Amar Chandra Roy v. Susanta Kumar Sen — 1968 DIGILAW 232 (CAL)

JUDGMENT 1. THIS is an appeal by the defendants appellants in a suit instituted by the plaintiff respondent for eviction of the appellants from the suit premises. The plaintiff respondent filed on April 7, 1964, the suit being Title Suit No. 147 of 1964 which on transfer was renumbered as Title Suit No. 389 of 1964 and was heard by the learned Munsif, Second Additional court at Alipore. The allegations were that the appellant No. 1 was a tenant in the suit premises held at a monthly rent of Rs. 65/- payable according to English calender month. The said appellant having defaulted in payment of rent and being in arrears since September, 1963, the tenancy was determined by a notice to quit. The appellant No. 2, who is a brother of the appellant No. 1, was made a party in. the suit to meet a possible defence that, he was the tenant as the rent in respect of the suit premises had been paid for sometime past by him on behalf of the appellant No. 1. A decree for khas possession on eviction of the appellants form the suit premises and for mense profits was prayed for accordingly. 2. THE appellants filed a joint written statement denying the material allegations in the plaint and contended inter alia that the suit was not maintainable, that the respondent had no right to sue, that the appellant No. 1, who was the tenant, was not a defaulter in payment of rent and that he should be deemed to be a direct tenant as the superior landlords had instituted a suit for eviction of the respondent from 6, Hindustan Road, Calcutta which included the suit premises. It appears that the respondent filed an application on July 14, 1964 under section 17 (3) of the West Bengal premises Tenancy Act, 1956 (hereinafter referred to as the principal Act) praying for an order for striking out the defence of the appellants against the delivery of possession. The appellants filed a written objection to the same. On November 16, 1964 the said application was allowed exparte and the defence of the appellants against the delivery of possession was struck out. Thereafter the suit was heard on December 4, 1964 when it was decreed exparte. 3. The appellants filed a written objection to the same. On November 16, 1964 the said application was allowed exparte and the defence of the appellants against the delivery of possession was struck out. Thereafter the suit was heard on December 4, 1964 when it was decreed exparte. 3. AGAINST the said decree the appellant preferred an appeal being Title appeal No. 3 of 1965 which was heard by the learned Additional District judge, Ninth Court, Alipore and was dismissed by judgment and decree dated March 26, 1965. Against the said decision the appellants on May 17, 1965 have preferred this appeal which has now come up for hearing. 4. DURING the pendency of this appeal, the West Bengal Premises Tenancy (Amendment) Ordinance, 1967 (West Bengal Ordinance VI of 1967) (hereinafter referred to as the First ordinance) came into force on August 26, 1967 whereby the principal Act was amended. The West Bengal Premises tenancy (Amendment) Second ordinance (West Bengal Ordinance No. II of 1968) (hereinafter referred to as the second Ordinance) containing almost similar provisions as in the First Ordinance came into force on January 8, 1968. By this Ordinance, the First Ordinance was repealed and it was further provided that notwithstanding such repeal, any order made, thing done, action taken or obligation or liability incurred under the principal Act as amended by the First Ordinance shall be deemed to have been validly made, done, taken or incurred under the principal Act as amended by the Second ordinance as if this Ordinance were in force on the day on which such order was made, such thing was done, such action was taken or such obligation or liability was incurred. The West bengal Premises Tenancy (Amendment) Act. 1968, President's Act IV of 1968 (hereinafter referred to as the amendment Act of 1968) was published in Calcutta Gazettee on March 26, 1968 and it was provided in section 1 (2)thereof that it should be deemed to have come into force on August 26, 1967. The West bengal Premises Tenancy (Amendment) Act. 1968, President's Act IV of 1968 (hereinafter referred to as the amendment Act of 1968) was published in Calcutta Gazettee on March 26, 1968 and it was provided in section 1 (2)thereof that it should be deemed to have come into force on August 26, 1967. By this Amendment Act of 1968, the principal Act was amended and the Second Ordinance, 1968 was repealed subject to the proviso that notwithstanding such repeal, anything done or any action taken (including any order made, proceeding commenced or obligation incurred) or deemed to have been done or taken under the principal Act as amended by the Second ordinance shall continue to be in force and shall be deemed to have been done, taken, made, commenced or incurred as the case may be under the principal Act as amended by the amendment Act of 1968. The relevant provisions of the said Ordinances and of the Amending act of 1968 are as follows : i. The West Bengal Premises tenancy (Amendment) Ordinance, 1967, west Bengal Ordinance No. VI of 1967 : 4. Insertion of new sections 17b, 17c.-after section 17a of the said Act, the following sections shall be inserted, namely-17b. Power of Court to set aside order striking out defence against delivery of possession.- (1) Where in a suit pending at the date of commencement of the west Bengal Premises Tenancy (Amendment) Ordinance, 1967, the defence against delivery of possession was struck out by a order made under sub-section (3) of section 17 before such date, the tenant may, within thirty days from such date, make an application to the Court to set aside such order. 17c. Power of Court to set aside decree in cases where defence against delivery of possession struck out.- (1)Where a decree for the recovery of possession of any premises was passed before the commencement of the West bengal Premises Tanancy (Amendment) Ordinance, 1967, in a suit in which the defence against delivery of possession was struck out by an order under sub-section (3) of section 17, but the possession of such premises has not been recovered from the tenant by the execution of such decree, the tenant may, within a period of sixty days from the commencement of the west Bengal Premises Tenancy (Amendment) Ordinance, 1967, make an application to the Court which passed such decree to set aside such decree. Explanation.- Where such decree has been passed in the exercise of appellate jurisdiction, an application under this sub-section shall be made to the Court of first instance. II. The West Bengal Premises tenancy (Amendment) Second ordinance, 1968, West Bengal Ordinance No. II of 1968. 4. Insertion of new sections 17b, 17c and 17d - After section 17a oil the said Act, the following sections shall be inserted, namely- "17b. Power of Court to set aside order striking out defence against delivery of possession.- (1) Where in a suit pending at the date of commencement of the west Bengal Premises Tenancy (Amendment) Ordinance 1967, west Bengal Ordinance VI of 1967, the defence against delivery of possession was struck out by an order made under sub-section (3) of section 17 before such date, the tenant may, within thirty days from such date, make an application to the Court to set aside such order. 17c. Power of Court to set aside decree in cases where defence against delivery of possession struck out.- (1)Where a decree for the recovery of possession of any premises was passed before the commencement of the West bengal Premises Tenancy (Amendment) Ordinance, 1967, West Bengal ordinance VI of 1967, in a suit in which the defence against delivery of possession was struck out by an order under sub-section (3) of section 17, but the possession of such premises has not been recovered from the tenant by the execution of such decree, the tenant may, within a period of sixty days from the commencement of the West Bengal premises Tenancy (Amendment) Ordinance, 1967, make an application to the Court which passed such decree to set aside such decree. Explanation.- Where such decree has been passed in the exercise of appellate jurisdiction, an application under this sub-section shall be made to the Court of first instance. 5. REPEAL and savings.- (1) The west Bengal Premises Tenancy (Amendment)Ordinance, 1967, West Bengal ordinance VI of 1967, is hereby repealed. Explanation.- Where such decree has been passed in the exercise of appellate jurisdiction, an application under this sub-section shall be made to the Court of first instance. 5. REPEAL and savings.- (1) The west Bengal Premises Tenancy (Amendment)Ordinance, 1967, West Bengal ordinance VI of 1967, is hereby repealed. (2) Notwithstanding such repeal, and order made, thing done, action taken, or obligation or liability incurred under the said Act as amended by the West Bengal Premises Tenancy (Amendment) Ordinance, 1967 shall be deemed to have been validly made, done, taken or incurred under the said act as amended by this Ordinance as if this Ordinance were in force on the day on which such order was made, such thing was done, such action was taken or such obligation or liability was incurred. III. The West Bengal Premises tenancy (Amendment) Act, 1968, President's Act 4 of 1968. (1) Short title and commencement.- (1) This Act may be called the west Bengal Premises Tenancy (Amendment) Act, 1968. (2) It shall be deemed to have come into force on the 26th day of august, 1967. (3) Substitution of new sections [for section 17a.- for section 17a of the principal Act, the following sections shall be substituted, namely- 17a. Power of Court to set aside order striking out defence against delivery of possession.- (1) Where in a suit pending at the date of commencement of the West Bengal Premises Tenancy (Amendment) Act, 1968, the defence against delivery of possession was struck out by an order made under sub-section (3) of section 17 before such date, the tenant may, within a period of thirty days from such date make an application to the Court which made such order to set aside such order. 17b. Power of Court to set aside decree in cases where defence against delivery of possession struck out.- (1)Where a decree for the recovery of possession of any premises was passed before the commencement of the West bengal Tenancy (Amendment) Act, 1968, in a suit in which the defence against delivery of possession was struck out by an order under sub-section (3)of section 17, but the possession of such premises has not been recovered from the tenant by the execution of such decree, the tenant may, within a period of sixty days of such commencement, make an application to the Court which passed such decree to set aside such decree. Explanation.-Where such decree has been passed in the exercise of appellate jurisdiction, an application under this sub-section shall be made to the court of first instance. 6. Repeal and Saving.- (1) The west Bengal Premises Tenancy (Amendment)Second Ordinance, 1968, West bengal Ordinance II of 1968, is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken (including any order made, proceeding commenced, obligation or liability incurred), or deemed to have been done or taken, under the principal Act as amended by the said Ordinance shall continue to be in force and shall be deemed to have been done, taken, made, commenced or incurred, as the case may be, under the principal Act as amended by this Act. 7. On September 15, 1967 the appellants filed an application in this court under section 17b (1) of the First Ordinance praying for an order restoring the defence which was struck out and to direct the aforesaid Title Suit No. 389 of 1964 in the Court of the Second additional Munsif, Alipore to be reheard and for such further or other order as may be deemed fit and proper. It was stated in the application that in view of the provision of section 17b (1) of the first Ordinance which was inserted in the principal Act, the appellants were entitled to a restoration of their defence in the said title suit. The respondent filed an affidavit-in-opposition contending that the application was misconceived and incompetent and further the appellants were not entitled to succeed even upon restoration as prayed for. The appellants filed an affidavit-in-reply reiterating their contentions and also stated that in pursuance of the order in civil Rule No. 1735 (S) of 1965, all arrears of "rent" have been deposited in the court below and the current "rent" upto the month of October, 1966 have also been deposited. A supplementary affidavit was filed on behalf of the respondent stating that another application purporting under section 17c (1) of the First Ordinance had been filed in the trial court by the appellants on September 30, 1967 claiming identical reliefs and further that the appeal filed by the superior landlords against the decree dismissing their suit for eviction of the respondent and his subtenants was also in the meantime dismissed by the District Judge, Alipore on April 26, 1967. 6. MR. 6. MR. Sudhangshu Bhusan Sen, the learned Advocate appearing for the respondent has contended that the instant application under section 17bl (l) of the principal Act as amended by the first Ordinance is not maintainable for the following reasons : The appellants having since filed a similar application in the trial court claiming identical reliefs, they should not be allowed to move the application in this court when the application before the trial court is pending. Further under the provisions of section 17b (1) of the principal Act as amended by the First ordinance, such application could only be filed in the court which passed the order striking out defence against delivery of possession to set aside such order. The Amendment Act of 1968 having repealed the provisions of the Ordinances, the application for setting aside the order striking out the defence against delivery of possession could only be filed in the court which made such order. In support of his contentions, mr. Sen argued that all relevant provisions contained in Chapter III, Section 13 to Section 20 of the principal Act relate to proceedings in the trial court and accordingly any application made under section 17b (1) of the principal act amended by the First Ordinance could have been made only in the court passing the impugned order. It was also argued that keeping in view the text of the provisions and in the can-text of other provisions it must be held that "the court" always meant the court of the first instance and any provision in the statutes specifically indicating the court where such application is to be moved would in the premises be unnecessary and redundant. Relying on the decision in (1) Indira sohanlal v. Custodian of Evacuee Property, Delhi and ors., AIR 1956 Supreme court 77 (83) and (2) Mahadeolal Kanodia v. Administrator General of West bengal, AIR 1960 SC 936 (939), Mr. Sen argued that the position on the commencement of the Amendment Act of 1968 which is to be deemed to have come into force on August 26, 1967, was that the court which passed the order striking out the defence was the only court entitled to entertain, hear and dispose such application under section 17a (1) of the principal Act as amended. 7. MR. 7. MR. Manindra Nath Ghosh, the learned Advocate appearing for the appellant has submitted that the appeal is a continuation of the suit and the provisions of the principal Act as amended by the First Ordinance were that while the suit was pending on the commencement of the said Ordinance, the tenant could make an application under section 17b (1) thereof within 30 days from the commencement of the First Ordinance "to the court" to set aside such order. Mr. Ghosh contended that the expression "to the court" meant the court where the proceeding at the material time was pending. This, he argued, would be evident from a reference to the explanation to section 17c (1) of the principal Act as amended by the First ordinance which says that if a decree was passed in appellate jurisdiction, the application is to be made in the court of the first instance. Absence of this provision in section 17b (1) of the principal Act as amended by the First ordinance clearly indicated that "the court" meant the court where the matter is pending at the material time. These provisions are in primavera maintained in the Second Ordinance. It will further appear from section 17a (1) of the principal Act as amended by the Amendment Act of 1968 that specific provisions have been made for making such application to the court, which made such order to set aside the same. Mr. Ghosh contends that the reference to relevant sections of the connected statutes will support his contention that in absence of any specific provisions, the application under section 17b (1) of the principal Act as amended by the First Ordinance could only be made in the court where the suit in trial or appellate stage is pending and in the instant case before this court. 8. AS to the application made before the trial court, Mr. Ghosh contended that the said application is not before this court and has no relevance and at best such application would be a misconceived one. Regarding the other contention of Mr. Sen, Mr. Ghosh argued that though the ordinances were repealed the validity of the proceedings already taken under the principal act as amended by the First Ordinance then is force was clearly sustained and kept alive by the subsequent enactments. On a consideration of the respective contentions of the parties, I am. Regarding the other contention of Mr. Sen, Mr. Ghosh argued that though the ordinances were repealed the validity of the proceedings already taken under the principal act as amended by the First Ordinance then is force was clearly sustained and kept alive by the subsequent enactments. On a consideration of the respective contentions of the parties, I am. of opinion that the application filed in this Court under section 17b (1) of the principal Act as amended by the First ordinance is maintainable in law. The application filed in the trial court has no bearing and cannot affect the maintainability of the application here which is being pressed before me. As to the contention of Mr. Sen that the words "the court" referred to in Chapter III of the principal Act as amended is always the trial court or the court which made the order striking out defence or the court of the first instance, it appears that it is not always so. On a scrutiny of the relevant sections of the First and Second Ordinances or of the amending Act of 1968 amending the principal act, it is found that the words "the court" referred to therein, without more, is not necessarily the trial court or the court of the first instance or the court passing the impugned order. When the legislature intended that an application should be heard before a particular court, specific provisions 'have been made therefor. While in section 17b (1) of the principal Act amended by the Ordinances, no provision for a particular court has been made, provisions for hearing of the application before the court of the first instance have been made in section 17c (1) of the principal Act as amended by the ordinances or in section 17b (1) of the principal act as amended by the Amendment Act of 1968, or in sec. 17a (1) of the principal Act as amended by the Amendment Act of 1968 before the court which made such order to set aside the same. In view of the above provisions, in my opinion, it cannot be said that the words "the court", without more, must always mean the court of the first instance or the trial court or the court which passed the impugned order. In absence of any specific provision, accepting Mr. In view of the above provisions, in my opinion, it cannot be said that the words "the court", without more, must always mean the court of the first instance or the trial court or the court which passed the impugned order. In absence of any specific provision, accepting Mr. Ghosh's arguments, it must be held that the present application under section 17b (1)of the principal Act as amended by the First Ordinance will have to be made in the court where the proceeding is pending at the material time. 9. IT is also evident that in view of the pendency of the appeal, there is no final decree in the suit. As has been pointed out by Chatterjee, J. in (3)Mrs. J. Paul v. Calcutta Boys' School, 71 CWN 285 (292), following the decisions ranging from the decision in (4) Ram chandra Bysack v. Luckhee Kant bornick (1871) 16 WR 1 (FB), the final decree in a suit will be the decree of the appellate court and in this instance, the decree of the second appellate court, if and when such appellate court judicially determines the rights of parties. The suit thus in such case as here is pending in the appellate stage in this court and is to be considered so till the decree is passed by this court on judicial determination of the rights of the parties. In absence of specific provisions, such application under the said section will have to be made, in my opinion, in the court where the suit in the appellate stage is, for the time being, pending and is to be dealt with in accordance with the provisions of the said section but for the repeal as discussed hereafter. Accordingly section 17b (1) of the principal Act as amended by the First Ordinance which applies to pending suits, applies to the case and the application filed by the appellants in this court under the said section is maintainable in law and now awaits consideration by this court. 10. Accordingly section 17b (1) of the principal Act as amended by the First Ordinance which applies to pending suits, applies to the case and the application filed by the appellants in this court under the said section is maintainable in law and now awaits consideration by this court. 10. AS to the contentions on repeal, it appears that by section 7 (1) of the second Ordinance, the First Ordinance was repealed, subject however to the provision of section 7 (2) thereof, which provided inter alia that notwithstanding such repeal, any action taken under the principal Act as amended by the first Ordinance shall be deemed to have been validly taken under principal Act as amended by the Second ordinance as if the Second Ordinance were in force on the day such action was taken. In view of the above provisions, the application filed on September 15, 1967 is to be deemed to be a valid application under section 17b (1) of the principal Act as amended by the second Ordinance. Again by section 6 (1) of the amendment Act of 1968, the Second ordinance was repealed subject however to the provision of section 6 (2)thereof which provided inter alia that notwithstanding such repeal, any action taken (including proceeding commenced)or deemed to have been taken under the principal Act as amended by the second Ordinance shall continue to be in force and shall be deemed to have been taken or commenced under the principal Act as amended by the amendment Act of 1968. In view of the above provisions, the application filed on September 15, 1967, now under consideration, which was to be deemed to be an application under the principal act as amended by the Second Ordinance, is now to be deemed to be an application under the principal Act as amended by the Amendment Act of 1968. The decisions cited by Mr. Sen support the above conclusion, in view of the express provisions of the repealing statutes. 11. IT is, however, to be noted that though the validity of the actions taken under the repealed First Ordinance has been maintained lastly by the Amendment act of 1968, the repealing statutes do not provide for continuation of the proceedings under the repealed statutes. Sen support the above conclusion, in view of the express provisions of the repealing statutes. 11. IT is, however, to be noted that though the validity of the actions taken under the repealed First Ordinance has been maintained lastly by the Amendment act of 1968, the repealing statutes do not provide for continuation of the proceedings under the repealed statutes. Any application pending on March 26, 1968, the date of the Amending Act of 1968 was promulgated and published in the Calcutta Gazette has to be disposed of under the provisions of the principal act as amended by the Amendment act of 1968. The application before us, filed on September 15, 1967, has thus to be disposed of under the provisions of section 17a of the principal Act as amended by the Amendment Act of 1968. The section provides that the court which made the order striking out defence against delivery of possession will be the court competent to dispose of the application in accordance with the provisions of section 17a (2), (3) and (4) of the principal Act as amended by the Amendment Act of 1968. The result is that the application filed by the appellants on September 15, 1967 the connected affidavits filed in this court and the records of the case has now to be sent down to the Court of the Second Additional Munsif at alipore which passed the impugned order striking out the defence against delivery of possession, to be disposed of by the said court in accordance with aw 12. THE question now arises as to what procedure is now to be adopted relating to this appeal pending the disposal of the instant application. This decree under appeal was passed after striking out defence against delivery of possession. It will be premature and improper to hear this appeal now, as in view of the order striking out defence against delivery of possession, the tenant was deprived of his right to adduce evidence to establish his case against delivery of possession. If the tenant is found entitled to defend the claim against the claim for delivery of possession, the decree under appeal will lose its force. If otherwise, the appeal will have to be considered on merits. If the tenant is found entitled to defend the claim against the claim for delivery of possession, the decree under appeal will lose its force. If otherwise, the appeal will have to be considered on merits. In that view of the matter, I am of opinion that this appeal should be kept pending till final disposal of the application under section 17b (1) of the principal Act as amended by the First Ordinance and now deemed to be under section 17a (1)of the principal Act as amended by the amendment Act of 1968. After the said application is disposed of, the appeal will come up for hearing. Let the records of the trial court along with the said application and connected affidavits be sent down to the Second Additional Court of the munsif at Alipore immediately for disposal of the application filed in this court on September 15, 1967, now deemed to be under section 17a (1) of the west Bengal Premises Tenancy Act, 1856 as amended by the Amendment act of 1968. After the said application is disposed of finally, let the records be sent up to this court for hearing of the connected appeal in this court. The learned Munsif is directed to hear and dispose of the application expeditiously. Liberty is given to the parties to mention for early hearing of the appeal after the application is disposed of.