Case: Kanai Lal Sur Vs. Paramnidhi Sadhukhan

by a Court of competent jurisdiction and to insist upon its execution. Similarly the proceedings contemplated by S. 5, sub-s. (1) cannot, in our opinion be said to include execution proceedings of this type. Section 5, sub-s. (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 S.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 S.5, sub-s. (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 S. 5, sub-s. (1), notice is ordered to be issued to the thika tenant and enquiry follows in the light of the provisions of S.3. It is only if the Controller is satisfied that one or more of the grounds recognized by S.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 promises.Section 5, sub-s. (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. 8. Mr. Chatterjee, however, suggests that the deletion of the words "subject to the provisions of S. 28" which originally occurred in S. 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 S. 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 S. 28 along with S. 29 has been deleted from the Act by the subsequent amending Act VI of 1953, any reference to S.28 in S. 5 (1) would have been entirely out of place.But the deletion of the material words does not enlarge the 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 S. 5, sub-ss. (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 S. 5; sub-s. (1). 9. 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 Ss. 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, S. 28 purported to give protection to judgment-debtors 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 though prudent to limit the protection to such judgment-debtors in the manner contemplated by S. 5, sub-s. (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 S. 5, sub-s. (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 S. 5, sub-s. (1) as amended. It may be unfortunate that owing to the steps that he was taking in several proceedings adapted by him in the present litigation he was probably not advised to make a proper application under S. 5, sub-s. (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 S. 28 of Act II of 1949 but the deletion of S. 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 S. 5, sub-s. (1) is corroborated by the deletion of S. 28 from the Act and by the provision of S. 5, sub-S. (2) of the amending Ordinance of 1952 and S. 9 of the amending Act VI of 1953. We must, accordingly, hold that the Calcutta High Court was right in rejecting the appellants argument that civil Courts had no jurisdiction to entertain the execution petition filed by the respondent against the appellant.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is clear that since S. 28 along with S. 29 has been deleted from the Act by the subsequent amending Act VI of 1953, any reference to S.28 in S. 5 (1) would have been entirely out of place.But the deletion of the material words does not enlarge the 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 landlordsIt 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 S. 28 of Act II of 1949 but the deletion of S. 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 S. 5, sub-s. (1) is corroborated by the deletion of S. 28 from the Act and by the provision of S. 5, sub-S. (2) of the amending Ordinance of 1952 and S. 9 of the amending Act VI of 1953We must, accordingly, hold that the Calcutta High Court was right in rejecting the appellants argument that civil Courts had no jurisdiction to entertain the execution petition filed by the respondent against the appellant.