Nalinakhya Bysack vs Shyam Sunder Haldar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1953 Supreme(SC) 11

SUPREME COURT OF INDIA
29th January 1953
MAHAJAN, S.R. DAS AND BHAGWATI JJ.
Nalinakhya Bysack, Appellant
Versus
Shyam Sunder Haldar and others, Respondents.
Appeal No. 96 of 1952.
Advocates appeared
Shri Arun Kumar Dutta and Shri Shivdas Ghosh, Advocates, instructed by Shri S. C. Bannerji, Agent, for Appellant; Shri Panchanan Ghose, Senior Advocate, (Shri S. P. Ghose, Advocate, with him), instructed by Shri Sukumar Ghose, Agent, for Respondents.

Advocates:
ARUN DUTTA, PANCHANAN GHOSH, S.C.BANERJEE, S.P.GHOSH, SHIVDAS GHOSH, SUKUMAR GHOSH

Headnote:Marginal Notes.
       Held: The marginal note cannot control the meaning of the body of the section if the language employed therein is clear and unambiguous. If the language of the section is clear then it may be that there is an accidental slip in the marginal note rather than that the marginal note is correct and the accidental slip is in the body of the section itself. - PRESIDENCY SMALL CAUSE COURTS ACT, 1882 Presidency Small Cause Courts Act (1882), S. 43-Order for delivery of possession.
       Held: Although under the rules framed under the Act the application under S. 41 is initiated by a plaint, the proceeding is not a suit and the order for delivery of possession under S. 43 does not strictly speaking amount to a decree for possession. - West Bengal Premises Rent Control (Temporary Provisions) Act XVII of 1950, (as amended by W. B. Act 62 of 1950), S. 18 (I)-Does not apply to order for possession under S. 43, Presidency Small Cause Courts Act (1882) ; S. 43, S. 12, Expl. of the Act-Scope.
       Held: "Section 18 (I) of Act 17 of 195Q does not refer to decree simplicities but to any decree for recovery of possession of any premises on the ground of default in payment of arrears of rent under the provisions of the 1948 Act. Turning then to that Act we find that a decree for possession on the ground of non-payment of rent under that Act is treated distinctly from an order of possession on the ground of non-payment of rent under the same Act. A decree for the recovery of possession within the meaning of that Act can, therefore, only mean a decree in a suit for recovery of possession and cannot cover an order for
       1. Reversing A.I.R. 1952 Cal. 199.
       possession passed under S. 43 on an application made under S. 41 of the Presidency Small Cause Courts Act .....
       "What does the word decree in S. 18 (1) mean? That word has not been defined either in the 1948 Act or in Act 17 if 1950 or in the Bengal General Clauses Act . That word, however, has been defined in the Code of Civil Procedure, 1908, and, as there defined, it means the formal expression of an adjudication which determines the right of the parties with regard to the matter in controversy in the suit which last word prima facie means a civil proceeding initiated by a plaint (S. 26 and 0.4, R.I, C.P.C.). This is the ordinary accepted meaning of the word decree occurring in S. 18 (1) then clearly it cannot cover an order for possession passed under S. 43 of the Presidency Small Cause Courts Act on an application made under S. 41 of that Act .....
       "The word suit does not and was not intended to cover any proceeding under Chapter VII of the Presidency Small Cause Courts Act. Section 12(1) prohibits the making of any order or decree for the recovery of possession by any Court, notwithstanding anything to the contrary in any other Act or law. This sub-So (1), standing by itself, means that no order for possession can be passed by the Presidency Small Cause Court notwithstanding the Presidency Small Cause Courts Act and no decree for possession can be made by any Court in any suit not with standing the Transfer of Property Act or the Contract Act or the code of Civil Procedure, 1908. The proviso to sub-So (1), however, saves "any suit for decree for such recovery of possession" against certain tenants or in certain circumstances. Therefore, it is clear that the proviso to sub S. (1), S. 12 does not save proceedings under Chapter VII of the Presidency Small Cause Courts Act. The explanation to that sub-section stating that the word suit in the proviso does not include a proceeding under Chapter VII of the Presidency Small Cause Courts Act appears to have been inserted out of abundant caution to put the position beyond any doubt.

Judgement Key Points

The finality of an order from the RCP (Rent Control and Eviction) Court regarding the filing of an appeal before the district court is generally governed by the procedural rules and statutory provisions applicable to such proceedings. Typically, an order issued by the RCP Court on the matter of filing an appeal is considered interlocutory or preliminary, and its finality depends on whether it is a procedural or substantive decision (!) .

In most cases, an order permitting or denying the filing of an appeal is not itself final in the sense of disposing of the substantive rights of the parties but is instead an interlocutory order that governs the procedural aspect of the case. Such orders are usually subject to review or reconsideration and do not bar the parties from pursuing the appeal itself once the procedural requirements are satisfied (!) .

However, once the RCP Court issues a final order on the substantive issues—such as the merits of the case or the validity of the appeal—this order is considered conclusive and binding, subject to appeal within the prescribed period. The appellate court's review of such an order is generally the final step in the process, and unless there are exceptional circumstances or specific statutory provisions allowing for further review, the appellate court's decision becomes conclusive and binding (!) .

Therefore, the order from the RCP Court regarding the filing of an appeal before the district court is typically not final in itself but is subject to further review or appeal. Once the appellate court rules on the appeal, its decision is usually final and binding, barring any permissible further legal remedies. The finality of such an order hinges on whether it disposes of the substantive rights or merely addresses procedural compliance, as well as the applicable legal provisions governing appeals in this context (!) .

Judgement

S. R. DAS J. : This appeal is directed against the judgment and order of a Bench of the Calcutta High Court passed on 9-4-1951 in Civil Rule No. 1038 of 1950. The facts leading up to this appeal may be shortly stated as follows:

2. The respondents were, according to the appellant, monthly tenants under the appellant in respect of three rooms, one kitchen, one privy and a bathroom on the ground floor of Premises No. 6, Roy Began Street, Calcutta, at a monthly rent of Rs . 25 payable according to the Bengali Calendar month. On 29th Baisakh 1356 B.S. the appellant gave notice to the respondents too quit the premises on or before 7th Jaistha 1356 B. S. The respondents having failed to comply with the notice, the appellant on 1-6-1949 instituted proceedings under Chap VII of the Presidency Small Cause Courts Act, 1882, for the eviction of the respondents from the demised premises on the allegation that the tenancy had determined ipso facto for non-payment of rent for three consecutive months in terms of S. 12(3) of the West Bengal Premises Rent Cntrol Act, 1948. The respondents on 6-7-1949 deposited into Court Rs. 233-7-0 and on 8-7-1949 entered appearance and filed a written statement denying that they were in arrears with their rent or that their tenancy had been ipso facto determined. The said proceedings came up for hearing on 27-2-1950 and the respondents not having appeared it was heard exparte and an order was made directing the delivery of possession of the premises to the appellant on 3-5-l950. In the meantime on 31-3-1950 the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (Act 17 of 1950) came into force. On 29-5-1950 the respondents filed an application in the trial Court under S. 18 of the said Act for vacating the order for possession. On 5-8-1950 the trial Court made an order upon terms which, as set out in the respondents case, are as follows:

"5-6-1950. On consent all arrears of rent up to Jaistha 1357 B.S. with interest at 9 p.c. p.a. along with the costs of the suit including half Pleader s fee amounting to Rs. 399-3-0 on consent in total to be paid by the defendants to the plaintiff by 4-7-1950. To date fixed for payment and orders. All proceedings and execution stayed untill further orders."

The agreed amount having been paid the order for possession was vacated on 4-7-1950. The order as recorded in the order sheet reads as follows :

"4-7-1950. Parties present as before Defendant carries out the order of the learned Court, dated 5-6-1950. Money deposited in Court as ordered. Accordingly order of decree for possession is vacated. Money in Court is allowed to be withdrawn by the plaintiff s pleader under power."

The appellant on 1-3-1950 moved the High Court under Sec. 115, Civil P.C., for setting aside the order of the trial Court passed on 4-7-1950. While the application was pending before the High Court the West Bengal Premises Rent Control (Temporary Provisions) Amendment Act. 1950 (Act 62 of 1950) came into force on 30-11-1950. On 9-4-1951 the High Court following an earlier decision of another. Bench of that Court in Atulya Dhan v. Sudhangsu, AIR 1951 Cal. 32(A) dismissed the application. On 30-11-1951 the High Court granted leave to the appellant to appeal to this Court and issued a certificate under the provisions of Art. 133(1) (c) of the Constitution of India.

3. As already stated, the proceedings out of which the present appeal arises were instituted under Chap. VII of the Presidency Small Cause Courts Act, 1882. Chapter VII of that Act which is intituled "Recovery of possession of Immovable Property" allows the landlord, in certain circumstances to

"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."

Section 43 provides that if the occupant does not appear at the time appointed or show cause to the contrary, the applicant landlord shall, if the Court

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