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1948 DIGILAW 164 (CAL)

Gangaram Bhar v. Santosh Kumar Mitra

1948-08-06

body1948
JUDGMENT Harries, C.J. - This is a petition for revision of an order made by a learned Small Causes Court Judge under sec. 47 of the Presidency Small Cause Courts Act, staying certain proceedings which had been instituted by a landlord under sec. 41 of the Presidency Small Cause Courts Act. The landlord had instituted proceedings under see. 41 of the Presidency Small Cause Courts Act against the tenant and had not made the Opposite Party No. 2 who was a sub-tenant a party to the proceedings. Thereupon, the sub-tenant applied under sec. 47 of the Act for stay of the proceedings. On behalf of the land-lord it was contended that sec. 47 could have no application to a sub-tenant who was not a party to the proceedings for the recovery of possession. The Court, however, held that sec. 47 was framed wide enough to cover an application for stay by a sub-tenant who was not a party to the proceedings for the recovery of possession. It is from that order that the present petition has been preferred. The landlord had brought his proceedings in the Small Cause Court under sec. 41 of the Presidency Small Cause Courts Act. That section is in these terms :-- When any person has had possession of any immoveable property situate within the local limits of the Small Cause Court's jurisdiction and of which the annual value at a rack-rent does not exceed two thousand rupees, as the tenant or by permission of another person or of some person through whom such other person claims, and such tenancy or permission has determined or been withdrawn, and such tenant or occupier or any person holding under or by assignment from him (hereinafter called the occupant) refuses to deliver up such property in compliance with a request made to him in this behalf by such other person. such other parson (hereinafter called the applicant) may 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. 2. It will be seen from the third paragraph of this section that a tenant or occupier or any person holding under or by assignment from him may be called "the occupant" for the purposes of the following provisions of the Act. 3. 2. It will be seen from the third paragraph of this section that a tenant or occupier or any person holding under or by assignment from him may be called "the occupant" for the purposes of the following provisions of the Act. 3. Sec. 47 of the Act is in these terms: Whenever on an application being made u/s 41 the occupant binds himself, with two sureties, in bond for such amount as the Small Cause Court thinks reasonable, having regard to the value of the property and the probable costs of the suit next hereinafter mentioned, to institute without delay a suit in the High Court against the applicant for compensation for trespass and to pay all the costs of such suit in case he dose not prosecute the same or in case judgment therein is given for the applicant, the Email Cause Court shall stay the proceedings on such application until such suit is disposed of. If the occupant obtains a decree in any such suit against the applicant, such decree shall supersede the order (if any) made u/s 43. Nothing contained in section 22 shall apply to suits under this section. 4. On behalf of the Opposite Party it is contended that the word "occupant" in sec. 47 must be given the meaning given to it in the third paragraph of sec. 41. As I have already pointed out, in the third paragraph of that section a tenant or occupier or any person holding under or by assignment from him may be called "the occupant." What is contended is that the word "occupant" in sec. 47 must bear the same meaning and will include the tenant or occupier or any person holding under or by assignment from him. It is clear that a sub-tenant is a person holding under a tenant and may be the occupant, as explained in the third paragraph of sec. 41. That being so, it is urged on behalf of the opposite Party that as a sub-tenant may be the occupant, he can apply under sec. 47 for a stay upon the conditions imposed under that section. It is contended that the word "occupant" must be given the same meaning throughout the statute and as it has a particular meaning in the third paragraph of sec. 41, it must have the same meaning in sec. 47. 5. 47 for a stay upon the conditions imposed under that section. It is contended that the word "occupant" must be given the same meaning throughout the statute and as it has a particular meaning in the third paragraph of sec. 41, it must have the same meaning in sec. 47. 5. It appears to me that there is a clear fallacy in this argument. Sec. 41 provides for a summary procedure to eject persons in possession of property where the annual value at a tack-rent of such property does not exceed Rs. 2,000. In order to obtain possession, the tenancy or license must be determined or withdrawn and there must be a request made to the tenant or licensee or persons claiming thereunder to deliver up possession and that request must be refused. In such event, it is provided by the last paragraph of sec. 41 that the applicant, namely, the landlord, may 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 he compelled to deliver up the property. It appears to me that in this fourth paragraph of sec. 41 "the occupant " refers to the person who has actually been asked to deliver up possession and has refused to do so. That necessity for a request to deliver up possession is contained in the third paragraph of sec. 41 and it is clear that the person who is to be proceeded against under the fourth paragraph of the section is the person who has been requested to deliver up possession and has refused do so. It is clear from the third paragraph of sec. 41 that such person may either be the tenant or occupier or any person holding under or by assignment from him. But whoever is proceeded against must be the person who has been requested to give up possession and has refused to do so. It is that person who is to be the Defendant in the proceedings as contemplated by the fourth paragraph of sec. 41. If the argument for the Opposite Party is to be accepted, then the word "occupant" in the fourth paragraph of sec. 41 would include the tenant, the occupier or any person holding under or by assignment from him. It is that person who is to be the Defendant in the proceedings as contemplated by the fourth paragraph of sec. 41. If the argument for the Opposite Party is to be accepted, then the word "occupant" in the fourth paragraph of sec. 41 would include the tenant, the occupier or any person holding under or by assignment from him. But quite obviously when the two paragraphs are read together, "occupant" is the person who has been called upon to deliver up possession and has refused to do so. 6. The word also appears in sec. 42 which provides that a summons shall be served on the occupant in the manner provided by the CPC for the service of a summons on a Defendant. 7. The learned Advocate for the Opposite Party has to concede that the term "occupant " in this section must mean the person who has been made Defendant in the proceedings instituted under sec. 41. It is upon him that the summons must be served. 8. Again, in sec. 43 the word " occupant " appears. The section opens with these words: "If the occupant does not appear at the time appointed and show cause to the contrary," etc. Clearly the term " occupant " in this section means the person who has been served with a summons under sec. 42 and, as I have already stated, that person is the person who was made the Defendant to the proceedings instituted under sec. 41. It is, therefore, clear that in these sections the term " occupant " does not include the four classes of persons mentioned in the third paragraph of sec. 41. The term, as used in these later sections, merely means the person who has been requested to deliver up possession and has refused to do so and has been made a Defendant in the proceedings brought under sec. 41. 9. The same term appears in sec. 47 and though the learned Advocate for the Opposite Party agrees that the term when used in the fourth paragraph of sec. 41 and secs. 42 and 43 means the person against whom the proceeding is brought, he contends that when the same term is used in sec. 47, it has a wider meaning. In other words he contends that in sec. 47 "occupant" may mean any of the persons mentioned in the third paragraph of sec. 41 and secs. 42 and 43 means the person against whom the proceeding is brought, he contends that when the same term is used in sec. 47, it has a wider meaning. In other words he contends that in sec. 47 "occupant" may mean any of the persons mentioned in the third paragraph of sec. 41, whether they have been made parties to the proceeding or not. In short, he contends that where a tenant only has been made a Defendant, a sub-tenant, being the occupant, may apply for a stay. 10. It appears to me that the word " occupant " in sec. 47 must have the same meaning as it has in the last paragraph of sec. 41 and in secs. 42 and 43, namely, the person who has refused to deliver up possession when requested to do so, and who has been made a Defendant in the proceedings under sec. 41. To give the term a wider meaning would be to allow persons not parties to a proceeding to move to have it stayed. Further, it appears to me that the second paragraph of sec. 47 makes it clear that the term " occupant " in that section must mean the person against whom the proceedings are brought. That paragraph is in these terms: If the occupant obtains a decree in any such suit against the applicant, such decree shall supersede the order (if any) made u/s 43. 11. If the term " occupant " covers persons other than those made Defendants in the proceedings in the Small Causes Court, then a very strange result would follow, namely, that the decree in a suit between, for example, a sub-tenant and the landlord, would supersede an order made between the landlord and the tenant, though the sub-tenant was never a party to those proceedings. I can understand the legislature providing that a decree obtained in the High Court would supersede an order in the Small Causes Court, if the proceeding in the High Court were between the same parties as the proceeding in the Small Causes Court. It would indeed be a very strange result if a decree in a suit between parties in the High Court would supersede an order of the Small Causes Court made in proceedings between different parties. On the other hand, if the term " occupant " in sec. It would indeed be a very strange result if a decree in a suit between parties in the High Court would supersede an order of the Small Causes Court made in proceedings between different parties. On the other hand, if the term " occupant " in sec. 47 means the person actually proceeded against, then the second paragraph of sec. 47 follows naturally. Such a person would be allowed to bring proceedings in the High Court and naturally if such proceedings were successful, they would supersede an order made by an inferior Court, namely, the Small Causes Court. 12. It was urged on behalf of the Opposite Party that unless the term " occupant " in sec. 47 is construed to include sub-tenants and persons claiming through or under tenants, then such persons would have no remedy if the application under sec. 41 was made by the landlord against the tenant alone. It was urged that an order against the tenant would bind the sub-tenant and that he would be liable to be ejected, though he had had no opportunity to place his case before the Court. That was urged as a reason for construing the term " occupant " in sec. 47 as including not only the person against whom proceedings were brought, but also the persons claiming through or under such person. This argument appears to me entirely to overlook the provisions of secs. 46 and 49 of the Act which give remedies to persons who are aggrieved, As sec. 46 provides: Nothing herein contained shall be deemed to protect any applicant obtaining possession of any property under this Chapter from a suit by any person looming himself aggrieved thereby, when such applicant was not at the time of applying for such order as aforesaid entitled to the possession of such property. 13. And when the applicant was not, at the time of applying for any such order as aforesaid, entitled to the possession of such property, the application for such order, though no possession is taken thereunder, shall be deemed to be an act of trespass committed by the applicant against the occupant. 14. It is clear that the term "any person deeming himself aggrieved " is wide enough to cover a sub-tenant or any person claiming through a tenant or through an occupier or licensee and he has a remedy given by sec. 46. 14. It is clear that the term "any person deeming himself aggrieved " is wide enough to cover a sub-tenant or any person claiming through a tenant or through an occupier or licensee and he has a remedy given by sec. 46. Of course if an order had already been made under sec. 41, different considerations would apply to a suit at that stage against a sub-tenant. 15. Sec. 49 provides: Recovery of the possession of any immovable property under this Chapter shall be no bar to the institution of a suit in the High COURT for trying the title thereto. 16. That also would give any person "aggrieved" a right to file a title suit at any time. That being so, it is clear that even if the meaning contended for by the Petitioner is given to the term "occupant" in sec. 47, a sub-tenant or any person claiming through a tenant or occupier is not without remedy. There is, therefore, no force in that contention put forward by the Opposite Party. Further it must be remembered that in construing statutes, the words only must be regarded. The fact that the natural construction of words may produce somewhat unfortunate results is no reason for giving the words a meaning other than their natural meaning. 17. In the third paragraph of sec. 41, various classes of persons are potential occupants and thereafter when the word "occupant" is used, it means the one person out of those classes who has been made a Defendant in the proceedings brought. Unless such a meaning is given to the term "occupant" in the last paragraph of sec. 41 and the succeeding sections those sections will become meaningless. 18. For these reasons I am satisfied that the order of the learned Small Causes Court Judge staying the proceedings in that Court pending the High Court proceedings was not in accordance with law and that being so, this Rule must be made absolute. The order for stay will he set aside and the proceedings must continue in the Court below according to law. 19. We make no order as to costs in this Rule. Chakravartti, J. I entirely agree and I have nothing to add.