vil Appeal No 291 of 1955
Appeal by special leave from the judgment and order dated March 29 1955 of the Calcutta High Court in appeal from Appellate Order No 134 of 1954 affirming the appeal against the judgment and order 361 dated July 29 1954 of the Court of the District Judge of 24 Parganas in Misc
Appeal No 87 of 1954 arising out of the order of the 1st Additional Court of the Munsif at Sealdah dated February 2 1954 in Misc
Judicial Case No 96 of 1953
N C Chatterjee and section N Mukherjee for the appellant
A V Viswanatha Sastri and D N Mukherjee for the respondent
1957 September 10
The following Judgment of the Court was delivered by GAJENDRAGADKAR J
This is an appeal by special leave in execution proceedings and the short point which the appellant has raised before us is that under section 5 1 of the Calcutta Thika Tenancy Act 1949 West Bengal II of 1949 as amended by the Calcutta Thika Tenancy Amendment Act 1953 West Bengal VI of 1953 execution proceedings taken out by the decrees against him could be entertained only by the controller and not by the civil courts
This point arises in this way
The appellant is a thika tenant in respect of a portion of the premises No 28 R G Kar Road in Calcutta
In Suit No 46 of 1948 a decree for ejectment was passed against him and in favour of the respondent on March 16 1949
This decree was challenged by the appellant by preferring an appeal before the District Court and a second appeal before the High Court at Calcutta but both those appeals failed and the decree for ejectment passed by the trial court was confirmed
Then followed several proceedings between the parties and the course of litigation between them turned out to be protracted and tortuous
Ultimately on May 22 1953 the respondent filed an execution case before the First Additional Court Sealdah Title Execution Case No 34 of 1953
By this application the respondent claimed that the possession of the property covered by the decree should be delivered to him
Thereupon the appellant filed a Miscellaneous Judicial Case under section 47 of the Code of Civil Procedure in the court raising several objections to the decree holder s claim for execution Miscellaneous 362 Judicial Case No 96 of 1953
This case was dismissed by the executing court on February 2 1954
A miscellaneous appeal preferred by the appellant before the learned District Judge 24 Parganas as well as the second miscellaneous appeal preferred by him before the High Court at Calcutta were likewise dismissed
The appellant then applied for leave to prefer an appeal under the Letters Patent
This application was rejected by Mr Justice Renupada Mukherjee who had heard the second appeal
On May 10 1955 the appellant filed a petition for special leave to appeal to this Court and special leave was granted to him on May 18 1955
The courts below have held that the decree holder s application for execution of the decree passed in his favour can and ought to be entertained by the civil courts and an order has been passed against the appellant that he should vacate the premises in question before the end of Jaistha 1362 BS 1 5th June 1955 failing which execution will proceed according to law
The appellant s contention is that the view taken by the courts below about the competence of the civil courts to entertain the decree holder s execution application proceeds on a misconstruction of section 5 1 of the Calcutta Thika Tenancy Act
That is how the only question which arises for our decision is about the construction of the said relevant section
Before dealing with this point it would be useful to consider briefly the history of legislation passed by the West Bengal Legislature with the object of affording protection to the thika tenants
Until 1948 the rights and liabilities of the landlords and their thika tenants were governed by the provisions of the Transfer of Property Act
On October 26 1948 the Calcutta Thika Tenancy Ordinance XI of 1948 was promulgated because it was thought expedient pending the enactment of appropriate legislation to provide for the temporary stay of the execution of certain decrees and orders of ejectment of thika tenants in Calcutta
Section 2 of the Ordinance defined the thika tenant
Section 3 provided that no decree or order for the ejectment of a thika tenant shall be executed during the continuance in operation of the Ordinance From the 363 operation of this section were excluded decrees or orders for ejectment passed against thika tenants on the ground of non payment of rent unless the tenants deposited in court the amount of the decree or order as required by the proviso
The object of the Ordinance clearly appears to be to give protection to the thika tenants in Calcutta and to afford them interim  relief by staying execution of certain decrees and orders as mentioned in section 3 until an appropriate Act was passed by the Legislature in that behalf
Then followed Act II of 1949 on February 28 1949
Section 2 sub section
5 of this Act defines a thika tenant
Section 3 lays down the grounds on which a thika tenant may be ejected
The effect of this section is that it is only where one or more of the six grounds recognized by section 3 is proved against a thika tenant that a decree for ejectment against him can be passed
In other words grounds other than those mentioned in section 3 on which a landlord would have been entitled to eject his thika tenant under the provisions of the Transfer of Property Act became inapplicable to the case of the thika tenants by virtue of section 3
Section 5 sub section 1 reads thus section 5
1 Notwithstanding anything contained in any other law for the time being in force 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 on receipt of such application the Controller shall after giving the thika tenant a notice to show cause within thirty days from the date of service of the notice why the application shall not be allowed and after making an inquiry in the prescribed manner either allow the application or reject it after recording the reasons for making such order and if he allows the application shall make an order directing the thika tenant to vacate the holding and subject to the provisions of section 10 to put the landlord in possession thereof This section requires the landlord wishing to eject his thika tenant on one or more of the grounds specified in section 3 to apply in the prescribed manner to the Controller 47 364 for an order in that behalf
This section further provides for the procedure to be followed by the Controller in dealing with such an application
Two other sections of this Act need to be considered
Section 28 deals with cases where decrees or orders for the recovery of possession of any holding from a thika tenant have been passed before the date of the commencement of the Act and it lays down that if possession has not been obtained by the decree holder in execution of such decrees or orders the court may consider whether the decree or order in question is or is not in conformity with any of the provisions of the Act other than subs
1 of section 5 or section 27
On considering this matter jurisdiction is given to the court to rescind or vary the decree or the order for the purpose of giving effect to the relevant provisions of this Act
A decree or order so varied has then to be sent to the Controller for execution as if it were an order made under and in accordance with the provisions of the Act
Having thus dealt with decrees and orders for ejectment passed against thika tenants prior to the commencement of this Act section 29 proceeds to deal with pending proceedings for ejectment between the landlords and the thika tenants
This section lays down that all pending proceedings of this character shall be transferred to the Controller who shall thereupon deal with them in accordance with the provisions of this Act as if this Act had been in operation on the date of the institution of the suit or proceeding
The proviso to this section exempts the application of section 4 of this Act to such proceedings for obvious reasons
It appears that the definition of the expression thika tenant  contained in the Act gave rise to some difficulties and it was discovered that some of the tenants in Calcutta who were in substance thika tenants failed to obtain the protection of the Act owing to some words used in the said definition
In order to afford protection to the whole class of thika tenants in Calcutta West Bengal Ordinance No XV of 1952 was promulgated on October 21 1952
Accordingly section 2 of this Ordinance amended section 2 sub section
5 of the Calcutta Thika Tenancy Act II of 1949
This is one important 365 change introduced by this Ordinance
The other important change introduced by this Ordinance is to be found in section 5 of the Ordinance
Section 5 sub section
1 lays down that all cases pending before a court or Controller on the date of the commencement of this Ordinance shall be governed by the provisions of Act II of 1949 as amended by this Ordinance
Sub section 2 of section 5 then deals with cases where decrees or orders have been passed for the recovery of possession at any time between the commencement of the said Act and this Ordinance
In the present appeal we are dealing with a decree falling under section 5 sub section
2 of this Ordinance
In respect of such decrees this sub section lays down that the judgment debtor could apply within three months of the commencement of the Ordinance to the court or the Controller as the case may be and invite his decision on the question of his status as thika tenant according to the provisions of this subsection the status of the judgment debtor as a thika tenant would then have to be determined under the amended definition of the expression thika tenant
If the finding on the question of status is in favour of the judgment debtor then the decree or order would have to be set aside and execution proceedings annulled and the matter sent back to the court or Controller for disposal in accordance with law
Subsection 3 of section 5 enables the court or the Controller to stay proceedings if any in execution pending the disposal of an application made under sub section
In other words the effect of sub section
2 of section 5 clearly appears to be that in regard to decrees passed during the period mentioned by this subsection a judgment debt or was given a right to challenge the validity of the said decree or order on the ground that he was a thika tenant under the amended definition of the said expression and this right could be exercised by making an appropriate application within the prescribed period of three months
If no such application is made by the judgment debtor within the prescribed period then the decree or order for ejectment passed against him would be executed under the ordinary law
366 This Ordinance was followed by the Calcutta Thika Tenancy Amendment Act 1953 West Bengal VI of 1953
This Act came into force immediately on the Calcutta Thika Tenancy Amendment Ordinance 1952 West Bengal Ordinance No XV of 1952 ceasing to operate
Under the proviso to section 1 sub section 2 of this Act the provisions of the Calcutta Thika Tenancy Act II of 1949 as amended by this Act shall also apply and be deemed to always apply to all suits appeals and proceedings pending before any court or before the Controller or before a person deciding an appeal under section 27 of this Act on the date of the commencement of the said Ordinance of 1952
It must however be added that this proviso was subject to the provisions of section 9 of this Act
We will presently refer to section 9
Section 2 of this Act adopted the amendment of the definition of the expression  thika tenancy introduced by the amending Ordinance of 1952
Section 4 of this amending Act has amended a 5 sub section
1 of the original Act by deleting the words but subject to the provisions of section 28 which occurred in the said section
By s8 of this Act sections 28 and 29 in the original Act II of 1949 have been omitted and by a 9 it is laid down that any proceedings commenced under sub section
2 of section 5 of the amending Ordinance of 1952 shall on the said Ordinance ceasing to operate be continued as if sub sections
2 3 and 4 of that section and the explanations to that section were in force
It would thus appear that though the Ordinance ceased to be operative the remedy provided by section 5 sub section
2 of the Ordinance to judgment debtors continued to be available to them and the applications made by them to seek
the protection of the said provision bad to be dealt with as if the material provisions of the Ordinance were in operation
It is true that section 9 of the amending Act has not been incorporated in the original Act II of 1949 but it is conceded that the omission to include this section in the original Act does not make any difference
Mr N C Chatterjee for the appellant has contended that the object in enacting the relevant 367 Thika Tenancy Acts and Ordinances is absolutely clear
It is a piece of welfare legislation and as such its operative provisions should receive a beneficient construction from the courts
If the scheme of the Act and the object underlying it is to afford full protection to the thika tenants says Mr Chatterjee courts should be slow to reach the conclusion that any class of thika tenants are excluded from the benefit of the said Act
In support of his argument Mr Chatterjee hasnaturally relied on the observations made by Barons of the Exchequer in Heydon s case 1Indeed these observations have been so frequently cited with approval by courts administering provisions of welfare enactments that they have now attained the status of a classic on the subject and their validity cannot be challenged
However in applying these observations to the provisions of any statute it must always be borne in mind that the first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself
If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act
The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise
When the material words are capable of two constructions one of which is likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achievement of the said policy then the courts would prefer to adopt the latter construction
It is only in such cases that it becomes relevant to consider the mischief and defect which the Act purports to remedy and correct
Indeed Mr Chatterjee himself fairly conceded that be would not be justified in asking the court to put an undue strain on the words used in the section in order 1 1584 3 Co Rep 8 368 that a construction favourable to the thika tenants should be deduced
It is in the light of this legal position that we must now consider section 5 sub section
1 of West Bengal Act II of 1949 amended by West Bengal Act VI of 1953
Under the provisions of sections 5 and 28 of the original West Bengal Act II of 1949 the position was clear
If a landlord wished to eject his tenant he could have obtained an order for ejectment only if his claim was justified on one or more of the grounds recognized by section 3 of the Act
If after the commencement of the Act the landlord wanted to enforce his claim for ejectment he had to apply for the said relief before the Controller under section 5 in the prescribed manner
The application of section 5 sub section
1 was however subject to the provisions of section 28
As we have already pointed out section 28 dealt with decrees or orders already passed whereas section 29 dealt with suits and proceedings pending at the commencement of the Act
The appellant s contention is that the effect of sections 5 28 and 29 was to submit the claims of landlords for ejectment of the thika tenants to a scrutiny in the light of the provisions of section 3 and other relevant sections of the Act
Whether the claim had merged in a decree or was pending in a proceeding at the time when the Act came into force or it was made after the commencement of the Act in every case the test laid down by section 3 had to be applied and the argument is that this position is not altered by the amendments made by Act VI of 1953
In our opinion this argument cannot be accepted
Section 3 clearly refers to the claim for ejectment made by the landlord in a proceeding instituted by him
It is difficult to understand how section 3 could be invoked against a landlord who has obtained a decree for ejectment of his thika tenant
It is quite plain that when a decree holder seeks to obtain possession of his property in execution of a decree he cannot be said to obtain such possession on any of the grounds mentioned in section 3
All that he does is to rely upon the decree passed by a court of competent jurisdiction and to insist upon its execution
Similarly the proceedings contemplated by section 5 sub section
1 cannot in 369 our opinion be said to include execution proceedings of this type
Section 5 sub section
1 deals with cases where the landlord initiates original proceedings for ejecting his thika tenant
This sub section refers to a landlord wishing to eject a thika tenant on one or more of the grounds specified in section 3
Now this description is wholly inapplicable to a landlord who holds  a decree for ejectment in his favour
That is why we feel no hesitation in coming to the conclusion that landlords who have obtained decrees of ejectment against their thika tenants cannot be required to apply under the provisions of section 5 sub section
1 of the Act
That is one aspect of the matter
The other provisions of the said sub section also point to the same conclusion
When an application for ejectment is made under section 5 sub section
1 notice is ordered to be issued to the thika tenant and enquiry follows in the light of the pro visions of section 3
It is only if the Controller is satisfied that one or more of the grounds recognized by section 3 is proved by the landlord that an order for ejectment would be passed by him and this order would be followed by a direction in consequence of which the landlord would be put in possession of the premises
Section 5 sub section
1 thus provides for a self contained procedure for dealing with applications for ejectment made by a landlord against his thika tenant before the Controller
Mr Chatterjee however suggests that the deletion of the words  subject to the provisions of section 28  which originally occurred in section 5 indicates that the Controller has been given jurisdiction not only to entertain original applications for ejectment made by the landlords but also to deal with decrees already passed in their favour
Whether or not the use of the deleted words in the original section 5 1 served any useful purpose and what exactly was their denotation are matters on which it is unnecessary to pronounce a judgment in the present case
It is clear that since section 28 along with section 29 has been deleted from the Act by the subsequent amending Act VI of 1953 any reference to section 28 in section 5 1 would have been entirely out of place
But the deletion of the material words does not enlarge the 370 jurisdiction of the Controller to reopen disputes between the landlords and their thika tenants when in respect of such disputes decrees have already been passed by courts of competent jurisdiction in favour of landlords
All the relevant provisions of section 5 sub section
1 are absolutely inapplicable to cases of such decrees and so we are unable to accept the argument that even where a decree has been passed in favour of the landlord a claim for the execution of the decree would have to be entertained and considered by the Controller under section 5 sub section
Then it is urged that it would be unreasonable to hold that a certain class of thika tenants was precluded from obtaining the benefit of the Act merely because decrees for ejectment were passed before the Act came into force and it is emphasised that the scheme of the original Act as evidenced by sections 5 28 and 29 clearly was to afford protection to all thika tenants even where decrees for ejectment had been passed against them
It must be conceded that under the original Act section 28 purported to give protection to judgmentdebtors  and required that the decrees passed against thika tenants should be examined by the courts that passed the decrees in the light of the provisions of the Thika Tenancy Act
But later on it appears to have been thought prudent to limit the protection to such judgment debtors in the manner contemplated by section 5 sub section
2 of the amending Ordinance of 1952
Such judgment debtors were allowed liberty to apply for setting aside the decrees passed against them within three months after the commencement of the said Ordinance and such applications were required to be dealt with according to law even after the Ordinance ceased to be operative
As we have already pointed out the decree with which we are concerned in the present appeal falls within the purview of the provision of section 5 sub section
2 of the Ordinance
If the judgment
debtor did not avail himself of the right conferred on him by this provision he cannot now seek to rectify the omission by relying on the provisions of section 5 sub section
1 as amended
It may be unfortunate that owing to the steps that he was taking in several 371 proceedings adopted by him in the present litigation he was probably not advised to make a proper application under section 5 sub section
2 of the Ordinance but that is the only protection that he and judgment debtors of his class were entitled to after the amending Ordinance of 1952 came into force
It would therefore not be reasonable to complain that no protection whatever has been given to this class of thika tenants
It may be that the extent of the protection now afforded to this class may not be as wide as it originally was under section 28 of Act II of 1949 but the deletion of section 28 clearly indicates that the Legislature wanted to revise its policy in this matter
The position therefore is that the conclusion which follows from a reasonable construction of section 5 sub section
1 is corroborated by the deletion of section 28 from the Act and by the provision of section 5 sub section
2 of the amending Ordinance of 1952 and section 9 of the amending Act VI of 1953
We mustaccordingly hold that the Calcutta High Court was right in rejecting the appellant s argument that civil courts had no jurisdiction to entertain the execution petition filed by the respondent against the appellant
In the result the appeal fails and must be dismissed with costs
Appeal dismissed


Summary:
Respondent obtained a decree for ejectment against the appellant a thika tenant and filed an application for execution of the decree before the civil Court
Appellant resisted the application on the ground that in view Of section 51 Of the Calcutta Thika Tenancy Act 1949 the civil Court had no jurisdiction to entertain the application
Section 51 provides that a landlord wishing to eject a thika tenant on the grounds specified in section 3 shall apply to the Controller in that behalf
Held that section 51 did not apply to a case where the landlord had already obtained a decree for ejectment against his thika tenant and consequently the civil Court had jurisdiction to entertain the execution application
The operative provisions of welfare legislation should receive a beneficent construction from the Courts
But the words used in a statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of adopting the construction which is more consistent with the policy of the Act arises
Heydon s Case 1584 3 Co Rep 8 referred to