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1977 DIGILAW 64 (CAL)

Shamlal Mazumdar v. M. L. Dalmia

1977-02-22

B.C.Ray, N.C.Mukherji

body1977
JUDGMENT 1. THESE three Rules arise on three applications under Article 227 of the Constitution and are directed against Order dated 21st of August 1975 passed in Miscellaneous Appeal No. 543 of 1974 by Sri P. Dutta;, 6th Additional District Judge, Alipore, acting as an Appellate Authority under the Thika Tenancy Act, setting aside the order dated 18th of June 1973 made by Sri P. K. Mitra, 4th Court of the Munsiff at Alipore, acting as Thika Controller in Miscellaneous T. Case Nos. 148 to 150 of 1959. 2. THE facts of the case may briefly be stated as follows : - The petitioners are thika tenants in respect of small portions of vacant and at premises No. 101, Ashutosh Mukherjee Road, Calcutta. The opposite party by purchase in an auction sale of the landlords' interest became the landlord of the petitioners. After purchase the opposite party instituted proceedings under Section 5 of the Thika Tenancy Act, 1959 for ejectment of the petitioners on the ground of default in payment of rent before the Thika Controller at Alipore. After pausing through various phases due to the several amendments of the Act, the proceeding started in 1959 came up for hearing before Sri P. K. Mitra, 4th Court of the Munsif at Alipore (Thika Tenancy Controller) and disposed of on 18. 6. 73. The learned Controller in view of the order passed by this Court disposed of the case assessing up-to-date arrears less the amount paid under order of the Court. In assessing arrears of rents the learned Controller allowed interest as provided under the Thika Tenancy Act in Section 23 which provides for interest up to the date of the suit i. e. starting of the proceeding for ejectment and as such interest for post-suit arrears was refused. The opposite party being aggrieved by the aforesaid order preferred three appeals under Section 27 of the Act. The learned Additional District Judge allowed the appeals, set aside the order, passed by the learned Munsif. He was of the opinion that he opposite party was entitled to get interest on post suit arrears and remanded the case to the learned Controller for assessing such interest. Being aggrieved by the aforesaid order, the petitioners have come up before this Court. Mr. He was of the opinion that he opposite party was entitled to get interest on post suit arrears and remanded the case to the learned Controller for assessing such interest. Being aggrieved by the aforesaid order, the petitioners have come up before this Court. Mr. Nepal Chandra Roy Chowdhury, learned Advocate appearing on behalf of the petitioners, in the first place, submits that the order of remand passed by the learned Appellate Authority is without jurisdiction, since he was not functioning as Civil Court but as a persona designate and as such he has not all the powers of a Civil Court under the Code of Civil Procedure and his powers are limited to those conferred by the Act, and as the power of remand has not been conferred he acted beyond jurisdiction in passing an order of remand. In support of his contention he refers to the decisions reported in 60 C. W. N. 1032 (Mamata Ghosh and On. v. Mr. Charu Chandra Mandal and anr.) and 62 C. W. N. 148 (Rai Harendra Nath Choudhuri v. Daulatmani chaudhuraini. We agreed with the submission made by Mr. Roy Choudhuri that the Appellate Authority under the Calcutta Thika Tenancy Act is a person designate and not a count within the meaning of the Code as defined in Bengal, Agra and Assam Civil Courts Act and has not got the power of remand. But in this case we find from the order passed by the learned Appellate Authority that he disagreed with the learned Controller on point of law, set aside the said order, allowed interest on post-suit arrears and sent, the cases back only for assessment of such arrears. Thus it is seem that it is simply for the matter of calculation that the cases were sent back. As such we do not think that the order by which the cases were sent back is strictly an order of remand within the meaning of Order 41 Rule 23 of the Code of Civil Procedure. 3. WITH regard to the merits Mr. Roy Chowdhury submits that the learned Appellate Authority overlooked the fact that the proceeding started by the opposite party was one under Section 5 of the Calcutta Thika Tenancy Act for ejectment of the petitioners on the ground of default in payment of rent. 3. WITH regard to the merits Mr. Roy Chowdhury submits that the learned Appellate Authority overlooked the fact that the proceeding started by the opposite party was one under Section 5 of the Calcutta Thika Tenancy Act for ejectment of the petitioners on the ground of default in payment of rent. After the amendment, ejectment on the ground of default in payment of rent is no longer available to the landlord if the tenant pays all arrears of rent and costs, if any, as determined by the Controller within a particular time fixed by the Controller. Section 23 of the Act provides that "any arrear of rent shall bear simple interest at the rate of six and a quarter per centum per annum from the expiry of the time within which the rent of the installment of rent is payable under the provisions of Section 12 or is to be deposited under Section 17 or Section 18, as the case may be, to the date of payment or of the institution of the suit, whichever date is earlier". This being the clear provision of Section 23, Mr. Roy Choudhury submits that the Thika Controller was quite right in awarding interest up to the date of the institution of the suit and the Appellate Authority was wrong in awarding interest on post-suit arrears. Mr. Roy Chaudhury also draws our attention to Section 7a of the Calcutta Thika Tenancy (Second Amendment) Act, 1969 which does not say anything about interest. Section 7 A (2) (b) provides that: "the Controller shall determine the amount which would have been payable by the thika tenant for the period commencing from such date (the date is one on which order for ejectment was made and the Controller is satisfied that no order for ejectment would have been made against the thika tenant even if the Calcutta Thika Tenancy (Second Amendment) Act, 1969 had been in force) and ending with the date of the order to be made under this sub-section and the Controller may allow to the landlord as his costs of the proceeding arising out of the application under sub-section (1) of Section 5 ". This Section does not provide for any interest. Mr. This Section does not provide for any interest. Mr. Roy Choudhury also draws our attention to Section 13 of the Calcutta Thika Tenancy (Second Amendment) Act, 1969 which provides that : "the amendments made to the said Act by this Act shall have effect in respect of all applications for ejectment of thika tenants, and all appeals from orders made on such applications, under the provisions of the said Act which are pending at the commencement of this Act". 4. MR. Biswajit Ghosh, learned Advocate appearing on behalf of the opposite party, however, contends that Section 23a sub-clause (2) of the Act provides for damages. The said subsection reads as follows: "if in any suit instituted for the recovery of arrears of rent, it appears to the Court that the thika tenant has, without reasonable or probable cause, neglected or refused to pay the amount of rent due by him, the Court may award to the landlord in addition to the amount decreed for rent and costs such damages not exceeding twelve and a half per centum on the amount of rent decreed, as he thinks fit: provided that interest shall not be decreed when damages are awarded under this section. " This sub-section does not apply in the present cases inasmuch as the present proceedings cannot be said to be suits instituted for the recovery of arrears of rent. It was a proceeding started under Section 5 of the Act for ejectment of the tenant on the ground of default in payment of rent. Again, this sub-section provides nothing for the payment of interest on the post suit arrears. It simply provides for damages up to twelve and half per cent on the amount, decreed for rent, but in that case it has been further provided that when damages are awarded interest should not be decreed. On going through the different provisions of the Act, we are of the opinion that the learned Appellate Authority was wrong to think that the opposite party is entitled to get interest on the post-suit arrears. In such circumstances, the order passed by the learned Appellate Authority cannot be up-held. 5. IN the result, these applications succeed. On going through the different provisions of the Act, we are of the opinion that the learned Appellate Authority was wrong to think that the opposite party is entitled to get interest on the post-suit arrears. In such circumstances, the order passed by the learned Appellate Authority cannot be up-held. 5. IN the result, these applications succeed. The orders dated 21st of August 1975 passed by the learned Additional District Judge acting as Appellate Authority under the Calcutta Thika Tenancy Act is set aside and the orders passed by the learned Thika Controller are confirmed. There will be no order as to costs. Rules made absolute.