Case: Nalinakhya Bysack Vs. Shyam Sunder Haldar &amp; Others

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 = appeal accepted, 0 = rejected): 1

Explanation:
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.