Court and even of the original Court? If it were so, the Controller will be exercising the powers of the High Court while dealing with a second appeal There is no such statutory provision in the Act. The situation which will be created is something inconceivable.

This is one of the cases where I think that the Legislature has not made ally provision, either directly or by necessary intendment or implication, to oust the jurisdiction of the Appellate Court as under the ordinary law. The decision of the Lower Appellate Court that that Court had jurisdiction to deal with the appeal was correct. On the merits of the case it is conceded that if the Lower Appellate Court is found to have jurisdiction to dispose of the appeal the decision made by that Court cannot be assailed in this Court. This appeal is accordingly dismissed. In the circumstances of this case, there will be no order as to costs in this Court.