Rajani Kanta Das v. Dayal Chand Dey And Anr

The Judgment of the Court was as follows:

1. This is a Rule obtained against an order of the Registrar of the Court of Small Causes, Calcutta, rejecting an application before him by a sub-tenant. There was a proceeding by Dayal Chand Dey and Murari Mohan Dey under Chapter VII of the Presidency Small Cause Courts Act, 1882, against Baidyanath Seal, in which an order was passed on the 13th July, 1949, thus:

“By consent the suit is decreed with costs….”

2. The Petitioner claims to the sub-tenant of Baidyanath Seal and considers that in effect he cannot be removed from the part of the premises which he holds as a subtenant under Baidyanath Seal in view of the provisions of sec. 11 (3) of the West Bengal Premises Rent Control Act, 1948. He also in his application made some reference to sec. 18 of that Act (which appears to me to have no bearing on the present question at all) and made a number of somewhat strange prayers which it is not necessary to set out; but his principal prayer was that a notice be issued on the Opposite Party, namely, the Plaintiffs and Defendant in the proceeding under Chapter VII “to show cause why the applicant, the lawful sub-tenant under the Defendant, should not be deemed to be a tenant direct under the Plaintiffs and the decree passed without the knowledge of the applicant be rescinded or varied under sec. 11, cl. (3) and sec. 8 of the West Bengal Premises Rent Control Act, 1948, and in the meantime all further proceedings and execution be stayed in the meantime.” The learned Registrar has remarked in his order:

“As there is no special provision that the substantive right granted to a sub-tenant under sec. 11 (3) of the West Bengal Premises Rent Control Act, 1948, can be enforced by an application in this Court, the Small Cause Court cannot entertain the matter.”

3. He has stated further that “the applicant has, therefore, to bring a regular suit in the Hon'ble High Court and obtain an order staying delivery of possession….” He granted a short stay to give the applicant time to file his suit.

4. It would seem that perhaps through some misunderstanding of the effect: of the provisions of sec. 18 of the West Bengal Premises Rent Control Act, the Registrar has come to believe that some alteration has been made in the provisions of the Act, so that the Court now has a power to try a suit for ejectment; otherwise it is not easy to understand why the order is passed in the form quoted above that the suit was decreed by consent. The position has been discussed in the case of Amulya Ratan Bhattacharya… v. Meghmala Dutt….*(1). The proceedings under Chapter VII are not a suit and indeed sec. 14 of the Act, under whose provisions power can be conferred on the Registrar to deal with such proceedings, specially provides that for the purpose of that section only they shall be deemed to be a suit. The point is of some importance in considering whether the learned Registrar is correct in saying that there is no provision that rights of the subtenant under sec. 11 (3) of the West Bengal Premises Rent Control Act can be enforced by an application in the Court of Small Causes.

5. In my opinion, the matter is provided for in sec. 48 of the Presidency Small Cause Courts Act, which lays down that in all proceedings under Chapter VII, the Small Cause Court shall “as far as may be and except as herein otherwise provided, follow the procedure prescribed for a “Court of first instance by the Code of Civil Procedure.” Ordinarily, the Small Cause Court by virtue of the provisions of sec. 19 (d) of the Act, which bars the Court's jurisdiction in suits for recovery of immovable property, has nothing to do with immovable property either in suits or in execution. But there are some special provisions in the Act which do result in the Court having some jurisdiction in respect of immovable property. One provision is sec. 28 dealing with a matter of structures attached to immovable property and other provisions are in Chapter VII. Chapter VIII also relating to distresses gives special procedure for the recovery of rent due, which, at any rate, brings the Court in its proceeding in the same relation with immovable property. It seems to be a fundamental necessity of natural justice that the party who is not bound by the proceeding in a Court should not be deprived of his possession of property by any act of that Court. As a corollary it is natural to find provision that any person who considers that he is not so bound will have an opportunity if he finds he is affected by the orders of the Court, to come before the Court and at least to air his objection.

6. If the order of the learned Registrar, as given in the present form, is correct, then the provisions of the law relating to the procedure of the Presidency Small Cause Court are such that the sub-tenant, although he contends that he is in no way bound by the order of the Court, cannot be heard by the Court. In my opinion, the view of the Registrar is not correct.

7. The provisions of the Presidency Small Cause Courts Act as regards the procedure are unfortunately in a somewhat jumbled condition. Some attempt has been made to clarify matters by the issue in January last year by this Court of Rules of practice and procedure and the like made under the appropriate provisions of the Presidency Small Cause Courts Act and the Code of Civil Procedure. In the case of the ordinary Courts, a person in the position of the present applicant would come before the Court with an application under Or. 21, r. 97, or rather 98, or r. 100 and his objection would be heard. It is probable, as Mr. Mukherjee points out, that ordinarily in the case of sub-tenants the result would be that his application would fail on the ground that it would be held that he was bound in any case by the decree against his lessor, but at any rate there is a procedure provided by which he at least can have his objection heard by the Court to the order which, if enforced, will dispossess him. In the rules framed under sec. 9 of the Presidency Small Cause Courts Act, there is provision for such a procedure in the specific case of a claimant to structures dealt with under sec. 28. I refer to the rules in Chapter XXI under the heading “Resistance to Delivery to Purchaser,”— rule 69 under the heading specifically referring to property mentioned in sec. 28 of the Act, and rules 71 and 73 giving power to the Court to pass an order either in favour or against the objector.

8. In the case of distresses under Chapter VIII, the Act itself provides a procedure in sec. 61 for adjudication of claim cases in such matters by a Judge of the Small Cause Court. Incidentally, the Act itself in that section makes provision that the procedure of the Small Cause Court in cases under sec. 61 is to conform so far as may be to the procedure in an ordinary suit in such Courts.

9. Are we then to say that in the case of a proceeding for recovery of possession under Chapter VII of the Act the person claiming to be in no way bound by the Court's order has no remedy, because there is no procedure providing for him to be heard? In my opinion, the answer is clearly, no, and the reason why the specific rules have been framed under sec. 9 of the Act for such a procedure are that such rules could not be framed because of the provisions of sec. 48 in Chapter VII itself which I have already referred to. The Act itself provides that the procedure in the Small Causes Court in these matters under Chapter VII is to be the same as that prescribed in what may be called a Mofussil Court by the Civil Procedure Code. In my opinion, this automatically brings into operation the provisions of Chapter XXI and in particular the rules relating to the procedure for hearing claims. This is re-cognised in the form of: sec. 141 of the Code of Civil Procedure as applied to the Calcutta Courts of Small Causes by this Court in exercise of its powers under sec. 8 of the Code of Civil Procedure itself. The section as adapted for these Courts are as follows:

“The procedure provided in this Code and in the Presidency Small Cause Courts Act, 1882, in regard to suits shall, as far as it can be made applicable and except as therein otherwise provided be followed in all proceedings…. in the Court of Small Causes of Calcutta.” The words “and except as therein otherwise provided” have reference to provisions in the Small Causes Court Act such as those of sec. 48.

10. Apart from the provisions of sec. 48, this would make applicable, to all proceedings other than suits, in the Courts, the procedure ordinarily applicable to suits, as is done in sec. 141 of the Code of Civil Procedure itself. But the adapted section recognises that as a special provision with regard to procedure for matters under Chapter VII has been laid down in sec. 48 of the Act itself, this Court by adaptation of sec. 141 under sec. 8 of the Code of Civil Procedure could not alter that provision. I may add as my own opinion that matters could be much simplified if the Presidency Small Cause Courts Act were amended so that all the procedure could be provided for in one place as it were instead of being scattered about as it is, partly in the Act by reference in sections like secs. 43 and 61 and partly by adaptation of the Code and partly by rules made under sec. 9. That is, however, purely a personal opinion. I merely mention it because it seems that owing to those difficulties the actual provision applicable in the present case seems to have been lost sight of. In my opinion, therefore, the appropriate order that the learned Registrar should have made was merely to point out that the application in the form in which it stood could not be dealt with, but that the applicant, if he considered he had a grievance and a right, and if and when the order of the Court was sought to be enforced so as to affect his right, could come to the Court under the appropriate provision under Or. 21 of the Code and he would be heard.

11. I wish to make it clear that in what I am saying I am not in any way suggesting anything as to what would be the actual result of such an application, or what exactly are the rights of the sub-tenant under sec. 11 (3) of the West Bengal Premises Rent Control Act, or what would be proper order for the Court to pass in view of the alteration in the law made by those provisions.

12. The point in this matter arises mainly from the fact that the learned Registrar's order, as it stands, is based on a wrong view of the position with regard to procedure and partly from the fact that my attention has been drawn to several cases in which various applications of various kinds to enforce the right under sec. 11 (3) of the West Bengal Premises Rent Control Act had been made and the parties have simply been told that that particular method of applying is a wrong one. I have not seen in any case anywhere a suggestion as to what is the correct procedure for the sub-tenant to follow.

13. The result, in any case, is that the Rule is discharged. I make no order as to costs.

N.D.R