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

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 asOn 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 furtheragreed amount having been paid the order for possession was vacated on 4-7-1950. The order as recorded in the order sheet reads as followsParties 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 Money in Court is allowed to be withdrawn by the plaintiffs pleader underappellant on 1-3-1950 moved the High Court under S.115, Civil P.C., for setting aside the order of the Trial Court passed on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."

Reasoning:
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.