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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Bhabesh Narayan Bose
  • Nani Kumar Chakravarty
Judges
  • S.R Das Gupta
  • Mallick, JJ.
Acts
  • section 115 of the Code of Civil Procedure.Mallick, J.: I agree.A.K.D.G
  • sub-section 2 of section 2 of the Code of Civil Procedure
  • section 47 of the Code of Civil Procedure.6.
  • section 47 of the Code of Civil Procedure.2.
  • section 47 of the Code of Civil Procedure
  • provisions of sub-section 6 of section 32
  • section 13(1) of the Rent Act of 1950.
  • section 16 of the Rent Act of 1949,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Bhabesh Narayan Bose
  • Nani Kumar Chakravarty
Judges
  • S.R Das Gupta
  • Mallick, JJ.
Acts
  • section 115 of the Code of Civil Procedure.Mallick, J.: I agree.A.K.D.G
  • sub-section 2 of section 2 of the Code of Civil Procedure
  • section 47 of the Code of Civil Procedure.6.
  • section 47 of the Code of Civil Procedure.2.
  • section 47 of the Code of Civil Procedure
  • provisions of sub-section 6 of section 32
  • section 13(1) of the Rent Act of 1950.
  • section 16 of the Rent Act of 1949,
See more information ...
Smart Summary

Structured Summary of the Opinion delivered by S.R. Das Gupta, J.

Factual and Procedural Background

The appellants claim to be sub-tenants of premises No. 13, Pagoapatty Street, Calcutta. The landlords obtained an ejectment decree in the Court of Small Causes against a tenant of those premises and proceeded to execute that decree. In the execution proceedings the present appellants and other persons, claiming to be sub-tenants, filed objections by way of an application purportedly under section 47 of the Code of Civil Procedure (CPC). The appellants contended that, by virtue of provisions of the Rent Act, they had become direct tenants of the landlord and were therefore entitled to remain in the premises.

The Small Causes Judge dismissed the application, holding that the petitioners' rights could not be enquired into in an application under section 47 CPC and that their proper remedy was to file a suit. An appeal against that order was preferred to the Special Bench of the Court of Small Causes. The Special Bench refused to entertain the appeal, referring to sub-section 6 of section 32 (as interpreted by that Bench) and holding that an appeal lies only from a decree in a suit for ejectment passed by a Judge of the Small Causes Court, and not from the order in question. The present appeal to this Court challenges the Special Bench's refusal to entertain the appeal.

The opinion also notes a related Bench decision (Nityannanda Kapuria v. Parbati Nath Dutta) involving other sub-tenants of the same premises, where a different procedural direction (to treat the application as a suit on payment of additional court fees) had earlier been given by a Bench of this Court.

Legal Issues Presented

  1. Whether the Special Bench of the Court of Small Causes was obliged to entertain and decide the question whether the application filed by the appellants fell within section 47 of the Code of Civil Procedure (i.e., whether the Special Bench erred in refusing to entertain the appeal).
  2. Whether the appellants' application (sub-tenants claiming statutory tenant rights under the Rent Act) can, as a matter of law, be determined in proceedings under section 47 of the Code of Civil Procedure.
  3. Whether the Court of Small Causes Judge, having dismissed the application under section 47, can be directed to treat that application as a suit on payment of ad valorem/ additional court-fees (as had been directed in a prior Bench decision) and therefore try the matter.
  4. Whether the Court of Small Causes has jurisdiction to try the kind of title/declaratory claim the appellants assert (in particular in light of section 16 of the Rent Act and the limitation of jurisdiction to suits for ejectment/possession).

Arguments of the Parties

Appellants' Arguments

  • The Special Bench was wrong in refusing to entertain the appeal and should have considered whether the application filed by the appellants falls within section 47 of the Code of Civil Procedure — i.e., whether the matter raised can be determined under section 47.
  • In the alternative, relying on an earlier decision (Nityannanda Kapuria v. Parbati Nath Dutta), the appellants argued that the matter should be sent back to the Judge of the Small Causes Court and he should be directed to treat the application as a suit on payment of the additional/ad valorem court-fees so the rights claimed could be adjudicated.

The opinion does not set out detailed arguments advanced by the landlords or the special bench beyond the reasoning of the courts as recorded.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Nityannanda Kapuria v. Parbati Nath Dutta (1) (58 C.W.N 407) The right claimed by a sub-tenant is independent of the tenant's right; a sub-tenant is not a privy or representative of the tenant, and therefore the right claimed by a sub-tenant cannot be enquired into or ascertained in a proceeding under section 47 CPC. The Court respectfully agreed with that view and applied it to hold that the appellants' application cannot be determined under section 47 CPC. The Court nevertheless declined to follow the procedural direction (to treat the application as a suit on payment of fees) given in that case because of jurisdictional limits under the Rent Act.

Court's Reasoning and Analysis

The Court proceeded in a series of legal steps:

  1. Procedural entitlement to decision by Special Bench: The Court agreed with the appellants' first contention that, as a matter of law, the Special Bench should have gone into the question whether the application came within section 47 CPC. The Court relied on sub-section 2 of section 2 CPC, which defines "decree" to include determination of any question within section 47; consequently, the Judge who passed the ejectment decree could determine questions falling within section 47 and the Special Bench had a duty to decide whether the trial Judge's view was correct.
  2. Merits — whether the application falls within section 47 CPC: Although the Special Bench ought to have considered the point, the Court concluded on the merits that the present application clearly does not come within section 47 CPC. The Court relied on the reasoning in Nityannanda Kapuria v. Parbati Nath Dutta: a sub-tenant's claim (here, a statutory right claimed under section 13(1) of the Rent Act, 1950) is independent of the tenant's rights and cannot be determined in a section 47 proceeding. Therefore the proper remedy for the appellants was to file a regular suit for determination of that right.
  3. Whether the lower Judge can be directed to treat the application as a suit: The appellants relied on the earlier Bench direction in Nityannanda to have the trial Judge treat the application as a suit on payment of additional court-fees. The Court rejected that course here because section 16 of the Rent Act (referred to in the opinion as the Rent Act of 1949 and the Courts mentioned in Schedule B) confines the jurisdiction of the Courts in Schedule B to suits for ejectment/possession only. If the trial Judge were to treat the application as a plaint, the resulting proceeding would not be a suit for ejectment but a title/declaratory suit to determine the appellants' independent rights — something the Small Causes Court lacks jurisdiction to try under section 16. The Court therefore concluded it could not direct the Judge to treat the application as a suit even if ad valorem court-fees were paid.
  4. Interim relief and procedural consequence: Recognising the appellants' desire to file a substantive suit, the Court granted a limited, pragmatic remedy: ten days' time from the date of the order for the appellants to file a suit in the Original Side of this Court and, if advised, to seek an injunction against the landlords preventing them from obtaining possession. During the ten-day period there is a stay of execution and the landlords are restrained from obtaining possession from the appellants.
  5. Final procedural orders: The Court dismissed the appeal otherwise, assessed costs and hearing-fee (two gold mohurs), and made no order on the alternative application under section 115 CPC.

Holding and Implications

Holding:

The appeal is dismissed (except for the limited stay and time granted to file suit). Concretely:

  • The Special Bench should have considered whether the application fell within section 47 CPC, but on the merits the Court finds that the appellants' application does not come within section 47 and that their rights cannot be determined in a section 47 proceeding.
  • The Court will not remit the matter to the Special Bench for that determination because it is clear the application does not fall within section 47 CPC.
  • The Court will not direct the Small Causes Judge to treat the application as a suit on payment of ad valorem court-fees because the Small Causes Court lacks jurisdiction to try the title/declaratory suit that the appellants' claim would amount to (section 16 of the Rent Act limits jurisdiction to suits for ejectment/possession).
  • The appellants are granted ten days from the date of the order to file a suit in the Original Side of this Court and seek an injunction; execution is stayed for that ten-day period and the landlords are restrained from taking possession during that period.
  • The appeal is otherwise dismissed with costs; hearing-fee is assessed at two gold mohurs. No order is made on the alternative application under section 115 CPC.

Implications:

  • The Court affirms the legal principle (as applied in the cited precedent) that a sub-tenant's statutory right is independent of the tenant and generally cannot be determined in section 47 CPC proceedings instituted in execution of a tenant's decree.
  • The decision makes clear a jurisdictional limit: a Small Causes Court (under the Rent Act provisions referenced) cannot be directed to entertain or convert an interlocutory application into a title suit when that conversion would require the Court to try claims beyond suits for ejectment/possession.
  • No broader precedent-changing rule was declared beyond application of established principles and the jurisdictional interpretation: the immediate practical consequence is the dismissal of the appeal and the limited procedural relief (ten-day stay and opportunity to file suit in the Original Side). The Court did not accept the procedural remedy that a prior Bench had ordered in the related case for this set of appellants because of the jurisdictional constraint.

Judge Mallick agreed with the judgment as recorded. The opinion contains no further party submissions or factual detail beyond what is summarized above.

Show full summary ...

    Khetramohan Manimohan Saha v. Parbati Nath Dutta And Ors.,

    The Judgment of the Court was delivered by

    S.R Das Gupta, J.:— This is an appeal against an order of the Special Bench of the Court of Small Causes, refusing to entertain an appeal against an order of a Judge of the Small Causes Court, passed on an application purported to be an application under section 47 of the Code of Civil Procedure.

    2. The appellants before us claims to be a sub-tenant in respect of premises No. 13, Pagoapatty Street, Calcutta. There was an ejectment decree obtained by the landlords in the Court of the Small Causes against a tenant of the said premises. The landlords having obtained the decree for ejectment applied for execution. In the said execution proceedings an objection was filed by the present appellant, and others claiming to be sub-tenants of the original tenant. The contention of the appellants and the other sub-tenants was that by virtue of the provisions of the Rent Act, they had become direct tenants of the landlord and as such they are entitled to remain in the premises as tenants. The learned Judge dismissed the application holding that the petitioners' rights cannot be enquired into in an application under section 47 and the proper remedy of the appellants was to file a suit. Against that order an appeal was preferred to the Special Bench of the Court of Small Causes. The Special Bench, held that such an appeal cannot be entertained by the said Bench. The learned Judges referred to the provisions of sub-section 6 of section 32 and held that under the said provisions an appeal lies only from a decree in a suit for ejectment passed by a Judge of the Small Causes Court and an appeal from the order in question cannot be entertained. It is against that order that the present appeal has been preferred to this Court. I should mention that the remaining sub-tenants had also preferred an appeal to this Court and so far as their cases are concerned a Bench of this Court has held that although the right claimed by them cannot be enquired into or ascertained in a proceeding under section 47 of the Code of Civil Procedure, the learned, Judge should treat the application as a suit on payment of additional court-fees by the appellant before their Lordships.

    3. In the present appeal the learned Advocate appearing for the appellants raised two contentions. In the first place, he contended that the Special Bench was wrong in not entertaining the appeal. In other words, his contention was that the Special Bench should have gone into the question as to whether or not the appellants could file such application under section 47 of the Code of Civil Procedure, or whether remedy of the appellants was to institute a regular suit as held by the said Court. The learned Advocate contended that this question as to whether or not the application comes within section 47 is a question which the Special Bench should have decided.

    4. As a pure question of law, we are of the opinion that the learned Advocate is right in his contention that the question as to whether or not the application comes within section 47 should have been gone into by the Special Bench. Under sub-section 2 of section 2 of the Code of Civil Procedure a “decree” includes determination of any question within section 47. So the learned Judge of the Court of Small Causes, who passed the decree for ejectment could also determine all questions coming within section 47 of the Code relating to the said decree. In, this case the view taken by the trial Court was that the question raised by the appellants in the said application was not a question which can be determined in a proceeding under section 47 of the Code and the said Court dismissed the application holding that the proper remedy of the appellants was to file a suit. How then is it to be determined as to whether or not the view taken by the learned Judge was right? In our opinion, the Special Bench should have gone into the question and come to a decision as to whether or not the application filed by the appellants before the lower court was an application which comes within section 47 of the Code. In other words, the Special Bench should have gone into the question as to whether or not the matter raised in the said application can be determined in a proceeding under section 47 of the Code. It cannot be that because the trial court has held that an application made by a certain party does not come within section 47 of the Code, the matter is concluded by his decision and there is no right of appeal against the same. It may be that the learned trial Judge was wholly wrong in taking that view and if that is so, then his decision should be set aside by the Special Bench. We agree with this contention of the learned Advocate for the appellants.

    5. But the question is, even if we have held that the Special Bench should have gone into the question, should we send the matter back again to the Special Bench to determine it? If we had doubt on the question as to whether or not the application made by the appellants before the lower appellate Court comes within section 47 of the Code we would have certainly sent the matter back to the Special Bench to consider the said question. But in our opinion it is quite clear that the present application of the appellants does not come within section 47 of the Code of Civil Procedure and the question raised in the said application cannot be gone into in a proceeding under section 47. That is also the view which has been taken by a Bench of this Court in the case of Nityannanda Kapuria v. Parbati Nath Dutta (1) (58 C.W.N 407). The same contentions which are raised before us were also raised by the appellants in that case. I should mention that the appellant in that case was one of the other sub-tenants in respect of the said premises who had; made similar applications before the trial court. Mr. Justice Lahiri in in delivering judgment observed that the right claimed by a sub-tenant was independent of the right of the tenant and for that reason a sub-tenant cannot be said to be a privy to the judgment pronounced against the tenant and he is not a representative of the tenant. In the premises, his Lordship held, that the right claimed by a sub-tenant cannot be enquired into; or ascertained in a proceeding under section 47 of the Code of Civil Procedure. We respectfully agree with that view. The appellant before us have claimed that he has acquired the, statutory right of a tenant under section 13(1) of the Rent Act of 1950. That right is clearly not a right claimed by the appellant through the tenant and is a right independent of the tenant. In our opinion, such a right cannot be gone into in an application under section 47 of the Code of Civil Procedure and the proper remedy of the appellant would have been to file a regular suit for the determination of that right. In these circumstances, we are of the opinion that no useful purpose would be sered by sending the matter back to the Special Bench for the determination of the question as to whether or not the application made before the lower court comes within section 47 of the Code of Civil Procedure.

    6. The learned Advocate for the appellants then contended before us that the matter should be sent back to the Judge of the Small Cause of Court and he should be asked to treat the application as a suit on payment of the additional court-fees by his client. He referred us to the order which was made by this Court in the said case of Nityananda Kapuria v. Parbati Nath Dutta (1) (supra). There, as I have already mentioned the learned Judges directed that the matter should be sent back and the learned Judge to treat the application as a suit on payment of the additional court-fees by the appellant. The learned Advocate contended before us that in this case we should also follow the same course. We are unable to accept this contention of the learned Advocate. In our opinion, the application cannot be treated by the learned Judge of the Court of Small Causes as a suit even though the ad valorem court-fees be paid by the appellants. Under section 16 of the Rent Act of 1949, the Courts, mentioned in Schedule B of the said Act, can exercise jurisdiction only in a suit for ejectment.

    7. The suit which the; learned Judge will be directed to try, if he is asked to treat the application as a suit, would not be a suit for ejectment but would be a suit for determination of the rights of the appellants as a tenant. In other words the suit which the Small Cause Court Judge would be trying, if he is to treat the application as a plaint, would be a Title Suit. This the Small Cause Court Judge cannot do and section 16 is a special provision giving jurisdiction to that Court only in respect of suits for possession. We do not see how the Court below can determine a suit which is not a suit for possession but is really a suit for declaration of title. In this view of the matter we are of opinion that the) Small Cause Court has no jurisdiction to try a suit for declaration that the appellants has become a direct tenant under the landlords. It does not appear that this aspect of the matter was presented before the learned Judges who decided the case of Nityananda Kapuria v. Parvati Nath Dutta (1) (supra). In any event, we very respectfully disagree with the view taken by their Lordships in that case on this point. We do not think we can make an order directing the learned Judge to treat the application of the appellants as a suit and to try the same even on payment of ad valorem duty. The learned Judge, as we have indicated, has no jurisdiction to entertain such a suit. In the result this contention of the learned Advocate must also fail.

    8. Before concluding my judgment, I ought to mention that the learned Advocate wanted some reasonable time to enable his client, if he is so advised, to file a suit on the Original Sdie of this Court and get an injunction against the landlords restraining them from getting possession of the premises, and during that time he wanted a stay of the execution proceedings so that the landlords may not take possession of the premises. We consider the, request to be reasonable. We also grant the appellant ten days' time from date to file a suit and get an order of injunction, if he is advised to do so.

    9. During the period of ten days there will be a stay of execution and the landlords will be restrained from obtaining possession of the premises in question from the appellant.

    10. The appeal is otherwise dismissed with costs, hearing-fee being assessed at two gold mohurs.

    11. There will be no order on the alternative application under section 115 of the Code of Civil Procedure.

    Mallick, J.:— I agree.

    A.K.D.G

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    Comments

    Khetramohan Manimohan Saha v. Parbati Nath Dutta And Ors.,
    (Jul 12, 1954)