Civil Appeal No. 96 of 1952 · The High Court

CrvIL APPELLATE JuRISDIOTION: Civil Appeal No. 96 of 1952. Appeal from the Judgment and Order dated the 9th April, 1951, of the High Court of Judi cature at Calcutta (Sen and Chunder JJ.) in Civil Rule No. 1038of1950 arising out of the Order dated the 4th July, 1950, of the Court of the 6th Judge, Presidency Small Causes Court, Calcutta, in Eject ment Suit No. 6571 of 1949. Arun Kumar Dutta and Shivdas Ghosh for the -. appellant. Panchanan Ghose (S. P. Ghose, with him) for the respondent.

1053. January 29. The .Judgment of the Court . was delivered by , DAS J.-This appeal is directed against the judg ment and order of a Bench of the Calcutta High Uourt passed on the 9th April, 1951, iu Civil Rule No.1038 of 1950. The facts leading up to this appeal may be shortly stated as follows : The respondents were, according to the appellant, monthly tenants under the appellant in respect of three rooms, one kitchen, one privy and a bathroom on the groundfioor of premises No. 6, Roy Began • . - 1953 Nalinakhya By sack v Shyam Sunder Haldar and Others. Das J . S.C.R. SUPREME COURT REPORTS 535 Street, Calcutta, at a monthly rent of Rs. '35 payable according to the Bengali calendar month. On the 29th Baisakh 1356 B. S. the appellant gave notice to the respondents to quit the premises on or before the 7th Jaistha 1356 B.S. The respondents having failed to comply with tqe notice the appellant on the 1st June, 1949, instituted proceedings under Chapter VII of the Presidency Small Cause Courts Act, 1882, for the eviction of the respondents from the demised pre mises on the allegation that the tenancy had deter mined ipso fact.J for non-payment of rent for three consecutive months in terms of section 12 (3) of the West Bengal Premises Rent Control Act, 1948. The respondents on the 6th July, 1949, deposited into Court Rs. 233-7-0 and on the 8th July, 1949, entered appearance and filed a written statement denying that they were in arrears with their rent or that their tenancy had been ipso facto determined. The said proceedings came up for hearing on the 27th Febru ary, 1950, and the respondents not having appeared it wa·3 heard ex parte and an order was made directing the delivery of possession of the premises to the In the meantime appellant on the 3rd May, 1950. on the 31st March, 1950, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (Act XVII of 1950) came into force. On the 29th May, 1950, the respondents filed an application in the trial Court under section 18 of the said Act for vacating the order for possession. On the 5th June, 1950, the trial Court made an order upon terms which, as set out in the respondents' case, are as follows : "5 .. 6-50. On consent all arrears of rent up to J aistha 1357 B.S. with interest at 9% p.a. along with the costs of the suit including half Pleader's fee amounting to Rs. 399-3-0 on consent in total to be paid by the defendants to the plaintiff by 4-7-50. The date fixed for payment arid final orders. All proceed ings :a.nd execution stayed until further orders." The agreed amount having been paid the order for possession was vacated on the 4th July, 1950. The 1953 Nalinakhya Bysaak '536 SUPREME COURT REPORTS . ' [1953] order as follows:- recorded the order sheet reads as v. • "4-7-50. Parties present as before. Defendant carries out the order of the learned Court, dated 5th Shyam s,.nder June, 1950. Money deposited in Court as ordered. Haldai· Accordingly order of decree for possession \s vacated. Money in Court is allowed to be withdrawn by the plaintiff's pleader under power." and Others. Das J. The appellant on the 1st August, 1950, moved the High Court under section 115 of the Code of Civil Procedure for setting aside the order of the trial Court passed on the 4th July, 1950. While the appli cation was pending before the High Court the West Bengal Premises Hent Control (Temporary Provi sions) (Amendment) Act, 1950 (Act LXII of 1950) came into force on the 30th November, 1950. On the 9th April, 1951, the High Court following an earlier .decision of another Bench of that Court in Rai Baha dur Atulya Dhan Banerjee v. Sudhangsii Bhusan Dutta(') dismissed the. application. On the 30th November, 1951, the High Court granted leave to the appellant to appeal to this Court and issued a certificate under the provisions of article 133 (1) (c) of the Constitution of India .. As already stated, the proceedings out of which 'the present appeal arises were instituted under Chap ter VII of the Presidency Small Cause Courts Act, 1882. Chapter VII of that Act which is intituled "Recovery of Possession of Immovable Property" allmvs the· landlord, in certain circumstances, "apply to the Small Cause Court for a summons against the occupant calling upon him to show cause on a day therein appointed why he should not be compelled to deliver up the property." Section 43 provides that if the occupant does not appear at the time appointed or show· cause to the contrary, the applicant landlord shall, if the Court is satisfied that he is entitled to apply under section 41, be entitled to an order addressed to a Bailiff of the Court directing (I) (1951 J 55 C.W.N. 343· S.C.R. SUPREME COURT REPORTS 537 1953 k. Nalinakhya Bv,,ack v. him to give possession of the property to the appli cant on such date as the Court thinks fit to name in such order. Although under the rules framed under the Act this application under section 41 is initiated by a plaint there is no dispute that the proceeding is Shyam Sunde,. not 'a suit and the order for delivery of possession does not strictly spea mg amount to a ecree or [See Rai Meherbai Sorabji recovery of possession. Master v. Pherozshaw Sorabji Gazdar(1 Indeed, section 19 of the Act peremptorily provides, inter alia, that the Small Causes Court shall have no jurisdic- tion in suits for recovery of immovable property. The only question for consideration, therefore, is whether section 18(1) of Act XVII of 1950 applies to an order for possession made under section 43 of the Presidency Small Cause Courts Act, 1882. Haldar and Others. Das J. d ) ]. f ' . ·"" " Section 18(1) and the marginal note to that section run as follows : . "18. (1). ·where any decree for recovery Gf posses- sion of any premises has been made Power of Court to rescind or vary on the ground of default in payment decree~ and ~rdei:s of arrears of rent under the provisions or to give rehef in in of the vVest Bengal Premises Rent rending suits Control (Temporary Provisions) Act, certaincases. 1948, but the possession of such premises has not been recovered from the tenant, the tenant may apply to the trial Court within sixty days of the coming into force of this Act for vacating the decree for ejectment against him and within such period no order for delivery of possession shall be made by any Court, nor if an application is made by the tenant under this sub-section till the application has been dismissed under sub-section ( 4)." In Rai Bahadur Atulya Dhan Banerjee v. Su dhangsu Bhu,san Dutta it was held that the ex pression "decree for recovery of possession" in sub section (1) of section 18 includes an order for re covery of possession made under Chapter VII of the Presidency Small Cause Courts Act, 1882. This case (l) (1927) I.L.R. 51 Born, 385, (2) (1951) 55 C.W,N. ~i3• 1953 Nalinakhya Bysack v. Shyam Sunder Haldar and Others. Das J. 538 SUPREME COURT REPORTS [1953] was followed, without further discussion, by different Benches of the same High Court in Dhanesh Prakash Pal v. Lalit Mohan Ghose ('), Mohan Lal Khettry v. C"kuni Lal Khettry ('), Jethmull Sethia v. Aloke Ganguly (') and also in the present case. Finally, the question was again considered by a larger Bench of the Calcutta High Court in Iswari Prasad Goenka v. N. R. Sen('). The learned Judges agreed with the earlier decision in Rai Bahadur Atulya Dhan Banerjee v. ). After hearing the able arguments advanced before us and giving the most anxious consideration to the decisions in the cases mentioned above we are unable to accept the conclusion arrived at by them in those cases as correct. Sudhangsu Bhusan Dutta (5 that the marginal note Apart from the question whether the marginal note can at all be refened to in construing the provisions ol a section of an Act, it is quite clear, on the authorities, that the marginal note cannot control the meaning of the body of the section if the language therein is clear and unambiguous. If employed the language of the section is clear then it may be that there is an accidental slip in the marginal note is correct rather than and the accidental slip is in the body of the section itself. Take for instance section 11 of the West Bengal Premises Rent Control Act, 1948. The sec tion says that notwithstanding anything contained in certain Acts specified therein, "no order or decree for the recovery of possession of any premises shall be made so long as the tenant pays to the full extent the rent allowable by this Act and performs the condi tions of the tenancy." The marginal note to that section simply says: " No order for ejectment ordinarily to be made if rent paid at allowable rate." In the marginal note the words "or decree" do not find a place at all, a fact which clearly shows that the marginal note was not prepared carefully and that it was not a sure guide in the matter of the (1) (1951) 55 C.W.N. 347· ' (2) (1951) 55 C.W.N. 421. (3) (r951) 5~ C.w N. 563. (4) (195r) 55 C.WN. 719. (5) (1951) 55 C.W.N. J43· ) . 1953 Na!inakhya Bysack V, Shyam Sunder Haldar and Others. Das J. S.O.R. SUPREME COURT REPORTS 539 in particular interpretation of the body of the section. We have, therefore, to r'ead the words used in the body of sec tion 18(1) of the 1950 Act and if we find the meaw:i ing clear and unambiguous, the marginal note should not be permitted to create an ambiguity in the section. Section 18 (1), as it stood on the 4th July, :1.950, when the order for possession passed on the 27th February, 1950, was vacated, gave relief to a tenant aga.inst whom any decree for recovery of possession of any premises had been made on the ground of default in payment of arrears of rent under the provisions of the 1948 Act, provided that the posses sion of the premises had not been recovered from him. The relief given by this section is clearly against a decree for possession which "has been made" under the 1948 Act. The language of section 18 (1) of the 1950 Act and the specific reference therein to the Act of 1948 take us back to that Act. Section 11 of the 1948 Act refers "to order or decree for the recovery of possession of any premises". The reference in the non obstante clause of section 11 to the Presidency Small Cause Courts Act, 1882, clearly indicates that the order for the recovery of possession refers to orders passed under section 43 of the last mentioned Act on applications made under section 41 thereof. Section 11 speaks of both "order" for the recovery of possession and " decree " for the recovery of possession. Therefore, there can remain no manner of doubt that the two words " order " and " decree " in section 11 connote '.l'his is further made clear by two different things. the use of two words "suit" or "proceeding" in section 12 of the 1948 Act. I~ is, thus, quite clear that in the 1948 Act "suit" is different from "pro ceeding" and "order" is different from "decree". Therefore, in construing the 1948 Act there can be no occasion for giving any extended meaning to the word" decree" so as to include "order", for the two are distinctly and separately provided for. Section 18 (I) of Act XVII of 1950 does not refer to "decree" 7q 1958 Nalinakhya Bysack v. Shyavi Sunder Haldar and OtherR, Das J. 540 SUPREME COURT REPORTS [1953] simpliciter but to "auy decree for recovery of posses sion of any premises on the grouud of default in pay ment of arrears of rent under the pravisions of" the 1948 Act. Turning then to that Act we find that a decree for possession on the ground of non-payment of rent under that Act is treated distinctly from an order for possession on the ground of non-payment of rent under the same Act. A decree for the recovery of possession within the meaning of that Act can, therefore, only mean a decree in a snit for recovery of possession and eannot cover an order for posses sion passed under section 43 on an application made under section 41 of the Presidency Small Cause Courts Act. In short, section 18(1) of Act XVII of 1950 expressly attracts the 1948 Act and under that Act there can be no necessity for giving an extended . . meamng o 1s sepa- rately dealt with in that Act. ecree , or or er d "d e wor " d " f " t It is said that whatever the word "decree" may mean in the 1948 Act it is immaterial for the purposes of construing Act XVII of 1950 for the Court has to ascertain the meaning of the word ''decree" as u"sed It has in section 18(1) of the last mentioned Act. been already stated that the language of section 18 (1) attracts the relevant provisions of the 1948 Act and, therefore, the word "decree" occurring in section 18(1) must necessarily be construed in the light of the 1948 Act and it is clear that so construed it can not cover "order" for possession made under Chapter VII of the Presidency Small Cause Courts Act. Apart from that consideration, the question still remains: What does the word "decree" in section 18 (1) mean? 'fhat word has not been defined either in the 1948 Act or in Act XVII of 1950 or in the Bengal General '!.'hat word, however, has been defined Clauses Act. in the Code of Civil Procedure, 1908, and, as there defined, it means the formal ex.pression of an adjudi ca.tion which determines the rights of the parties with regard to the matter in controversy in the suit which last word prima facie means a civil proceeding initiated by a plaint (secti<;m 26 1J,nd Order IV, rule 11 S.C.R. SUPREME COURT REPORTS 54i Civil Procedure Code). This is the ordinary accepted meaning of the word " decree" and if that meaning is attributed to the word " decree " occurring in section 18(1) then clearly it cannot cover an order Jor possession passed under section 43 of the Presidency Shyam Sunder Small Cause Courts Act on an application made under seotion 41 of that Act. Nalinakhya By sack v. Haldar and Others. 1953 Das J. It is, however, urged that the word " decree" in section 18 (1) of Act XVII of 1950· should not be read in its strict sense. It is said that although the word "suit" ordinarily means a proceeding instituted by a plaint, it is also used in a wider sense so as to cover proceedings which are not instituted by a pla~nt and, therefore, an adjudication in those pro- ceedings which are also suits in that extended mean- ing may well be said to be a "decree". Reference is made to the explanation of sub-section (1) of section 12 of Act XVII of 1~50, which expressly provides that in the proviso to sub-section (1) the term "suit" does not include proceeding under Chapter VII of the Presidency Bmall Cause Courts Act, 1882, and it is urged that this explanation inferentially means that tlie word "suit" occurring in the other sections of Act XVII of 1950 may include a proceeding under Chapter VII of the Presidency Small Cause Courts Act and, therefore, an order made on such a proceed- ing may be described as an adjudication in a suit and, therefore, a decree. It is not quite clear how this inference, even if it can be properly drawn, can have any bearing on the construction of the word "decree" in sub-section (1) of section 18 of the Act XVII of 1950 where the word " suit" is not used at all. Be that as it may, the argument founded on the aforesaid inference sought to be drawn from the explanation to section 12 (1) of Act XVII of 1950 will clearly appear to be untenable when the provisions of that Act are closely scrutinised, for it will then be found that the word "suit" does not and was not intended to cover any proceedin'g under Chapter VII of the Presidency Small Cause Courts Act. Section 12 (1) prohibits the making of any order or decree for the 1953 Nalinakhya Bysack v. Shyam Sundllr Haldar and Others. Das J. 542 SUPREME COURT REPORTS [i953] recovery of possession by any Court, notwithstanding anything to the contrary in any other Act or !:ow. This sub-section (1), standing by itself, means that no oriler for possession can be passed by the Presidency Small Cause Court notwithslanding the Presidency Small Cause Courts Act and no decree for possession can be made by any Court in any suit notwithstanding the 'rransfer of Property Act or the Contract Act or the Code of Civil Procedure, 1908. The proviso to sub-section (1), however, saves "any suit for decree for such recovery of possession" against certain tenants or in certain circumstances. Therefore, it is clear that the proviso to sub-section (1) of section 12 does not save proceedings under Chapter VII of. the Presidency Small Cause Courts Act. The explanation to that sub-section stating that the word "suit" in the proviso does not include a proceeding under Chapter VII of the Presidency SmaU Cause Courts Act appears to have been inserted out of abundant caution to put the position beyond any doubt. Section 16 of Act XVII of 1950 provides that notwithstanding anything contained in any other law a suit by a land lord against a tenant for recovery of possession "of any premises to which the Act applies shall lie to the Courts as set out in Schedule B and that no other Court shall be competent to entertain or try such suit. According to Schedule B, where the premises are situate on land wholly within the ordinary original civil jurisdiction of the Calcutta High Court aud when the rent does not exceed Rs. 500 per month, the Chief Judge of the Calcutta Court of Small Causes shall entertain and try such suit .as a Court of the District Judge, provided that he shall be entitled to transfer the suit to any other Judge of that Court who shall try it as a Court of the Subordinate Judge. The result of sections 12 and 16 read with Schedule 'B is for all practical purposes to suspend the opera tion of Chapter VII oft.he Presidency Small Cause Courts Act in Calcutta for no one will take proceed ings in which no order can be made. The effect of those sections is to confer a new jurisdiction on the ... • S.C.R. SUPREME COURT REPORTS . ~ - . . . .. 543 1953 By sack v. Haldar and Others. Chief Judge of the Calcutta Small Cause Court to entertain and try suits by landlords -against tenants for recovery of possession of premises situate within Nalinakhya the ordinary original ci vii ju.risdiction of the Calcu1'ta High Court when the monthly rent does not exceed Shyam Sundei· Rs. 500. Thus after Act XVII of 1950 came into force the Calcutta Small Cause Court has ceased to have any power to pass an order for possession under Chapter VII of the Presidency Small Cause Courts Act and the Small Cause Court of Calcutta can, under that Act, only pass a decree for possession in a suit which is saved by the proviso to sub-section (1) of section 12 and with regard to which a special jurisdiction is conferred on that Court by section 16 of that Act. That being the position, the word" suit " in none of the sections of Act XVII of 1950 can be said to have been used as including a proceeding under Chapter VII of the Presidency Small Cause Courts Act. Therefore, the reasoning advanced in support of attributing an extended meaning to the word "suit" and then inferentially to the word "decrne" in section 18 (1) cannot be sustained. Das J. It is next ·argued that if the word "decree" is construed strictly it will give rise to startling results in that poor tenants against whom orders for posses sion had been made under the 1948 Act will be deprived of the benefit of section 18 (1) while the wealthy tenants paying rents above Rs. 500 per month will get relief under that section and this will frustrate the i1:1tention of the Legislature. This argu ment proceeds on the assumption that the Legislature intended .to give relief to all tenants against whom orders or decrees for possession had been made. The language of section 18 (1) clearly shows that the intention of the Legislature was to give relief only to In the first certa;in tenants in certain circumstances. place relief is given only with respect to decree for possession made on the specified ground and not with respect to a decree for possession made on any other In the next place reliHf is given only when ground. the possession of the premises in respect of which a 544 SUPREME COURT REP'ORTS [1953j 1958 Nalinakhya By sack v. Shyani Sunder Haldar and Others. Das·J. decree for possession had been made had not been made over by the tenant. Thus tenants against whom a decree for possession had been made on grounds other than the.ground specifi~d in the sub section and even tenants against whom a decree for possession had been made on the specified ground but who had, voluntarily or otherwise, delivered posses sion of the premises get no relief under section 18 (1). An order for possession i.s niade by the Presidency Small Cause Court under Section 43 on a summary application under section 41 and the order directs the Bailiff of the Court to deliver possession to the applicant. This'order for the recovery of possession which under section 37 of the Presidency Small Cause Courts Act is final and conclusive and from which there is no appeal or a new trial under section 38 of that Act does not ordinarily take much time to be obtained or to be carried out and certainly much less than what is taken to obtain a decree for possession in a snit and to execute such decree, because both the decree for possession in a suit arid the order for execution thereof are subject to appeal. The Legis lature may well have thought that cases where orders for possession had been made under Chapter VII of the Presidency Small Cause Courts Act with respect ' to premises which were situate within the small area of the ordinary original civil jurisdiction of Calcutta High Court and which, in spite of such orders, were sti]j in the possession of the tenants at the date of the commencement of Act XVII of 1950 would be few in number as compared to the number . of cases where decrees for possession had been made with respect to premises which were situate within a very much larger area and which were still in the tenants and, therefore, did not possession of the It, must think fit to provide for those few cases. always be borne in mind, as said by Lord Halsbury in Commissioner for Special Piirposes of Income Tax v. Pemsel ('),that it is not competent to any Court to proceed upon the assumption that the Legislature (I) L, R. [t891) A. C, 531 at p. 5+9· • S.C.R. SUPREME COUR'r REPORTS 545 1958 · d fi · Bysack v. has made a mistake. The Court must proceed on the footing that the Legislature intended what it has Nalinakhya said. Even if there is some defect in the phraseology . used by the Legislature the Court cannot, as poinwed out in Crawford y. Spooner (1), aid the Legislature's Shyam Sunder defective phrasing of an Act or add and amend or, l f by construction, make up e ciencies w 10 are e t in the Act. Even where there is a casus omissus, it is, as said by Lord l:tussell of Killowen in Hansraj Gupta v. Official Liquidator of Dehra Dun-Mussoorie Electric Tramway Co., Ltd. (2 ), for others tlian the Courts to remedy the defect. In our view it is uot right to gi.ve to· the word " decree" a meaning other than its ordinary accepted meaning and we are bound to say, in spite of our profound respect for the opinions of learned Judges who decided them, that the several cases relied on by the respondent were not correctly decided. Haldar and Others. h' h Das J . Reference was made, in course of argument, to section 6 of the West Bengal Act LXII of 1950. That section refers to orders or decrees made between the commencement of Act XVII of 1950 and Act LXII of 1950, i.e., between the 30th March, 1950, and the 30th November, 1950, and cannot have any application to the order for possession made in this case on the '27th February, 1950. For reasons stated above this appeal must be allowed and the order made by the High Court should be set aside and the respondents' application under section 18 (1) of Act XVII of 1950 should be dis missed and we order accordingly. In the circum stances of this case we make no order as to costs except that the parties should bear their own costs throughout. Appeal allowed. Agent for the appellant: S. C. Bannerji. Agent for' the r~spondent : Sukumar Ghose. (1) 6 Moo. P.C. l; 4 MJ.A. 179· (2) (19~3) L.R. 60 I.A, 13; A.l.R. 193~ P.C. 6~,