Nalinakhya Bysack Vs. Shyam Sunder
Haldar & Ors [1953] INSC 5 (29 January 1953)
DAS, SUDHI RANJAN MAHAJAN, MEHR CHAND
BHAGWATI, NATWARLAL H.
CITATION: 1953 AIR 148 1953 SCR 533
CITATOR INFO :
R 1982 SC 149 (252) F 1990 SC 933 (14) RF
1991 SC 101 (69,227,273) R 1992 SC 96 (14)
ACT:
West Bengal Premises Rent Control (Temporary
Provisions) Act (XVII of 1950), s. 18 (1)Whether aplies to orders for recovery
of possession made by Presidency Small Cause Court" Decree for recovery of
possession "-Construction of statutes-Mistakes of legislature.
HEADNOTE:
The expression " decree for recovery of
possession " in s. 18 (1), of the West Bengal Premises Rent Control
(Temporary Provisions) Act (Act XVII of 1950) does not include an order for
recovery of possession made under s. 43 'of the Presidency Small Cause Courts
Act, 1882, and a person against whom an order for 534 recovery of possession
has been passed under s. 43 of the Presidency Small Cause Courts Act, 1882, is
not therefore entitled to claim relief under the provisions of s. 18 (1) of Act
XVII of 1950.
Rai Bahadur Atulya Dhan Banerjee v. Sudhangsu
Bhusan Dutta ([1951] 5 5 O.W.N. 343), Dhanesh Prokash Pal-v. Lalit Mohan Ghosh
([1951] 55 C.W.N. 347), Mohan Lal Khettry v. Chuni Lal Khettry ([1951] 55
C.W.N. 421) Jethmull Sethia v. Aloke Ganguly ([19511 55 C.W.N. 563), Iswari
Prosad Goenka v. N. B. Sen ([19511 55 C.W.N. 719) overruled.
In construing a statute it is not competent
to any court to proceed upon the assumption that the Legislature has made a
mistake and even if there is some defect in the phraseology used by the
Legislature, the Court cannot aid the defective phrasing of an Act or add and
amend, or by construction, make up deficiencies which are left in the Act.
Commissioner for Special Purposes of Income
Tax v. Pemsel (11891] A.C. 531); Crawford v. Spooner ([1846-51] 4 M.I.A.
179) and Hansraj Gupta v. Official Liquidator
of Dehra Dun Mussourie Electric Tramway Co. Ltd. ([1933] 60 I.A. 13) referred
to.
CIVIL APPELLATE JURISDICTION: , Civil Appeal
No. 96 of 1952.
Appeal from the Judgment and Order dated the
9th April, 1951, of the High Court of Judicature at Calcutta (Sen and Chunder
JJ.) in Civil Rule No. 1038 of 1950 arising out of the Order dated the 4th
July, 1960, of the Court of the 6th Judge, Presidency Small Causes Court,
Calcutta, in Ejectment Suit No. 6571 of 1949.
Arun Kumar Dutta and, Shivdas Ghosh for the
appellant.
Panchanan Ghose (S. P. Ghose, with him) for
the respondent.
1953. January 29. The Judgment of the Court
was delivered by DAS J.-This appeal is directed against the judgment and order
of a Bench of the Calcutta High Court passed on the 9th April, 1961, in 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 ground floor of premises No. 6, Roy
Began 535 Street, Calcutta, at a monthly rent of Rs. 25 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 the 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
premises on the allegation that the tenancy had determined ipso fact,) for
nonpayment 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 February, 1950, and the respondents
not having appeared it was heard ex parte and an order was made directing the
delivery of possession of the premises to the appellant on the 3rd May, 1950.
In the meantime on the 31st March, 1960, 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 Jaistha 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 and final orders. All proceedings and execution stayed until further
orders." The agreed amount having been paid the order for possession was
vacated on the 4th July, 1950. The 536 order as recorded in the order sheet
reads as follows:"4-7-50. Parties present as before. Defendant carries out
the order of the learned Court, dated 5th June, 1950. Money deposited in Court
as ordered. Accordingly order of decree for possession is vacated. Money in
Court is allowed to be withdrawn by the plaintiff's pleader under power."
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 application was pending before the High Court
the West 'Bengal Premises Rent Control (Temporary Provisions) (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 Bahadur Atulya Dhan Banerjee v. Sudhangsu Bhusan Dutta (1)
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 Chapter VII of the Presidency
Small Cause Courts Act, 1882. Chapter VII of that Act which is instituted
"Recovery of Possession of Immovable Property" allows the landlord,
in certain circumstances, to "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 (1) (1951) 55 C.W.N, 343.
537 him to give possession of the property to
the applicant on such date as the Court thinks fib 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 not a suit and the order for delivery of possession does
not strictly speaking amount to a decree for recovery of possession [See Rai
Meherbai Sorabji Master v. Pherozshaw Sorabji Gazdar(1)].
Indeed, section 1.9 of the Act peremptorily
provides, inter alia, that the Small Causes Court shall have no jurisdiction 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.
Section 18(1) and the marginal note to that
section run as follows:
"18. (1). Where any decree for recovery of
possesPower of court to soon of any premises has been made |rescind or vary on
the ground of default in decrees and orders payment of arrears of rent under or
to give relief in the provisions of the West Bengal pending suits in Premises
Rent Control (Temporary, certain cases Provisions) Act, 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 subsection till the application has been
dismissed under subsection (4)." In Rai Bahadur Atulya Dhan Banerjee v.
Sudhangsu Bhusan Dutta it was held that the expression "decree for
recovery of possession" in subsection (1) of section 18 includes an order
for recovery of possession made under Chapter VII of the Presidency Small Cause
Courts Act, 1882. This case (1) (1927) I.L.R. 51 BOM. 385.
(2) (1951) 55 C.W.N. 343.
538 was followed, without further discussion,
by different Benches of the-same High Court in Dhanesh Prakash Pal v. Lalit
Mohan Ghose (1), Mohon Lal Khettry v: Chuni Lal Khettry(2), Jethmull Sethia v.
Aloke Ganguly (3) and also in the present case. Finally, the question was again
considered by a larger Bench of the Calcutta High Court in Iswari Prosad Goenka
v. N. B. Sen(4). The learned Judges agreed with the earlier decision in Rai
Bahadur Atulya Dhan Banerjee v. Sudhangsu Bhusan Dutta (5). After hearing the
able arguments I 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.
Apart from the question whether the marginal
note can at all be referred to in construing the provisions of 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 employed therein
is clear and unambiguous. If the language of the section is clear then it may
be that there is an accidental slip in the marginal note rather than that the
marginal note is correct 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 section 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 conditions 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) (I951) 55 C.W.N. 421.
(3) (1951) 55 C.W N. 563.
(4) (1951) 55 C.WN. 7I9.
(5) (1951) 55 C.W.N. 343.
539 interpretation of the body of the
section. We have, therefore, to read the words used in the body of section
18(1) of the 195O Act and if we find the meaning 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, 1950, when the order for
possession passed on the 27th February, 1950, was vacated, gave relief to a
tenant against 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 possession 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 in particular the
specific reference therein to the Act of 1948 take us back to that Act. Section
II 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, I 882, 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 two different things. This is further made clear by the use
of two words " suit " or " proceeding " in section 12 of
the 1948 Act. It is, thus, quite clear that in the 1948 Act " suit "
is different from " proceeding" 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 (1) of Act XVII of 1950 does not refer to
"decree" 70 540 simpliciter but to "any decree for recovery of
possession of any premises on the ground of default in payment of arrears of
rent under the provisions 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 suit for
recovery of possession and cannot cover an order for possession 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 meaning to the word "decree", for "order " is
separately dealt with in that Act.
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 used in section 18(1) of the last mentioned Act.
It has 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 cannot 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? That word has not been defined
either in the 1948 Act or in Act XVII of 1950 or in the Bengal General Clauses
Act. That word, however, has been defined in the Code of Civil Procedure, 1908,
and, as there defined, it means the formal expression of an adjudication 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 (section 26 and Order IV, rule 1, 541 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 for possession passed under section 43 of the Presidency
Small Cause Courts Act on an application made under section 41 of that Act.
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 plaint and, therefore.,
an adjudication in those proceedings which are also suits in that extended
meaning 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 1950, which
expressly provides that in the proviso to sub-section (1) the term "suit"
does not include proceeding under Chapter VII of the Presidency Small Cause Courts
Act, 1882, and it is urged that this explanation inferentially means that the
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 proceeding 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 1960 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 proceeding under Chapter VII of the Presidency Small
Cause Courts Act. Section 12 (1) prohibits the making of any order or decree
for the 542 recovery of possession by any Court, notwithstanding anything to
the contrary in any other Act or law. This subsection (1), standing by itself,
means that no order for possession can be passed by the Presidency Small Cause
Court notwithstanding the Presidency Small Cause Courts Act and no decree for
possession can be made by any Court in any suit notwithstanding the Transfer 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 Small 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 landlord 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 and 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 be 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 operation of Chapter VII of the Presidency Small Cause Courts
Act in Calcutta for no one will take proceedings in which no order can be made.
The effect of those sections is to confer a new jurisdiction on the 543 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 the
ordinary original civil jurisdiction of the Calcutta High Court when the
monthly rent does not exceed Rs. 600. 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 decree " in section 18 (1) cannot be sustained.
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 possession 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 intention of the Legislature. This argument
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 certain tenants in certain circumstances. In the
first 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 ground. In the next place relief is given only when the possession of
the premises in respect of which a 544 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 specified. in the
subs section and even tenants against whom a decree for possession had been
made on the specified ground but who had, voluntarily or otherwise, delivered
possession of the premises get no relief under section 18 (1). An order for
possession is made 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 suit and to execute such decree, because both the decree
for possession in a suit and the order for execution thereof are subject to
appeal. The Legislature 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 the Calcutta High Court and which, in
spite of such orders, were still 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 possession of the tenants and, therefore, did not think fit to provide
for those few cases. It must always be borne in mind, as said by Lord Halsbury
in Commissioner for Special Purposes of Income Tax v. Pemsel (1), that it is
not competent to any Court to proceed upon the assumption that the Legislature
L. R. [1891] A. C. 531 at P. 549.
545 has made a mistake. The Court must
proceed on the footing that the Legislature intended what it has said. Even if
there is some defect in the phraseology used by the Legislature the Court
cannot, as pointed out in Crawford v.
Spooner(1), aid the Legislature's defective
phrasing of an Act or add and amend or, by construction, make up deficiencies
which are left in the Act. Even where there is a casus omissus, it is, as said
by Lord Russell of Killowen in Hansraj Gupta v. Official Liquidator of Dehra
Dun-Mussoorie Electric Tramway Co., Ltd. (2), for others than the Courts to
remedy the defect. In our view it is not right to give 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 the learned
Judges who decided them, that the several cases relied on by the respondent
were not correctly decided.
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
dismissed and we order accordingly. In the circumstances 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 respondent : Sukumar Ghose.
(1) 6 Moo. P.C. I; 4 M.I.A. 179.
(2) (1933) L.R. 60 I.A. I3; A.I.R. 1933 P.C
63.
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