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HIGH COURT OF CALCUTTA
P. N. MUKHERJEE
DILWAR SULTAN - Appellant
Versus
KESHAB CHANDRA MUKHERJEE - Respondent
A. F. A. O. 29 Of 1952
Decided On : JANUARY 22, 1954
THIKA TENANCY ACT - SECTION 28 - CALCUTTA THIKA TENANCY ACT, 1949 - SECTION 28 - RESCISSION OF DECREE - RIGHT OF THIKA TENANT - EFFECT OF AMENDMENTS TO THE ACT - INTERPRETATION OF STATUTORY PROVISIONS - DISCRETION OF COURT.
Fact of the Case:
The appellant, a thika tenant, filed an application under Section 28 of the Calcutta Thika Tenancy Act, 1949, seeking rescission of an ex parte decree for ejectment obtained against him by the respondents-landlords. The application was dismissed by the trial court and the appellant's appeal was also dismissed by the lower appellate court. The appellant then filed a second appeal and an alternative application under Section 115 of the Civil Procedure Code for revision of the orders of the two courts below.
Finding of the Court:
The court held that the appellant had sufficient interest in the disputed holding to entitle him to apply under Section 28 of the Act for rescission of the decree in question, despite having transferred the holding prior to the filing of the application. The court also held that the appellant's right to apply under Section 28 of the Act was not affected by the subsequent amendments to the Act, which omitted or repealed Section 28. The court further held that the court has a discretion in the matter of rescinding a decree under Section 28 of the Act and that the discretion must be exercised judicially after taking into consideration all the relevant circumstances.
Issues: 1. Whether the appellant had the locus standi to apply under Section 28 of the Calcutta Thika Tenancy Act, 1949, despite having transferred the disputed holding prior to the filing of the application? 2. Whether the appellant's right to apply under Section 28 of the Act was affected by the subsequent amendments to the Act, which omitted or repealed Section 28? 3. Whether the court has a discretion in the matter of rescinding a decree under Section 28 of the Act?
Ratio Decidendi: 1. The court held that the appellant had sufficient interest in the disputed holding to entitle him to apply under Section 28 of the Act for rescission of the decree in question, despite having transferred the holding prior to the filing of the application. The court reasoned that the appellant was under the liability to make good the transfer and in default to suffer damages, and that he also had liabilities under the decree, such as for costs. The court further held that under Section 28 of the Act, the court can act suo motu and no application is necessary to set it in motion, and that the appellant's application was in the nature of an information inviting the court's attention to certain facts on which it may, if it thinks fit, take action under the section. 2. The court held that the appellant's right to apply under Section 28 of the Act was not affected by the subsequent amendments to the Act, which omitted or repealed Section 28. The court reasoned that the proviso to Section 1(2) of the Amending Act of 1953, which omitted or repealed Section 28 of the old Act of 1949, could not be construed as envisaging automatic abatement or extinction of all proceedings under Section 28 of the old Act by reason of the omission or repeal of this latter section. The court further held that there was nothing in law to prevent it from ascertaining the intention of the Amending Act to resolve the statutory ambiguity or from giving effect to it in the construction of the said proviso. 3. The court held that the court has a discretion in the matter of rescinding a decree under Section 28 of the Act and that the discretion must be exercised judicially after taking into consideration all the relevant circumstances. The court reasoned that the use of the word "may" by the Legislature in Section 28 indicated that the court has a discretion in the matter, and that there is no element of compulsion in it.
Final Decision: The court allowed the appeal in part, set aside the orders of the two courts below, and sent back the case to the trial court for a final decision in accordance with law in the light of the directions given by the court and the observations made by the court. The court also directed that the parties will bear their own costs in the High Court as also in the two courts below.
( 1 ) THIS appeal arises out of an application under Section 28, Calcutta Thika Tenancy Act 1949. The application was dismissed by the trial court and the tenant's appeal from the said decision failed before the Subordinate Judge who dismissed it on the merits and also on the ground that no appeal lay from an order rejecting an application under Section 28, Calcutta Thika Tenancy Act, 1949. Hence this Second Appeal by the tenant who has also filed an application in the alternative under Section 115, Civil P. C. for revision of the orders of the two courts below.
( 2 ) A preliminary objection has been raised to the maintainability of the second appeal, but in view of the alternative application in revision and the nature of the questions involved in this case, it is not necessary to examine the merits of the said objection.
( 3 ) ON 15-12-1948 the respondents landlords obtained an ex parte decree for ejectment against the tenant appellant. Before, however, possession could be recovered in execution of the decree the tenant judgment-debtor applied, under Section 28, Thika Tenancy Act, 1949 which had come into force in the meantime, for rescission of the said decree. This application was made on 18-9-1950 and the learned Munsif by his judgment dated the 29th June 1951 dismissed the same on the ground that the applicant was not a "thika tenant" under the Act. The basis of that finding was that the applicant had failed to prove the "thika system" as required by law. The appeal from that decision was dismissed by the lower appellee court on 8-2-1952. The learned Subordinate Judge held that the learned Munsif's decision was not appealable in law. He also held that the decision of the learned Munsif was right on the merits and the "thika system" not having been proved the applicant was not a "thika tenant" under the Act and the application could not, therefore, succeed.
( 4 ) THERE can be no question that under the law, as it then stood, vide -- 'haran Chandra Dey v. Sm. Charu Bala Dassi', 53 Cal WN 553 (A); --'murari Mohan v. Prokash Chandra', -- 'sm. Suraj Jan Bibee v. Banku Behary', -- 'shaikh Mohammed Matew v. Baijnath Bajoria', the decisions of the two Courts below were right on the merits and, if the law had remained as it was, there would have been no scope or occasion for any interference by this Court. The relevant statute, however, has undergone some quick changes in the meantime, the effect whereof requires to be considered in the present case.
( 5 ) THE appeal to this Court was filed on 18-3-1952 and the alternative revisional application on the 19th. While they remained pending, the Calcutta Thika Tenancy Act, 1949 was amended first by the Amending Ordinance of 1952 and then again by the Amending Act of 1953, and the question is whether in view of these changes of the statute law the appellant has become entitled to any relief.
( 6 ) MR. Sen argues that under Section 5 (1) of the Ordinance of 1952, read with the amended definition of "thika tenant" which came along With it, the appellant became entitled to relief under Section 28 of the Act of 1949 and his right in that behalf was not affected by the repeal or omission of the said section or sections by the Amending Act of 1953. He, accordingly, contends that the rejection of his client's application by the two courts below be set aside.
( 7 ) ON the other hand, the respondents contended that, whatever might have been the position under the Ordinance, the subsequent Amending Act of 1953, by providing in Section 8 that Section 28 of the old Act of 1949 "shall be omitted", has struck at the root of the appellant's claim and, further, that the application must also fail on the ground that the applicant had no locus standi to make the same because of the transfer of his entire interest in the disputed holding sometime before the filing of the said application.
( 8 ) I shall take up first the respondents' second objection which relates to the questi
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