Prasanta Kumar Ray v. Girindra Chandra Basu — 1949 DIGILAW 339 (CAL)

JUDGMENT Sen, J. - This Rule has been obtained by the landlord against an order of Sri S. M. Chatterji, Munsif, Second Court, Sealdah, rescinding a decree passed in favour of the landlord for ejectment of the Defendant. The order passed by the learned Munsif purported to be one u/s 18 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, which I shall hereafter refer to as the Act. 2. The facts which need be stated for the purposes of this Rule briefly are as follows : On August 11, 1945, the landlord instituted a suit against the opposite party for ejectment on the ground that he was a defaulter. A decree was passed by the learned Munsif on March 18, 1948, ejecting the Defendant. Against this decree there was an appeal taken to the District Judge who upheld the decree and dismissed the appeal on July 20, 1948. There was a Second Appeal to this Court and on December 10, 1948, the decree for ejectment was upheld, but there was a variation in the decree, this Court giving the opposite party time, till February 28 to vacate the premises. There was no such order passed by the courts below. 3. The present Act, namely, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, came into force on December 1, 1948 and the opposite party made the application u/s 18 of the aforesaid Act sometime in February, 1949, for rescinding the decree. The application was made to the Munsif. The contention of the opposite party before the learned Munsif was that by reason of the provisions of Sections 18 and 12(1)(b) of the aforesaid Act the opposite party was entitled to get the decree rescinded, because such a decree could not have been passed if the aforesaid Act had been in force at the date of the making of the decree. The Munsif accepted this contention and rescinded the decree; on appeal the order of the Munsif was upheld on the ground that no appeal lay. 4. The Munsif accepted this contention and rescinded the decree; on appeal the order of the Munsif was upheld on the ground that no appeal lay. 4. The landlord has obtained this Rule and four points have been urged on his behalf which I proceed to set forth below: (i) Although the trial court passed a decree in ejectment on (March 18, 1948, when the aforesaid Act was not in force, that decree was appealed from and finally the High Court passed its decree on December 10, 1948, after the Act came into operation. u/s 18 of the aforesaid Act, only decrees made before the commencement of the Act may be rescinded. The decree passed by the High Court, having been made after the commencement of the Act, it is not liable to be rescinded u/s 18 of the Act. (ii) The application for rescinding the decree was made in the Munsif's court. The Munsif's court had no jurisdiction to entertain the application, because the application can be granted only by the court by which the decree was made and this decree was made by the High Court and not by the Munsif's court. (iii) Section 12(1)(b) of the aforesaid Act cannot help the Defendant, because it cannot cure the default in payment of rent already committed by the Defendant. (iv) The decree is a vested right and cannot be taken away by the aforesaid Act. 5. I shall now consider these contentions. The first point to be determined is this : What decree is the tenant seeking to rescind? Learned advocate for the Petitioner says that there can only be one answer to this question and that is that the decree passed by the High Court on December 10, 1948, is sought to be rescinded. Learned advocate appearing for the tenant says that the decree sought to be rescinded is really the decree passed by the Munsif, which is still in existence, because the decree passed by the High Court was in affirmance of the decree. In my opinion, the contention on behalf of the Petitioner must prevail. The decree of the Munsif's court ceased to exist when the decree of the High Court was passed. I have held this view in the case of Narendra Nath Bhattacharjya v. Suresh Chandra Chakrabarti (1949) CRC. In my opinion, the contention on behalf of the Petitioner must prevail. The decree of the Munsif's court ceased to exist when the decree of the High Court was passed. I have held this view in the case of Narendra Nath Bhattacharjya v. Suresh Chandra Chakrabarti (1949) CRC. 601 of 1949 decided on July 8 relying upon the well-known Full Bench decision of this Court in the case of Ram Charan Bysak v. Lakhi Kant Bannik (1871) 7 B.L.R. 704 and I see no reason to alter my view. At p. 714, Mitter J. makes the following observations: Whether the decree of the appellate Court is for reversing or for affirming the decree against which the appeal is preferred, it is, in either case, the final decree in the cause and as such the only decree which is capable of being enforced by execution, after it is once pronounced. If the decree of the lower court is reversed by the appellate court, it is absolutely dead and gone. If, on the other hand, it is affirmed by the appellate court, it is equally dead and gone, though in a different way, namely, by being merged in the decree of the superior court, which takes its place for all intents and purposes. 6. How, in the face of this decision, it can be contended that the Munsif's decree is still alive is difficult to appreciate. It was argued on behalf of the opposite party that the Full Bench decision related to the question of the period of limitation for the execution of a decree and that the law laid down there has no application to the present case. I can see no force in this contention. The specific point raised and decided was whether a decree passed by a trial court had any existence after the final decree was passed by the appellate court deciding an appeal therefrom and it was held that the previous decree was dead. The point which arises in this case is precisely the same. Learned advocate for the Petitioner further pointed out that the decree passed by the High Court varied the decree passed by the trial court, inasmuch as it gave the tenant further time to vacate the premises and that this was an additional ground for holding that the Munsif's decree was no longer alive. I do not think that this variation really matters. I do not think that this variation really matters. In view of the clear and specific language used in the Full Bench decision already referred to, whether the appellate court affirms or reverses the decree of the lower court, that decree of the lower court ceases to exist. In these circumstances, I am of opinion that the decree of the learned Munsif passed on March 18, 1948, is dead and gone and therefore there is nothing to rescind so far as that decree is concerned. The application for rescission must consequently relate to the decree passed by the High Court on December 10, 1948. As was pointed out before, Section 18 of the aforesaid Act applies only to decrees passed before the commencement of the Act. The words are as follows: Where any decree or order for the recovery of possession of any premises has been made, before the date of commencement of this Act, but the possession of such premises haand not been recovered, etc. 7. It is quite clear that only decrees made before the commencement of his Act can be rescinded u/s 18. Learned advocate for the opposite party contends that, even if it be held that the decree sought to be rescinded is the decree of the High Court, it should be held that that decree is notionally a decree passed not on the date on which it was passed by the High Court but on the date on which the Munsif passed it. I do not see why the court should perform mental acrobatics of this sort in construing a statute. The ordinary rule of construction is to give the words of an Act their ordinary grammatical meaning and I propose to follow that safe and general rule of construction. I realise that if two meanings are possible, the one which would give the Act effect should be preferred to the one which makes the, Act ineffective. This contingency does not arise here. The legislature has said that decrees made before the commencement of this Act may be rescinded. The legislature may have very good reasons for not passing a law regarding decrees made after the commencement of this Act. It is not for the court to speculate or to amend or to improve legislation. We are to carry out the provisions of a statute as they stand according to well known principles of interpretation. The legislature may have very good reasons for not passing a law regarding decrees made after the commencement of this Act. It is not for the court to speculate or to amend or to improve legislation. We are to carry out the provisions of a statute as they stand according to well known principles of interpretation. I can see no reason whatever for holding that the words "a decree made "before the commencement of this Act" mean a decree made after the commencement of the Act. On this ground alone the application of the Defendant should fail. 8. I now take up for consideration the second ground. The principles upon which the first ground has been dealt with would to some extent apply to the second point raised. Section 18 of the Act says "the court by which the decree or order was made" may rescind or vary the decree. Now, I have held that the decree sought to be rescinded is the decree made by the High Court; it is not the decree made by the Munsif. It is, therefore, the High Court alone which has the power to rescind the decree. Here, again, I am asked to hold the view that notionally the decree passed by the High Court must be taken to be a decree passed by the Munsif. The words "the court by which the "decree or order was made" are perfectly simple words and there is no reason for contorting their meaning. In this connection I was referred to Section 37 of the Code of Civil Procedure. There it has been laid down that for the purposes of execution the expression "the court which passed the decree" shall be deemed to include the court of first instance even when the decree to be executed has been passed by a court in the exercise of its appellate jurisdiction. As I pointed out in the case of Narendra Nath Bhattacharjya v. Suresh Chandra Chakrabarti (supra) the ordinary grammatical meaning of the phrase "the court "which made the decree" would be the final court by which the decree was made. If the words "the court which made the "decree" could normally be considered to mean the court of first instance, although the decree was passed by an appellate court, Section 37 of the CPC would not have been necessary. If the words "the court which made the "decree" could normally be considered to mean the court of first instance, although the decree was passed by an appellate court, Section 37 of the CPC would not have been necessary. I still adhere to my view that the court which made the decree where there has been an appeal is the final appellate court. In this case it was the High Court. The Munsif, therefore, had no jurisdiction to vary the decree. 9. As regards the other two points raised I am of opinion that it is really not necessary for me to consider them in detail, inasmuch as the application of the tenant must fail by reason of the view held by me regarding the first two points. I would say, however, that I am in agreement with the decision of Banerjee J. in the case of Hanutmal Boid v. Federation Bank of India, Ltd., (1948) OSS. 2020 of 1947 decided on Dec. 20 and I agree with the view that Section 12(1)(b) of the Act would not help the tenant. 10. In these circumstances I set aside the order passed by the learned Munsif and make this Rule absolute with costs.