Srimati Dasi vs Sibani Bala Mitra

Roxburgh, J.—This is an appeal against a decree of the Subordinate Judge, Third Court, Alipore, dismissing an appeal from a decree for ejectment and arrears of rent in Title Suit 129 of 1948 in the First Additional Court of the Munsif at Alipore.

The decree of the Munsif was passed on November 29, 1948 Three suits were tried together. The present appeal only relates to Suit No. 129. The decree was that the Plaintiff was to recover khas possession of the land in suit by evicting the Defendant; the Defendant was to vacate the land removing the structures within March 29, 1949, in default, the Plaintiff would be entitled to take possession of the land by evicting the Defendant and demolishing the structures; there was a decree for Rs. 2-7 for arrears of rent and for mesne profits at 13 annas 6 pies per month from the Ashwin 1, 1353 B.S., until the date when she recovered khds possession of the land.

When the appeal came to be heard, the Calcutta Thiha Tenancy Act, 1949, had come into force. Judgment was delivered by the learned Subordinate Judge on September 9, 1949. Before him, it was contended that the proceedings were pending within the meaning of Section 29 of the Act and that, therefore, they should have been transferred to the Controller. The learned Judge rejected this contention, noting that there was no argument addressed to him on the merits. He accordingly dismissed the appeal.

The appeal raises the question of how we are to interpret Section 29 and also I think Section 28, of the Calcutta Thiha Tenancy Act, 1949 (hereafter referred to as the Act). In Civil Revision Case No. 1870 of 1949 Sarojini Debi v. Rabindra Mohan Sen (1850) CRC 1870 of 1949, decided on March 28, since reported in ILR (1951) 1 Cal. 550, I have recently discussed at some length what is the interpretation to be given to Section 28 of the Act. I have held in substance that the meaning of the section is that where a decree for ejectment has been passed, the original trial court which passed the decree will take action u/s 28, if moved and after giving both parties full opportunity to show whether the decree for ejectment is an order that would have been passed under the Act if the Act had been in force when the suit was brought, will rescind or vary the decree accordingly or in suitable cases reject the application. I have held that the action is to be taken by the original trial court even in cases where there has been an appeal to a higher court.

The present case raises the problem of deciding what our Legislature meant in Section 29 of the Act, which runs as follows:

Application of Act to pending suits and proceedings. 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 order 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 the suit or proceeding:

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

My opinion is that in the section the word "pending" in regard to suits or proceedings (e.g., proceedings under Chap. VII of the Presidency Small Cause Courts Act) for ejectment could only have been intended to mean "pending before a decree was "passed by the trial court". Ordinarily, one would take the expression that a suit was pending as including the circumstance that it was pending in an appeal. Strictly speaking, however, a suit does not include an appeal and it is common in statutes, where this is required specifically, to provide that a suit includes an appeal: (sic) Section 2(21) of the Bengal Money-lenders Act. On the contrary, in Section 2(10) of the Limitation Act, it is specifically provided that suit does not include an appeal. Assuming as we ought to, that the legislature in framing these sections meant to make reasonably sensible provisions, it would seem to follow necessarily that the meaning I have indicated of the phrase "suits and proceedings pending", must be the correct one. Otherwise, we will have to hold that the legislature provided that where a decree had been passed by a trial court, but there was no appeal, if that decree was to be rescinded or varied, the application was to be made to the trial court which will pass the necessary orders, whereas if an appeal happened to have been filed against the decree then it was for the Controller to take action. And again, the result of holding that the intention was that proceedings where there was an appeal were to be transferred to the Controller would be, in my opinion, disastrous. The transfer is only to be made to the Controller if the suit or proceeding relates to any matter which the Controller is competent to pass orders under the Act, but no power is given to the Controller to rescind, vary or in any way touch a decree actually made. He is only to deal with it in accordance with the provisions of the Act as if the Act had been in operation at the date of the institution of the suit or proceeding. As I have pointed out in the case cited, the powers of the Controller are very limited. He cannot pass a decree for arrears of rent nor can he execute a decree for arrears of rent. If the present decree were transferred to the Controller, it is very difficult to see what he could do with it under the powers conferred under the Act.

An argument was put forward that, as Section 29 includes proceedings in execution which are to be transferred to the Controller, the section assumes that, even in cases where a decree for ejectment has been passed by the court, the proceedings in execution will be sent to the Controller. The suggestion was that, therefore, it was implied that the Controller in some way was given some power to deal with the decree itself. I think that this view also is erroneous. In the case cited, I pointed out that u/s 28, there was provision for transfer to the Controller for execution under the Act only of such decrees as were varied u/s 28 and that nothing was said about transfer of decree in which no variation was necessary. I think that the answer to that criticism raised by me in that case is that the necessary provision is made in Section 29 and that the words "including proceedings in execution" in that section refer to cases where execution is taking place in a court and where nobody makes any application u/s 28 for having the decree varied. In such cases, the proceedings in execution will go to the Controller u/s 29. If, however, a decree has been passed by a court, which, as is the case in the present instance, requires some variation for the reasons I have indicated in respect of similar facts in the case cited, then the variation is to be made by the court which originally made the decree. In other words, in my opinion, the main dividing line between Sections 28 and 29 is that Section 28 relates to all cases in which there is a decree for ejectment by a court while Section 29 relates to all cases where there are proceedings which have not reached the stage of a decree by a trial court. But Section 29 will also apply to cases where a decree for ejectment is being executed which neither party suggests requires to be varied in order that the Controller may deal with it. Such are necessarily cases where no action is required u/s 28. Section 28, therefore, also clearly covers all cases where the decree of the trial court is under appeal or subject to further proceedings in a higher court (unless, of course, of particular case comes in the category where no variation is necessary to bring it into conformity with the Act).

The result is that the present appeal will stand dismissed, but I make it clear that, in view of the decision in the case cited, I consider that it is open to the tenant to make an application to the trial court u/s 28. It is clear that, if anything further is to be done in regard to the execution of the decree as it stands, it must be varied, for the reasons I indicated in the previous case. It has to be split up into order for ejectment with an order u/s 6 of the Act specifying the amount of the arrears, the costs and the damages up to the date of the new order to be passed by the trial court. The tenant will be at liberty to take advantage of the provisions of Section 6 and pay that amount and save ejectment. There will also be a separate decree for arrears of rent, costs and mesne profits, as already passed, which decree will be one that can only be executed by the trial court. If the landlord chooses to raise any question as to whether the decree for ejectment should stand on the basis of many of the grounds given in Section 3 of the Act (or any other ground available to him under the Act, if such there be), he must be given an opportunity to do so, the tenant, of course, also being given an opportunity to meet any such case.

I make no order as to costs in this appeal.