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1953 Supreme(Cal) 103
HIGH COURT OF CALCUTTA
G. N. DAS, DEBABRATA MOOKHERJEE
BANKIM CHANDRA BANERJEE - Appellant
Versus
SARJOO TEWARI - Respondent
Civil Rule 2560 Of 1952
Decided On : MAY 21, 1953
ATUL CHANDRA GUPTA, CHANDRA NATH MUKHERJI, PURUSHOTHAM CHATTERJI, RAMESWAR SAHA
The right to apply for a stay of proceedings under Section 47 of the Presidency Small Cause Courts Act, 1882 exists till possession is taken.
Headnote:
PRESIDENCY SMALL CAUSE COURTS ACT, 1882 - SECTION 41, 43, 47 - SUMMARY SUIT - TRESPASS - STAY OF PROCEEDINGS - INTERPRETATION.
Fact of the Case:
The plaintiff obtained permission from the Rent Controller to initiate proceedings under Section 41 of the Presidency Small Cause Courts Act, 1882, on the ground of 'bona fide' requirement of the disputed premises. The plaintiff served a notice on the defendant terminating the tenancy and initiated proceedings under Section 41. The proceedings were dismissed by the trial Judge and on appeal, the Special Bench allowed the appeal and remitted the case for further consideration. The plaintiff again came up in appeal before the Special Bench, which dismissed the appeal. The plaintiff moved the High Court in revision and obtained a Rule. The Rule came up for hearing before a Bench of the High Court, which remanded the case for further consideration by the Special Bench. The Special Bench on remand allowed the appeal and directed that possession was to be delivered to the plaintiff. The defendant moved the High Court in revision and obtained a Rule. The Rule was discharged by the learned Judge, but the defendant was given time to vacate the premises. The defendant filed an application for leave to appeal to the Supreme Court which was dismissed. The defendant filed an application under Section 47, Presidency Small Cause Courts Act for stay of further proceedings pending the disposal of the proposed suit as provided for by Section 47 of the Act. The plaintiff moved the High Court in revision and obtained the present Rule.
Finding of the Court:
The High Court held that the mere making of an order under Section 43 of the Act does not preclude the making of an application for stay of proceedings on the terms contained in Section 47. The Court also held that the order of the Judge allowing the opposite party time to vacate on an application made by the latter did not disentitle the opposite-party from making the present application under Section 47.
Issues: 1. Whether the making of an order under Section 43, Presidency Small Cause Courts Act (Act 15 of 1882), hereinafter referred to as the Act bars the making of an application under Section 47 of the Act. 2. Whether the effect of the order of Chunder J. allowing the opposite party time to vacate on an application made by the latter disentitled the opposite- party from making the present application under Section 47.
Ratio Decidendi: 1. The word "trespass" in Section 47 of the Act must be given its ordinary meaning subject to the reservation that the meaning must be limited by the necessary implications contained in the section, namely that once possession is taken the right to make an application under that section is no longer available to the occupant. 2. The proceedings which are contemplated by Section 41 of the Act cannot be said to have terminated till the relief contemplated by that section is properly worked out. 3. Section 47 of the Act must be construed so as to permit the filing of an application under that section even after an order under Section 43 has been made. 4. The order of the Judge allowing the opposite party time to vacate on an application made by the latter did not disentitle the opposite-party from making the present application under Section 47.
Final Decision: The Rule was discharged with no order as to costs.
( 1 ) THIS Rule was issued at the instance of the plaintiff and is directed against an order of the Presidency Court of Small Causes directing stay of proceedings under Section 41, Presidency Small Cause Courts Act, 1882, under Section 47 of the said Act.
( 2 ) THE matter came up for hearing before Chunder J. By an order dated 13-1-1953 it was referred to a Division Bench and has now come up before us.
( 3 ) THE facts which gave rise to the present Rule may be shortly stated as follows :
( 4 ) IN June 1948 the plaintiff obtained, permission from the Rent Controller for initiation of proceedings under Section 41 of the Presidency Small Cause Courts Act on the ground of 'bona fide' requirement of the disputed premises. Thereafter the plaintiff-petitioner served a notice on the defendant-opposite party terminating the tenancy. On 2-9-1949 the plaintiff-petitioner initialed proceedings under Section 41 of the said Act. The proceedings were numbered as a suit. The suit was dismissed by a Judge of the, Presidency Court of Small Causes, Calcutta. Against that decision an appeal was taken to the Special Bench. The Special Bench allowed the appeal and remitted the case for further consideration. After remand the suit was again dismissed by the trial Judge. The plaintiff again came up in appeal before the Special Bench. The appeal was dismissed by the Special Bench. Thereafter the plaintiff moved this Court in revision and obtained a Rule. The Rule came up for hearing before a Bench of this Court. This Court was of opinion that the appeal before the Special Bench was maintainable and remanded the case for further consideration by the Special Bench. The Special Bench on remand allowed the appeal and directed that possession was to be delivered to the plaintiff on 28-2-1952. Thereafter the defendant-opposite party moved this Court in revision and obtained a Rule. The Rule came up for hearing before Chunder J. The Rule was discharged by the learned Judge, but the defendant-opposite party was given time to vacate the premises by 1-6-1952. Thereafter on 21-5-1952 the defendant-opposite party filed an application for leave to appeal to the Supreme Court which was dismissed by the Supreme Court. Thereafter on 3-6-1952 an application was filed by the defendant-opposite party under Section 47, Presidency Small Cause Courts Act for stay of further proceedings pending the disposal of the proposed suit as provided for by Section 47 of the Act. On 19-6-1952 the defendant-opposite party filed a suit in this Court as contemplated by Section 47. Thereafter on 21-6-1952 an order for stay of the proceedings under Section 41, Presidency Small Cause Courts Act was made by the learned Small Cause Court Judge. Against" this order the plaintiff moved this Court in revision and obtained the present Rule. As T have already observed, this Rule came up for hearing before Chunder J. and on an order made by him the case has come up before a Division Bench for disposal.
( 5 ) MR. Gupta, who has appeared in support of the Rule has raised two points.
( 6 ) THE first point which is uncovered by an authority of this Court is whether the making of an order under Section 43, Presidency Small Cause Courts Act (Act 15 of 1882), hereinafter referred to as the Act bars the making of an application under Section 47 of the Act. Section 47 of the Act reads as follows :"whenever on an application being made under Section 41 the occupant binds himself, with two sureties, in a bond for such amount as the Small Cause Court thinks reasonable, having regard to the value of the property and the probable costs of the suit next hereinafter, mentioned, to institute without delay a suit in the High Court against the applicant, for compensation for trespass and to pay all the costs of such suit in case he does not prosecute the same or in case judgment therein is given for the applicant, the Small Cause Court shall stay the proceedings on such application until such suit
