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Case Number

Civil Rule No. 2160 of 1952

Advocates

Sudhansu Kr. Sen
Benoyendra P. Bagchi

Judges

Das, J.

Acts

section 32(6)(ii) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, hereinafter called the Rent Control Act, 1950.
Civil Judicature. Section 16 and Schedule B of the Rent Control Act, 1950,
(4) (57 C.W.N 455), the applicability of Order 21, rule 100 of the Code
section 104(1)(i) read with Order 43, rule 1, clause (d) of the Code.24.
rules 8 and 9 of the West Bengal Premises Rent Control Act, 1950,
Rent Controller.27. Thus sub-sections (1) to (5) of sec. 32
Code of Civil Procedure.12. The Rent Control Act, 1950,
section 32(6) of the Rent Control Act, 1950.19.
section 32(6)(ii) of the Rent Control Act, 1950,
section 16 of the Rent Control Act, 1950.20.
section 115 of the Code of Civil Procedure
21, rule 97 of the Code of Civil Procedure
section 47 of the Code of Civil Procedure
section 1 of the Code of Civil Procedure
section 4 of the Code of Civil Procedure
section 16 of the Rent Control Act, 1950,
74 I.A 264 : 52 C.W.N 275):The true rule
ORDER 9 RULE 13 CIVIL PROCEDURE CODE
Rent Controller.26. Section 32(5)
case.33. Section 106 of the Code
Assam Civil Courts Act, 1887.10.
Rent Controller. Section 32(4)
Assam Civil Courts Act, 1887,
Order 9, rule 13, of the Code
Rent Control Act, 1950.
Section 32(1)(2) (3)
Order 9, rule 13

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

In 1951 the plaintiff (opposite party) filed a suit for ejectment of the defendant petitioner in respect of premises No. 3, Ripon Lane, Calcutta, alleging that the plaintiff reasonably required the portion held by the defendant as tenant at a rent of Rs. 60 per month. The suit was valued at Rs. 720.

The suit was decreed ex parte on January 14, 1952, and the plaintiff took possession in execution of that decree. The defendant petitioner then applied under Order 9, rule 13 of the Code of Civil Procedure to set aside the ex parte decree on the ground that no notice or summons had been served and that he first learned of the suit when possession was taken. That application was dismissed on May 3, 1952 by Shri P.M. Lahiri, Judge, 2nd Bench.

The defendant appealed to a Special Bench constituted under section 32(6)(ii) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (the Rent Control Act, 1950). A Special Bench consisting of the Chief Judge and the Judge, 6th Bench, dismissed the appeal on June 17, 1952 on the ground that no appeal lay from the order of the Judge, 2nd Bench; the Special Bench recorded no reasons for that view.

The defendant then moved the High Court in revision under section 115 of the Code of Civil Procedure and obtained the rule which produced the present opinion.

Legal Issues Presented

Whether the procedure before the Judge, 2nd Bench, trying a suit under section 16 of the Rent Control Act, 1950, is governed by the Code of Civil Procedure.
Whether an appeal lies from an order (specifically the dismissal of an application under Order 9, rule 13 CPC) made by the Judge, 2nd Bench, in a suit under section 16 of the Rent Control Act, 1950.
If an appeal lies, to which forum the appeal should be made (i.e., whether the Special Bench constituted under section 32(6) of the Rent Control Act, 1950, is the proper forum).

Arguments of the Parties

Defendant Petitioner (Mr. Sen)

Contended that an appeal lay from the order of the Judge, 2nd Bench, to the Special Bench constituted under section 32(6)(ii) of the Rent Control Act, 1950.

Plaintiff Opposite Party (Mr. Bagchi)

Urged that the Rent Control Act, 1950, provides for an appeal only from a decree in a suit for ejectment and therefore necessarily excludes a right of appeal from an order passed in such a suit.
Argued that rules 8 and 9 of the Rent Control Act, 1950, provide for a limited application of the Code of Civil Procedure and that this limited application implies exclusion of the general application of the Code.
Contended that section 4 of the Code of Civil Procedure excludes the applicability of the Code to proceedings under the Rent Control Act, 1950.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mirabala Dasi v. Bina-pani Dassi	Held that the Code of Civil Procedure is fully applicable to the trial of suits under Schedule B and to appeals from decrees made therein.	Used to support the proposition that the Code of Civil Procedure applies to suits under section 16 of the Rent Control Act, 1950.
Bhupeshchandra Dutt v. M.N. Bose	Assumed applicability of Order 21, rule 97 of the Code of Civil Procedure to execution proceedings in suits under section 16.	Accepted as precedent indicating that execution procedure provisions of the Code have been treated as applicable to section 16 suits.
Sheo Sankarlal v. Bijoy Krishna Dutt	Similarly assumed applicability of Order 21, rule 97 to execution of decrees under section 16 suits.	Reinforces the view that relevant execution provisions of the Code apply to Rent Control Act section 16 suits.
S.N. Talapatra v. M/S Bengal Bonded Warehouse & Anr.	Assumed applicability of Order 21, rule 100 of the Code to execution proceedings in suits under section 16.	Supports the Court's reliance on provisions of the Code being applicable to execution proceedings under section 16.
Dalhousie Traders Ltd. v. Md. Sadik	Held that section 47 of the Code of Civil Procedure applied to execution of a decree in a section 16 suit and that an appeal lay to the Special Bench constituted under section 32(6) of the Rent Control Act, 1950.	Treated as directly supportive authority for both the applicability of the Code to execution proceedings and for the availability of an appeal to the Special Bench.
R.M.A.R.A Adaikappa Chettiar v. R. Chandrasekhare Thevar (Privy Council)	Principle: where ordinary courts are seized of a legal right, they are governed by ordinary rules of procedure and an appeal lies if so authorised by ordinary rules notwithstanding a special statute that does not in terms confer a right of appeal.	Applied as a general principle establishing that ordinary procedural rules (the Code) apply unless the special law expressly excludes them.
National Sewing Thread Co., Ltd. v. James Chadwick and Bros. Ltd. (Supreme Court)	Applied the principle from Adaikappa Chettiar concerning applicability of ordinary procedural rules despite a special statute's silence on appeals.	Invoked to reinforce the general principle that the Code governs procedure where the special act is silent.

Court's Reasoning and Analysis

The Court proceeded through a sequence of statutory interpretation and application of authorities:

Statutory structure: Section 16 of the Rent Control Act, 1950, provides that suits for ejectment shall lie to the Courts listed in Schedule B. Schedule B(1)(ii) specifies that where the premises are within the ordinary original jurisdiction of the Calcutta High Court and monthly rent is under Rs. 500, the Chief Judge of the Calcutta Court of Small Causes shall try the suit as a Court of the District Judge under the Bengal, Agra and Assam Civil Courts Act, 1887, with a proviso enabling transfer to another Judge who shall try it as a Court of the Subordinate Judge.
Character of the tribunal: Because the Chief Judge or the transferred Judge functions "as a Court under the Bengal, Agra and Assam Civil Courts Act, 1887," they are courts of civil judicature; therefore the preamble and section 1 of the Code of Civil Procedure, which make the Code applicable to all proceedings before a Court of Civil Judicature, point to applicability of the Code to such suits.
Addressing arguments limiting applicability: The Court rejected the argument that rules 8 and 9 of the Rent Control Act, 1950, which prescribe specific procedural departures (e.g., summoning of witnesses and procedure for certain inquiries), imply exclusion of the general application of the Code. The Court held that those rules were meant to diverge in specified respects and not to exclude other provisions of the Code.
Interpretation of section 4 CPC: The Court rejected the submission that section 4 of the Code (which states the Code shall not limit or affect any special or local law) operates to exclude the Code entirely from Rent Control Act proceedings. The Court read section 4 as excluding only provisions of the Code that conflict with the special or local law, and not as barring the application of the Code where the special law is silent.
Reliance on precedents and principle: The Court surveyed prior Bench decisions and authoritative principles (including the Privy Council's statement in Adaikappa Chettiar and the Supreme Court's application in National Sewing Thread) to conclude that where ordinary courts are seized of disputes, ordinary procedural rules apply and appeals lie in accordance with those rules if the special statute is silent.
Application to present facts: Because the Judge, 2nd Bench, functioned as a Civil Court trying a section 16 suit and because the Rent Control Act was silent on appeals from interlocutory orders in such suits, the Court held that the Code of Civil Procedure applies. Consequently, Order 9, rule 13 CPC applied to the setting-aside application and an order rejecting such an application is appealable under section 104(1)(i) read with Order 43, rule 1(d) of the Code.
Forum for appeal: Section 106 of the Code provides that an appeal from an order made in a suit lies to the same court to which an appeal from the decree would lie. A decree under section 16 lies to the Bench specified in section 32(6) of the Rent Control Act (i.e., a Bench of the Chief Judge and another Judge). Therefore the proper forum for the appeal was the Special Bench contemplated by section 32(6).
Conclusion on the Special Bench's order: The Special Bench was in error to hold that no appeal lay; the appeal was competent and properly filed. The Court set aside the Special Bench's order and remitted the matter to a Special Bench constituted under section 32(6)(ii) of the Rent Control Act for decision according to law.

Holding and Implications

HOLDING: The Court held that the Code of Civil Procedure applies to suits instituted under section 16 of the Rent Control Act, 1950; consequently Order 9, rule 13 of the Code is applicable and an order rejecting an application under that rule is appealable under section 104(1)(i) read with Order 43, rule 1(d) of the Code. The Special Bench's order holding that no appeal lay was set aside and the matter was remitted to a Special Bench under section 32(6)(ii) of the Rent Control Act for determination according to law.

Direct consequences for the parties:

The rule (obtained by the defendant petitioner) was made absolute.
The order of the Special Bench dated June 17, 1952, is set aside and the appeal must be decided by a Special Bench as contemplated by section 32(6)(ii) of the Rent Control Act, 1950.
The plaintiff opposite party was ordered to pay the costs of the rule hearing — fee of 3 gold mohurs.

The opinion does not expressly identify any broader legal consequences beyond directing that the appeal be decided according to law and awarding costs; it primarily resolves the procedural question whether the Code applies and which forum is competent to hear the appeal.

(End of summary of the provided opinion.)

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Sahadat Khan v. Manammad Hossain Opposite Party.

1. This rule was obtained by the defendant petitioner and is directed against an order dated June 17, 1952, passed by Shri S.C Sen Gupta, Chief Judge, and Shri S.K Roy, Judge, 6th Bench, Court of Small Causes, Calcutta, dismissing an appeal from an order dated May 3, 1952, passed by Shri P.M Lahiri, Judge, 2nd Bench.

2. The facts are as follows:—

In 1951, the plaintiff opposite party instituted a suit for ejectment of the defendant petitioner on the ground that he reasonably required the portion of the premises No. 3, Ripon Lane, Calcutta, held by the defendant petitioner as his tenant at a rent of Rs. 60 per month, for his own use and occupation. The suit was valued at Rs. 720 only.

3. The suit was decreed ex parte on January 14, 1952, and in execution of the said decree the plaintiff opposite party took possession. The defendant petitioner thereupon filed an application under Order 9, rule 13, Civil Procedure Code, for setting aside the ex parte decree on the ground that no notice or summons of the suit was served on him and that he came to know of the suit for the first time when the plaintiff opposite party took possession. The application was dismissed on May 3, 1952, by Shri P.M Lahiri, Judge, 2nd Bench.

4. Against this order the defendant petitioner filed an appeal before a Special Bench constituted in accordance with section 32(6)(ii) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, hereinafter called the Rent Control Act, 1950. The appeal was heard by a Special Bench consisting of the Chief Judge and the Judge, 6th Bench, and was dismissed on June 17, 1952. The appeal was dismissed on the ground that no appeal lay from the order of the Judge, 2nd Bench. The Special Bench did not record any reasons for the view taken by it.

5. Against the order of the Special Bench the defendant petitioner moved this Court in revision under section 115 of the Code of Civil Procedure and obtained the present rule.

6. Mr. Sen, learned Advocate for the defendant petitioner, has contended that an appeal lay from the order of the Judge, 2nd Bench, to the Special Bench.

7. Mr. Bagchi, learned Advocate for the plaintiff opposite party, has, on the other hand, urged that the Rent Control Act, 1950, provides for an appeal merely from a decree in a suit for ejectment and necessarily excludes a right of appeal from an order passed in such a suit.

8. The Rent Control Act, 1950, has provided for a special forum for the trial of suits for recovery of possession of premises to which the Act relates. Section 16 of the Act provides that such a suit for ejectment “shall lie to the Courts as set out in Schedule B”.

9. Schedule B(1)(ii) provides that where the disputed premises are situate within the ordinary original jurisdiction of the Calcutta High Court and the rent thereof for one month is less than Rs. 500, the Chief Judge of the Calcutta Court of Small Causes “shall entertain and try the suit as a Court of the District Judge under the Bengal, Agra and Assam Civil Courts Act, 1887.” The rule is subject to a proviso that the Chief Judge “shall be entitled to transfer the suit for trial to any other Judge of the Calcutta Court of Small Causes, who shall try it as a Court of the Subordinate Judge under the Bengal, Agra and Assam Civil Courts Act, 1887.”

10. In pursuance of the above rule the instant suit for ejectment was filed before the Chief Judge and on transfer, was heard by the Judge, 2nd Bench. The suit was accordingly heard and disposed of by the latter as a Subordinate Judge.

11. The question is whether the procedure before the Judge, 2nd Bench, was governed by the Code of Civil Procedure.

12. The Rent Control Act, 1950, does not specifically make the Code of Civil Procedure applicable to a suit under section 16 of the Act. The preamble and section 1 of the Code of Civil Procedure make the Code applicable to all proceedings before a Court of Civil Judicature. Section 16 and Schedule B of the Rent Control Act, 1950, specifically provide that the Chief Judge or any other Judge of the Calcutta Court of Small Causes shall, while trying a suit under section 16, function as a Court under the Bengal, Agra and Assam Civil Courts Act, 1887, i.e, as a Court of Civil Judicature. Accordingly the procedure before the Chief Judge or any other Judge of the Calcutta Court of Small Causes, trying a suit under section 16 of the Rent Control Act, 1950, shall be governed by the Code of Civil procedure.

13. Mr. Bagchi drew our attention to rules 8 and 9 of the West Bengal Premises Rent Control Act, 1950, and contended that as these rules provide for a limited application of the Code of Civil Procedure, the implication must be that the general application of the Code of Civil Procedure is excluded. The above rules deal with specified cases, viz., summoning of witnesses, etc., and the procedure for certain inquiries. The object of framing these rules was to lay down a procedure diverging from that laid down in the Code of Civil Procedure. The intention was not to exclude other provisions of the Code of Civil Procedure.

14. Mr. Bagchi also referred us to section 4 of the Code of Civil Procedure and submitted that the section excluded the applicability of the Code to proceedings under the Rent Control Act, 1950. This argument is based on a misreading of section 4 of the Code of Civil Procedure. That section merely lays down that the Code of Civil Procedure shall, not “limit or affect any special or local law”, in other words, the provisions of the Code of Civil Procedure which run counter to the special or local law, are excluded. The section does not bar the applicability of the Code where the special or local law is silent.

15. I shall now refer to the judicial decisions on this question.

16. In the case of Mirabala Dasi v. Bina-pani Dassi (1) (56 C.W.N 761), a Bench of this Court (Das Gupta and Lahiri, JJ.) held that ‘“the consequence of the provisions of Schedule B indicated above is that the Code of Civil Procedure is fully applicable to the trial of these suits and to appeals from decrees made therein” (p. 763).

17. In file cases of Bhupeshchandra Dutt v. M.N Bose (2) (56 C.W.N 832) and Sheo Sankarlal v. Bijoy Krishna Dutt (3) (57 C.W.N 65), the applicability of order 21, rule 97 of the Code of Civil Procedure to proceedings in execution of a decree in a suit under section 16 of the Rent Control Act, 1950, was assumed. Again in the case of S.N Talapatra… v. M/S Bengal Bonded Warehouse & Anr.…Opposite Parties., (4) (57 C.W.N 455), the applicability of Order 21, rule 100 of the Code to proceedings in execution of a decree in a suit under section 16 of the Rent Control Act, 1950, was assumed.

18. In a recent Bench decision of this Court, to which I am a party, viz., the case of Dalhousie Traders Ltd. v. Md. Sadik (5) [S.M.A, 21 of 1933, decided on July 30, 1953 (since reported in 57 C.W.N 945— Ed.)] it was held that section 47 of the Code of Civil Procedure was applicable to proceedings in execution of a decree made in a suit under section 16 of the Rent Control Act, 1950, and that an appeal lay to the Special Bench constitute J under section 32(6) of the Rent Control Act, 1950.

19. The above discussion leads me to hold that the Code of Civil Procedure applies to suits filed under section 16 of the Rent Control Act, 1950.

20. The same conclusion is reached on general principles governing similar cases.

21. The principle was thus stated by the Judicial Committee of the Privy Council in the case of R.M.A.R.A Adaikappa Chettiar v. R. Chandrasekhare Thevar, (6) (L.R 74 I.A 264 : 52 C.W.N 275):

“The true rule is that where a legal right is in dispute and the ordinary courts of the country are seized of such dispute, the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal.”

22. The above principle has been applied by the Supreme Court in the case of National Sewing Thread Co., Ltd. v. James Chadwick and Bros. Ltd. (7) [(1953) S.C.A 610 (615)].

23. My conclusion therefore is that the Code of Civil Procedure is attracted in the instant case. Accordingly Order 9, rule 13, of the Code is applicable and an order rejecting an application under Order 9, rule 13 is appealable under section 104(1)(i) read with Order 43, rule 1, clause (d) of the Code.

24. Mr. Bagchi, however, contended that Chapter VII of the Rent Control Act, 1950, was exhaustive of the cases in which an appeal lay against an order made in proceedings under the Act.

25. The contention has no force. Section 32(1)(2) (3) deals with appeals from any final order of a Rent Controller. Section 32(4) confers on the High Court the power of revision in respect of an order made in appeal from a final order of the Rent Controller.

26. Section 32(5) confers powers of amendment or review of orders made by the Rent Controller or the Appellate Officer or the High Court in relation to proceedings initiated before the Rent Controller.

27. Thus sub-sections (1) to (5) of sec. 32 do not deal with suits filed under section 16 of the Rent Control Act, 1950.

28. Section 32(6) of the Act does not expressly provide that an appeal shall he from a decree passed in a suit under section 16 of the Act. It merely prescribes the forum of the appeal from a decree in a suit under section 16 of the Act. Of course the implication is that an appeal lies. The relevant words are “an appeal shall be………”

29. The position therefore is that the Rent Control Act, 1950, is silent on the question whether an appeal lies against an order made in a suit under section 16 or in proceedings in execution of a decree made in such a suit.

30. In such a case, the principles enunciated in Adaikappa's case (6) (supra), cited already, clearly apply. A legal right as between the plaintiff opposite party and the defendant petitioner was in dispute. The Judge, 2nd Bench, who had to decide the dispute, functioned as a Civil Court. Accordingly, the order made by him was appealable in accordance with the ordinary rules of procedure, i.e, the Code of Civil Procedure. An appeal lay against an order made by the Judge, 2nd Bench, even though the special or local act, i.e, the Rent Control Act, 1950, was silent.

31. The question still remains to what forum the appeal shall lie.

32. I have held that the Code of Civil Procedure shall apply in the present case.

33. Section 106 of the Code provides that an appeal from an order made in a suit shall lie “to the Court to which an appeal shall lie from the decree in the suit in which such order was made.”

34. A decree in a suit under section 16 of the Rent Control Act, 1950, lies to the Courts specified in section 32(6) of the Act, i.e, to a Bench of the Chief Judge and a Judge other than the Judge who tried the suit or made the order appealed from.

35. The appeal was therefore competent and was properly filed.

36. The Special Bench was therefore in error in holding that no appeal lay in the present case.

37. In the result, the order of the Special Bench complained of must be set aside and the matter remitted to a Special Bench as contemplated by section 32(6)(ii) of the Rent Control Act, 1950, for decision of the appeal according to law.

38. The Rule is made absolute. The plaintiff opposite parties must pay the costs of the rule— hearing-fee 3 gold mohurs.

A.K.D.G

Sahadat Khan v. Manammad Hossain Opposite Party.

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Defendant Petitioner (Mr. Sen)

Plaintiff Opposite Party (Mr. Bagchi)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sahadat Khan v. Manammad Hossain Opposite Party.

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