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1955 Supreme(Cal) 187
HIGH COURT OF CALCUTTA
K. C. Das Gupta, Bachawat
BARJIWANDAS GUJRATI - Appellant
Versus
MOHINI MOHAN SHAH - Respondent
Civil Rule 1462 Of 1955
Decided On : SEPTEMBER 08, 1955
A.C.GUPTA, PURUSHOTHAM CHATTERJI, RAMESWAR SAHA
The Court has the power to extend the date of possession fixed under Section 43 of the Presidency Small Cause Courts Act during the pendency of the proceeding, and Section 148 of the Civil Procedure Code, as amended, empowers the Court to enlarge the period fixed for the giving of possession.
Headnote:
PRESIDENCY SMALL CAUSE COURTS ACT - SECTION 41, 43, 47 - SUMMARY PROCEEDING - RECOVERY OF POSSESSION - EXTENSION OF DATE OF POSSESSION - JURISDICTION OF COURT - SECTION 148, CIVIL PROCEDURE CODE - APPLICABILITY - INTERPRETATION.
Fact of the Case:
The petitioner filed two applications challenging the orders of the Presidency Small Cause Court extending the date of possession in a summary proceeding for recovery of possession under Section 41 of the Presidency Small Cause Courts Act. The petitioner argued that the Court had no jurisdiction to extend the date of possession once it was fixed under Section 43 of the Act and that the "decree" drawn up did not conform with the judgment.
Finding of the Court:
The Court held that the summary proceeding for recovery of possession under Chapter VII of the Presidency Small Cause Courts Act is not a suit but a proceeding sui generis that terminates with actual recovery of possession. The order for possession under Section 43 is a step in the proceeding and does not terminate it. The Court has the power to make fresh orders with regard to the date on which possession is to be given by the bailiff and to vary such date before or after its expiry during the pendency of the proceeding. Section 148 of the Civil Procedure Code, as amended by a Notification issued under Section 8 of the Code, empowers the Court to enlarge the period fixed or granted for the doing of any act allowed by the Presidency Small Cause Courts Act, including the giving of possession by the bailiff.
Issues: 1. Whether the Court has jurisdiction to extend the date of possession once it is fixed under Section 43 of the Presidency Small Cause Courts Act? 2. Whether Section 148 of the Civil Procedure Code applies to proceedings before the Presidency Small Cause Court and empowers the Court to enlarge the period fixed for the giving of possession? 3. Whether the "decree" drawn up conforms with the judgment?
Ratio Decidendi: 1. The summary proceeding for recovery of possession under Chapter VII of the Presidency Small Cause Courts Act is not a suit but a proceeding sui generis that terminates with actual recovery of possession. The order for possession under Section 43 is a step in the proceeding and does not terminate it. The Court has the power to make fresh orders with regard to the date on which possession is to be given by the bailiff and to vary such date before or after its expiry during the pendency of the proceeding. 2. Section 148 of the Civil Procedure Code, as amended by a Notification issued under Section 8 of the Code, empowers the Court to enlarge the period fixed or granted for the doing of any act allowed by the Presidency Small Cause Courts Act, including the giving of possession by the bailiff. 3. The "decree" drawn up conforms with the judgment.
Final Decision: The Court discharged the Rule with costs, upholding the orders of the Presidency Small Cause Court extending the date of possession and dismissing the petitioner's applications.
( 1 ) THIS Rule is directed against an order of the Judge of the Presidency Small Cause Court, rejecting two applications of the present petitioner, the first of which was filed on 11-9-1953 and the second on 2-4-1954. An application under Section 41 of the Presidency Small Cause Courts Act hereinafter also referred to as the Act was made on 11-7-1949 by the landlord opposite party stating that this defendant was a monthly tenant under the plaintiff in respect of premises No. 45, Nalini Sett Road, that the tenant's interest had determined on his failure to pay rent for three consecutive months and praying "for recovery of possession of the said room from the defendant. " The defendant stated in his petition that he had been "persuaded and coerced to consent to be a tenant" and in the same breath denied relationship of landlord and tenant and lastly said that there had been a prescriptive right of defendant's family". On 20-124949 the Judge holding that the relationship of landlord and tenant had been established and that the tenancy had ipso facto determined passed an order saying "decreed as prayed. Date of possession 21-3-1950". On 20-3-1950 the landlord made an application that the date of possession be extended from 21-3-1950. Then the learned Judge passed an order on the 21st March in these words: "on plaintiff's application the date of possession be extended to 5-4-1950". Thereafter; on successive applications of the landlord the date of possession was extended to different dates until by an order dated 16-7-1953 the learned Judge extended the date of possession to 16-9-1953. It was on 11-9-1953 that the present petitioner filed his application praying for "an order that the extension of date of possession granted from time to time and particularly on 16-7-1953 whereby the date of possession had been extended and fixed on 16-9-1953 be cancelled". Pending the hearing of this application the date of possession was extended by successive orders to 4-5-1955. The application was dismissed on 30-4-1955 and on the same date the date of possession was extended to 31-5-1955.
( 2 ) THE second application filed on 2-4-1955 was on the ground that as in the application under Section 41 of the Presidency Small Cause Courts Act the plaintiff had asked for recovery of the said room and the order passed was "decreed as prayed", the "decree" drawn up in the ivqrds "possession is to be given in respect of premises No. 45, Nalini Sett Road, Calcutta" was not in accordance with the judgment and that this "decree" should, accordingly, be set aside. This application was also dismissed by the Court below toy his order of 304-1955.
( 3 ) THE present Rule was obtained on 10th, May 1955 and all proceedings as regards the delivery of possession have been stayed pending disposal of the Rule.
( 4 ) THE argument that the landlord asked for possession of only a room and not of tlie premises is clearly untenable. If the application is read es a whole there cannot be the slightest doubt that though the words "the said room" were used, what was really asked for was possession of the entire premises. It has not been anybody's case at any stage that the defendant is in occupation of any one room. The use of the words "the said room" was obviously a clerical mistake and it would, in my opinion, be entirely wrong of the learned Judge to allow this mistake to weigh with him. Properly 'construed the application discloses clearly and unmistakably a prayer for possession of the entire premises and when the Court ordered "decreed as prayed", it was the possession of the premises that was ordered and not possession of any one room. The contention that the "decree" was not in accordance with the judgment must, therefore fail.
( 5 ) THE main ground urged in support of the first application filed for cancellation of the orders passed for extension on the date of possession ia that there is no provision of law under which the date could be exte
