1. This is a rule against an order of the Munsif, 1st Court Alipore, purporting to be under sec. 28 of the Calcutta Thicca Tenancy Act, 1949, rescinding a compromise decree for ejectment made in the suit before him on the 15th July, 1948. The Petitioner here as Plaintiff, brought a suit on the 9th April, 1948, for ejectment of the Opposite Party alleging that five months' rent was due and also that notice under sec. 106 of the Transfer of Property Act had been served requiring the Defendant to vacate on the expiry of the month of October, 1947. It may be noted that in his petition the Petitioner alleges that the tenant was in occupation on two leases which expired with the month of October, 1947, and that the notice in question was merely issued out of abundant caution. No reference to the fact of the leases, however, was made in the original suit: The suit was compromised and the decree passed in accordance with the terms thereof. These were briefly: the Plaintiff was to get a decree for ejectment with costs and also a decree for Rs. 125 on account of arrears of rent and Rs. 40 as damages but the Defendant was given an option to remain on the land until the 15th of October and give up peaceful possession by removing some of the structures. For the remainder the Plaintiff was to pay Rs. 500. Further, if the tenant vacated in accordance with the terms he was to get an extra Rs. 250 as compensation and then the decree was to have no effect. The decretal amount for arrears of rent, damages and costs was to be deemed fully satisfied. If the terms were not complied with, the decree was to remain in full force and effect. The tenant did not vacate and comply with the terms of the contract, although the Plaintiff deposited Rs. 750 in Court. On the 28th February, 1949, the Calcutta Thicca Tenancy Act came into force and thereafter the tenant made an application under sec. 28 thereof and the Munsif has allowed the application and rescinded the decree.
2. The Munsif had power under sec. 28 of the Act to rescind the decree if he was “of opinion that the decree or order was not in conformity with any provisions of this Act other than sub-sec. (1) of sec. 5 or sec. 27.”
3. The Munsif has interpreted this to mean that he is to treat the suit as though wholly governed by the provisions of the Act although the Act was not in force either at the time of institution of the suit or at the time of the decree. He has held that although strictly speaking the decree could not be said to have been made on the ground of existence of arrears of rent, a ground which in sec. 3 (1) of the Act has been now made one of the grounds for eviction, nevertheless, as there was a claim for arrears and a decree for arrears, he thought that the decree was even on his interpretation in this respect in conformity with the provisions of the Act. He has, however, held that it is not in conformity with the provisions of the Act because the notice given as appears from the record was not in accordance with the provisions of sec. 4 of the Act which requires at least one month's notice in writing expiring with the month of tenancy. A notice was sent by ordinary post on the 30th September, and there was a registered notice the receipt whereof shows that the notice was refused on the second of October. Without going into the question further, the Munsif has assumed that this shows that at least one month's notice was not in fact given.
4. A preliminary point was taken against this application in revision on the ground that the order of the Munsif under sec. 28 rescinding the decree was itself a decree and was, therefore, appealable to the District Judge. In my opinion the contention is not sound. The power given under sec. 28 is a special and extraordinary statutory power given by the statute and an appeal would only lie in my opinion if special provisions were given by the Act for an appeal creating a power.
5. Many points were canvassed before me which I do not think it necessary to discuss. In my opinion the special feature of this case is that the decree in question was a consent decree and although sec. 31 of the Act specially provides that nothing in any contract between a landlord and a thicca tenant after the commencement of the Act shall take away or limit the rights of the tenants by implication there is no bar in the case of a contract made as in the case of this consent decree, prior to the commencement of the Act.
6. In a proper case it will be necessary to consider what exact difference was intended by the legislature between the provisions of sec. 28 which deals with rescinding pre-Act decrees which had not been executed, and sec. 29 which deals with pending suits and proceedings in execution (necessarily of pre-Act decrees). The latter enjoins the Controller on transfer of the pending case “to deal with it in accordance with the provisions of this Act as if this Act had been in operation on the date of institution of the suit or proceedings.” Sec. 29 also specifically makes a proviso excluding the operation of sec. 4 requiring notice whereas no such exclusion is made in sec. 28: on the other hand, sec. 28 excludes sub-sec. (1) of sec. 5 (which requires proceedings in ejectment to be instituted before the Controller) whereas sec. 29 makes no such exclusion. Sec. 28 again excludes sec. 27 which deals with appeal, review and execution. How this section could ever have been thought to have had any bearing on any question of rescinding a pre-Act decree is beyond my comprehension, but the fact that these exceptions were inserted in sec. 28 will in due course have to be considered in time to interpret exactly what sec. 28 means.
7. In any view of sec. 28 I cannot see how it can be said in view of the provisions of sec. 31 that a consent decree even if in some points it is not in conformity with the act is not in a broader sense in conformity with the Act in the view that pre-Act contracts may exist having the effect of barring the provisions of the Act. The question of whether a consent decree could be set aside under sec. 9B (3) of the Calcutta House Rent Control Order, 1943, was considered in the case of Haji Mohammad Akramal Huq v. Rebati Bhusan Mukherjee.(1) in which reference was made to previous cases some of which were dissented from The wording of that section is of course different from the wording of either sec. 28 or sec. 29 of the Calcutta Thicca Tenancy, but the view was held that the consent decree could only be set aside where either the decree or the proceedings in the suit show that the real ground on which the landlord sought eviction was non-payment of rent by the tenant, that is to say, where the tenant had agreed to a decree being made on the ground which was specifically not a sufficient ground under the new Act if arrears had been paid up. Even applying the principle in the present case it would not operate to upset the decree passed. The decree in the case was passed on the ground that proper notice giving at least 15 days' notice had been given to the tenant. There was also the fact, which has now become a “ground,” namely, that there were arrears of rent. There was no agreement by the tenant to overlook the fact that full one month's notice had not been given to him as now required by sec. 4 of the Act. The question of one month's; notice could never have been present to the minds of the parties for the simple reason that until the Calcutta Thicca Tenancy Act was passed there never was any such requirement of notice. Hence for both the reasons I hold that the learned Munsif was in error in his interpretation of the Calcutta Thicca Tenancy Act and should not have rescinded the decree.
8. It remains to mention one other point arising out of decision in the cases of Shaikh Mohammad Maten v. Baijnath Bajoria(2) and Murari Mohan Mukherjee v. Prakash Chandra Chatterjee(3) where it has been held that before a tenant can claim any of the benefits of the Calcutta Thicca Tenancy Act he is required to show that he is a thicca tenant within the meaning of sec. 2 (5) of the Act which requires him to show that he holds “under the system commonly known as “thicca,” thicca masik udbandi, thicca masik, thicca bastu or any other like system. The learned Munsif has simply assumed without further investigation that the Defendant was such a tenant. It was suggested in argument before me that the use of the word system in sec. 3 (4) shows that the wording as used in the Act has a somewhat colourless connotation, and that too much stress has been laid in the cases cited on the use of the word in the definition of thicca tenant. The practical difficulty seems to be that nobody but the draftsman apparently knows of any real system and, therefore, it is a matter of some practical difficulty for any thicca tenant commonly understood as such to show that he is a thicca tenant within the meaning of the definition. It is true that on the other side of the picture unless some distinction is made then all monthly tenants of many different kinds of premises which nobody could think of describing as thicca tenants may bring themselves under the provisions of the Act, provided they put up a suitable shed or two on some open space attached to the premises. These are matters for the legislature. I see no reason to differ from the view expressed in the cases cited so that even had I been disposed on other grounds to allow this rule it would have been necessary to have sent the case back for the learned Munsif to see if this particular thicca tenant could succeed in showing that belonged to that apparently rare (if at all existent) variety defined in sec. 2 (5) of the Act.
9. The result is that this Rule is made absolute. The order of the learned Munsif rescinding the decree is set aside. The case will go back to him for disposal in accordance with the provisions of sec. 28, namely, by transferring it to the Controller for execution under the Act. I make no order as to costs.
N.D.R