An application for vacating an order for recovery of possession under Section 18 (1) of the Rent Control Act of 1950 must be made within 60 days of the coming into force of the Act.

( 1 ) ON December 6, 1949 the landlord petitioner obtained from the Small Cause Court an order for recovery of possession of the premises from the tenant opposite party on the ground of ipso facto termination of tenancy under the Rent Control Act of 1948 in summary proceedings instituted under Chap. VII, Presidency Small Cause Courts Act. The order directed possession to be given on January 3, 1951. On 31-3-1959 the Rent Control Act of 1950 came into force. The latter Act was amended by the Amendment Act of 1950 which came into force on November 30, 1950. On January 2, 1951 the tenant applied for vacating the order for possession. On January 8, 1951. the Court directed payment of a certain sum of money and on such payment on January 19, 1951 vacated the order for possession. The landlord has moved this Court in revision against the order dated January 19, 1951.

( 2 ) IT is now settled law that the expression "decree for recovery of possession" in Section 18 (1 ). Rent Control Act of 1950 includes an order for recovery of possession under Chap. VII, Presidency Small Cause Courts Act. This was first decided in -- 'atulyadhan v. Sudhangsu, 55 Cal W. N. 343. In that case Das J. observed that ordinarily decree means the formal expression of an adjudication made in a suit which conclusively determines the rights of the parties so far as regards the Court expressing it is concerned but that in certain parts of the 1950 Act the term suit may include proceedings under Chap. VII, Presidency Small Cause Courts Act.

( 3 ) IT follows from the reasons given in that decision and Lahiri J. so decided in -- 'dhanesh Prokash v. Lalit Mohan', 55 Cal W. N. 347 that the word "suit" in Section 18 (5), Rent Control Act of 1950 includes a proceeding for recovery of possession under Section 41, Presidency Small Cause Courts Act. Lahiri J. held that for purposes of Sub-section (5) of Section 18 proceedings in which no order for recovery of possession is passed is pending and the tenant is entitled to relief under that sub-section.

( 4 ) IN this case the application for vacating the order for possession not being made within 60 days of the coming into force of the Rent Control Act of 1950 was not maintainable under Sub-section (1) of Section 18.

( 5 ) IT is however contended on behalf of the tenant that on the date of the coming into" force of the Rent Control Act of 1950 the proceedings for recovery of possession was pending in the trial Court and the tenant could ask for relief under Sub-section (5) of Section 18.

( 6 ) QUITE clearly Sub-section (5) of Section 18 can have no application if an order for possession had been made before the relevant date. In terms it applies to proceedings in which the order for possession would be passed. It does not empower the Court to vacate the order for possession. Read with Section 14 it gives the Court the power to order amendment of pleadings, production of evidence and eventually to order dismissal of the proceedings if certain, conditions are fulfilled. The Court cannot exercise such power in proceedings in which an order for possession. has already been passed.

( 7 ) SUB-SECTION (1) of Section 18 provides for the Case where an order for possession has been passed before the relevant date. It has been held in a series of decisions that in such case the tenant is entitled to apply for vacating the order under that sub-section. See --'atulya Dhan v. Sudhangsu', 55 Cal WN 343; --'iswari Prosad v. N. R. Sen', 55 Cal WN 719 (S. B.); -- 'shibram v. Subodh Kumar', 56 Cal WN 82 (S. B.); ---'satyanarain v. Sewmurat',' 56 Cal WN 167 (S. B. ). Such application of course must be made within 60 days from the relevant date.

( 8 ) READING Sub-sections (1) and (5) of Section 18 together it must be held that if an order for recovery of possession has been passed, the proceedings are no longer pending and the tenant can get no relief under Sub-section (5 ). It will be anomalous to hold that the tenant is en