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1983 DIGILAW 205 (CAL)

Lakhapati Debi Jaiswal v. Bhagati Pressing Co.

1983-07-21

ASHA MUKUL PAL

body1983
JUDGMENT 1. THIS Rule arises out of an application under Section 115 of the Code of Civil Procedure and is directed against Order No. 74 dated 19.7.82 passed by the Munsif, 2nd additional Court, Howrah, in Money suit No. 30 of 1978, holding that he had the jurisdiction to try the suit and answering the issue of jurisdiction in favour of the plaintiff. The defendant has come up to this Court by way of revision under section 115 of the Code of Civil Procedure challenging the validity of the said order on the ground that the Court wrongly assumed jurisdiction or in other words, had no jurisdiction to answer the issue in favour of the plaintiff in view of Section 19 of the Calcutta thika Tenancy (Acquisition and Regulation) Act, 1981. 2. SECTION 19 of the said Act provides: "all proceedings including appeals and all proceedings in execution or orders passed in proceedings including appeals under the Calcutta Thika tenancy act, 1949, pending on the 19th day of july, 1978, for the ejectment of thika tenants and Bharatias shall stand abated with effect from the 19th day of July, 1978, as if such proceedings, appeals or execution proceedings had never been made." Mr. Ganguly, learned Counsel appearing in support of the Rule contends that in view of that Section 19 the learned Munsif had no jurisdiction because all proceedings including appeals must abate in view of the amended provision of the Thika Tenancy Act. His main contention is that after the amendment the state Government has become the landlord and as no provision has been made with regard to the recovery of arrears of rent from the erstwhile Thika tenants it can be safely assumed that the taw does not permit any civil proceeding for recovery of the rent, even arrears. 3. MR. Mitra, learned Counsel appearing for the plaintiff opposite party, contends, referring to the facts of the case that the suit for rent relates to arrears which were due to his client from April b73 to August, 1975 and as such this amount became accrued due to his client long before the amendment came into force and its recovery is not barred by any of the provisions of the Thika Tenancy Act even assuming that he is a Thika Tenant, which he disputes. 4. MR. 4. MR. Mitra also refers to me Section 9 of the Civil Procedure Code that the courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Quite rightly, in this amended section of the Thika Tenancy Act, there is no provision from which it can be said that the right to recover arrears which became due long before the amendment has become barred expressly or even impliedly. 5. MR. Mitra also refers to me a decision reported in A.I.R. 1964 S. C. 322 (Firm of Illuri Subbayya Chetty and Sons vs. State of Andhra Pradesh). The Supreme Court held that right to sue in a civil Court or in other words civil court's jurisdiction cannot be barred ordinarily and there is general presumption that there must be remedy in the civil court to a citizen and that remedy can be held to be barred only on very clear and unmistakable indication to the contrary. The exclusion of the jurisdiction of the civil court to entertain civil causes will not be assumed unless the relevant statute contains an express provision to that effect. 6. IN this matter there is no provision, nor do the facts warrant to presume that the civil court's jurisdiction has been barred. The suit was for recovery of rent which was accrued due long before the amendment. I do not find any provision that the said right has been taken away by the amendment of the thika Tenancy Act. Both Mr. Ganguly and Mr. Mitra called upon me to protect their clients' interest by stating here what this order will not prejudice their rights which they might agitate either in the suit or in any other proceedings, record this fact to that effect. I also record here that I do not go into the question whether Mr. Ganguly's client is a Thika tenant or not, as that is the subject matter of another suit. I do not find anything which is irregular, defective, perverse or erroneous in the impugned order passed by the learned Munsif. This order merits no interference. 7. THE Rule is, therefore, discharged with the observations made above. The stay order is vacated. There will be no carder as to costs. Let the records go down immediately. Rule discharged.