l 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 section P Ghose with him for the respondent
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 section the appellant gave notice to the respondents to quit the premises on or before the 7th Jaistha 1356 BS
The respondents having failed to comply with the notice the appellant on the 1st June 1949 instituted proceedings under Chapter VII of the  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 BS with interest at 9 pa 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 vs Sudhangsu Bhusan Dutta1 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 
Chapter VII of that Act which is intituled 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 1 537 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 vs Pherozshaw Sorabji Gazdar1
Indeed section 19 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 181 of Act XVII of 1950 applies to an order for possession made under section 43 of the 
Section 181 and the marginal note to that section run as follows 18
Where any decree for recovery of posses Power of court to sion 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 1948but 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 vs 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 
This case 1 BOM
2 538 was followed without further discussion by different Benches of the same High Court in Dhanesh Prakash Pal vs Lalit Mohan Ghose 1 Mohon Lal Khettry v Chuni Lal Khettry2 Jethmull Sethia vs 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 vs N B Sen4
The learned Judges agreed with the earlier decision in Rai Bahadur Atulya Dhan Banerjee vs 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 2 I951 3 4 5 539 interpretation of the body of the section
We have therefore to read the words used in the body of section 181 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  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 
In short section 181 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 sepa rately 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 181 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 181 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 
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 181 then clearly it cannot cover an order for possession passed under section 43 of the 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  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 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 
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 sub section 1 standing by itself means that no order for possession can be passed by the Presidency Small Cause Court notwithstanding the 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 
The explanation to that sub section stating that the word suit in the proviso does not include a proceeding under Chapter VII of the 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 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 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 
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 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 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 vs Pemsel 1 that it is not competent to any Court to proceed upon the assumption that the Legislature L R  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 vs Spooner1 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 vs 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 ie 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 respondent  Sukumar Ghose
1 6 Moo
PC I 4 MIA 179
2 1933 LR 60 IA I3 AIR 1933 PC 63


Summary:
The expression  decree for recovery of possession  in section 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 section 43 of the  and a person against whom an order for 534 recovery of possession has been passed under section 43 of the  is not therefore entitled to claim relief under the provisions of section 18 1 of Act XVII of 1950
Rai Bahadur Atulya Dhan Banerjee vs Sudhangsu Bhusan Dutta 1951 5  Dhanesh Prokash Pal vs
Lalit Mohan Ghosh 1951  Mohan Lal Khettry vs Chuni Lal Khettry 1951 Jethmull Sethia vs Aloke Ganguly 19511  Iswari Prosad Goenka vs N B Sen 19511 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 vs Pemsel 11891 AC 531 Crawford vs Spooner 1846 51 4 MIA 179 and Hansraj Gupta vs Official Liquidator of Dehra Dun Mussourie Electric Tramway Co Ltd 1933 60 IA 13 referred to