Case: Nalinakhya Bysack Vs. Shyam Sunder Haldar & Others

S.R. Das, J.1. This appeal is directed against the judgment and order of a Bench of the Calcutta High Court passed on 9-4-1951 in Civil Rule No. 1038 of 1950. The facts leading up to this appeal may be shortly stated as follows:2. 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 Street, Calcutta, at a monthly rent of Rs . 25 payable according to the Bengali Calendar month. On 29th Baisakh 1356 B.S. the appellant gave notice to the respondents too quit the premises on or before 7th Jaistha 1356 B. S. The respondents having failed to comply with the notice, the appellant on 1-6-1949 instituted proceedings under Chap 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 facto for non payment of rent for three consecutive months in terms of S.12(3) of the West Bengal Premises Rent Control Act, 1948. The respondents on 6-7-1949 deposited into Court Rs. 233-7-0 and on 8-7-1949 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 27-2-1950 and the respondents not having appeared it was heard exparte and an order was made directing the delivery of possession of the premisesto the appellant on 3-5-1950. In the meantime on 31-3-1950 the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (Act 17 of 1950) came into force. On 29-5-1950 the respondents filed an application in the Trial Court under S.18 of the said Act for vacating the order for possession. On 5-8-1950 the Trial Court made an order upon terms which, as set out in the respondents case, are as follows:"5-6-1950. On consent all arrears of rent up to Jaistha 1357 B.S. with interest at 9 p.c. p.a. along with the costs of the suit including half Pleaders fee amounting to Rs. 399-3-0 on consent in total to be paid by the defendants to the plaintiff by 4-7-1950. To date fixed for payment and orders. All proceedings and execution stayed untill further orders."The agreed amount having been paid the order for possession was vacated on 4-7-1950. The order as recorded in the order sheet reads as follows :"4-7-1950. Parties present as before Defendant carries out the order of the learned Court, dated 5-6-1950. Money deposited in Court as ordered. Accordingly order of decree for possession is vacated. Money in Court is allowed to be withdrawn by the plaintiffs pleader under power."The appellant on 1-3-1950 moved the High Court under S.115, Civil P.C., for setting aside the order of the Trial Court passed on 4-7-1950. While the application was pending before the High Court the West Bengal Premises Rent Control (Temporary Provisions) Amendment Act. 1950 (Act 62 of 1950) came intoforce on 30-11-1950. On 9-4-1951 the High Court following an earlier decision of another. Bench of that Court in Atulya Dhan v. Sudhangsu, AIR 1951 Cal. 32 (A) dismissed the application. On 30-11-1951 the High Court granted leave to the appellant to appeal to this Court and issued a certificate under the provisions of Art.133(1)(c) of the Constitution of India.3. As already stated, the proceedings out of which the present appeal arises were instituted under Chap. VII of the Presidency Small Cause Courts Act, 1882. Chap.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."S.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 S.41, be entitled to an order addressed to a Bailiff of the Court directing him to give possession of the property to the applicant on such date as the Court thinks fit to name in such order. Although under the rules framed under the Act this application under S.41 is initiated by a plaint there is no dispute that the proceeding is not a suitand the order for delivery of possession does not strictly speaking amount to a decree for recovery of possession. See Meherbai v. Pherozshaw Sorabji, AIR 1927 Bom. 556 (B). Indeed S.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 S.18(1) of Act 17 of 1950 applies to an order for possession made under S.43 of the Presidency Small Cause Court; Act, 1882.4. S.18(1)and the marginal note to that section run as follows:"18. (1) Where any decree for recovery of possession of any premises has been made on the ground of default in Power of Court payment of arrears of rent under the provisions, of the West Bengal Premises Rent to rescind or Control (Temporary provisions) Act, 1948, but the possession of such premises has not vary decrees and been recovered from the tenant, the tenant may apply to the Trial Court within sixty days anders or to of the coming into force of this Act for vacating the decree for ejectment against him and give relief inwithin such period no order for delivery of possession shall be made by any Court, nor if pending suits in an application is made by the tenant under this sub-section till the application has been certain cases dismissed under sub-s.(4)."In AlR 1951 Ca1. 32 (V) (supra) it was held that the expression "decree for recovery of possession" in sub-s.(1) of S.18 includes an order for recovery of possession made under Chap. VII of the Presidency Small Cause Courts Act, 1882. This case was followed, without further discussion, by different Benches of the same High Court in Dhanesh Prakash v. Lalit Mohan, 55 Cal. W.N. 347 (C)Mohan Lal v. Chunni Lal, 55 Cal. W. N. 421 (D); Jethmull v. Aloke Ganguly, AIR 1952 Cal. 126 (E) 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, AIR 1952 Cal 273 (F.B.) (F). The learned Judges agreed with the earlier decision in AIR 1951 Cal. 32 (A) (supra). 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.5. 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 S.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 interpretation of the body of the section. We have, therefore, to read the words used in the body of S.18 (1) of the 1950 Act and if we find the meaning clear and unambiguous, the marginal note should not be permitted to create an ambiguity in the section.6. S.18(1), as it stood on 4-7-1950 when the order for possession passed on 27-2-1950 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 S.18 (1) of the 1950 Act and in particular the specific reference therein to the Act of 1948 take us back to that Act. S.11 of the 1948 Act referes to "order or decree for the recovery of possession of any premises. " The reference in the non obstante Clause of S.11 to the Presidency Small Cause Courts Act, 1882 clearly indicates that the order for the recovery of possession refers to orders passed under S.43 of the last mentioned Act on applications made under S.41 thereof. S.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 S.11 connote two different things. This is further made clear by the use of two words "suit" or "proceeding " in S.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. S.18(1) of Act 17 of 1950, does not refer to "decree" 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 meana decree in a suit for recovery of possession and cannot cover an order for possession passed under S.43 on an application made under S.41 of the Presidency Small Cause Courts Act. In short, S.18(1) of Act 17 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.7. It is said that whatever the word "decree," may mean in the 1948 Act is immaterial for the purposes of construing Act 17 of 1950 for the Court has to ascertain the meaning of the word "decree" as used in S.18(1) of the last mentioned Act. It has been already stated that the language of S.18(1) attracts the relevant provisions of the 1948 Act and, therefore, the word "decree" occurring in S.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 Chap.VII of the Presidency Small Cause Courts Act. Apart from that consideration, the question still remains: What does the word "decree" in S.18(1) meant? That word has not been defined either in the 1948 Act or in Act. 17 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 (S.26 and O. 4, R. 1, CPC). This is the ordinary accepted meaning of the word "decree" and if that meaning is attributed to the word "decree" occurring in S.18(1) then clearly it cannot cover an order for possession passed under S.43 of the Presidency Small Cause Courts Act on an application made under S.41 of that Act.8. It is, however, urged that the word "decree" in S.18(1) of Act 17 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-sec(1) of S.12 of Act 17 of 1950, which expressly provides that in the proviso to sub-s.(1) the term "suit " does not include proceeding under Chap.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 17 of 1950 may include a proceeding under Chap.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-sec(1) of S.18 of Act 17 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 S.12 (1) of Act 17 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 Chap.VII of the presidency Small Cause Courts Act. S.12(1) prohibits the making of any order or decree for the recovery of possession by any Court, notwithstanding anything to the contrary in any other Act or Law. This sub-s.(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-see. (l), 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-s.(1) of S.12 does not save proceedings under Chap.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 Chap.VII of the Presidency Small Cause Courts Act appears to have been inserted out of abundant caution to put the position beyond any doubt.S.16 of Act 17 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 sch. B and that no other Court shall be competent to entertain or try such suit. According to Sch. 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 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 S.12 and 16 read with Sch. B is for all practical purposes to suspend the operation of Chap.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 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. 500. Thus after Act 17 of 1950 came into force the Calcutta Small Cause Court has ceased to have any power to pass an order for possession under. Chap.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-s. (1) of S.12 and with regard to which a special jurisdiction is conferred on that Court by S.16 of that Act. That being the position, the word "suit" in none of the sections of Act 17 of 1950 can be said to have been used as including a proceeding under Chap.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 S.18(1) cannot be sustained.9. 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 S.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 S.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 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 grounds specified 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 possession of the premises get no relief under S.18 (1) An order for possession is made by the Presidency Small Cause Court under S.43 on a summary application under S.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 S.37 of the Presidency Small Cause Courts Act is final and conclusive and from which there is no appeal or a new trial under S.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 Chap.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 17 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 Commr. for Special Purposes of Income tax v. Pemsel, (1891) A. C. 531 (G), that it is not competent to any court to proceed upon the assumption that the Legislature 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, 6 Moo. P. C. 1 (H), aid the Legislatures 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 casus omissus, it is, as said by Lord Russel of Killowen in Hansraj Gupta v. Dehra Dun Mussoorie Electric Tramway Co. Ltd., AIR 1933 P. C. 63 (1), 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.10. Reference was made, in course of argument, to S.6 of the West Bengal Act 62 of 1950. That Section refers to orders or decrees made between the commencement of Act 17 of 1950 and Act 62 of 1950, i.e., between 30-3-1950 and 30-11-1950 and cannot have any application to the order for possession made in this case on 27-2-1950.

Decision:
1[ds]9. 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 S.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 S.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 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 grounds specified 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 possession of the premises get no relief under S.18 (1) An order for possession is made by the Presidency Small Cause Court under S.43 on a summary application under S.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 S.37 of the Presidency Small Cause Courts Act is final and conclusive and from which there is no appeal or a new trial under S.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 Chap.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 17 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.