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Case Number

A.F.O.D No. 931 of 1966

Attorney(S)

Manindranath Ghose and Jamini Kumar Banerjee
Mukul Prokash Banerjee

Judges

Chittatosh Mookerjee, J.

Acts

Clause (1) of Schedule B of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950
schedule of the West Bengal Premises Tenancy Act. Section 22 of the City Civil Court Act, 1953
Section 5(2) of the City Civil Court Act, 1953, subject to the provisions of sub-sections (3)
City Civil Court. Sub-section (6) of Section 29 of the West Bengal Premises Tenancy Act
provisions of West Bengal Premises Rent Control (Temporary Provision) Act, 1950
City Civil Court Act and the West Bengal Premises Tenancy (Amendment Act, 1957)
West Bengal Premises Tenancy Act, Section 6 of the City Civil Courts Act, 1953,
provision similar to Section 29(6) of the West Bengal Premises Tenancy Act.
SECTION 17 A WEST BENGAL PREMISES TENANCY ACT
West Bengal Premises Rent Control (Temporary Provisions) Act, 1950
City Civil Court Act Section 8(1)(a) of the City Civil Court Act
West Bengal Premises Rent Control (Temporary Provision) Act, 1950
Section 17(1) of the West Bengal Premises Tenancy Act
SECTION 13 WEST BENGAL PREMISES TENANCY ACT
Section 2(2) of the CPC. Under Section 96 of the CPC
Section 2(2) of the Code and the provisions of CPC
West Bengal Premises Tenancy (Amendment) Act, 1957.
SECTION 76 TRADE MARKS ACT 1940
SECTION 8 CITY CIVIL COURT ACT
SECTION 5 CITY CIVIL COURT ACT
WEST BENGAL PREMISES TENANCY ACT 1956
WEST BENGAL PREMISES TENANCY ACT
Assam Civil Courts Act, 1887
Assam Civil Courts Act
Rent Control Act

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The plaintiff-respondents brought a suit in the City Civil Court at Calcutta for ejectment and recovery of khas possession of the premises described in the plaint's schedule. The learned Judge, 5th Bench, City Civil Court at Calcutta, decreed the suit in favour of the plaintiff-respondents. The defendant-tenant (appellant) appealed to the High Court.

On the merits, the plaintiff-landlord alleged that the defendant had defaulted in payment of rent since May 1961. The trial court found the defendant to be a defaulter for that period. The appellant (defendant) within one month of service of the summons filed a petition under Section 17(1) of the West Bengal Premises Tenancy Act seeking permission to deposit arrears (May 1961 to October 1963) with interest. The learned Registrar of the City Civil Court allowed the deposit, permitting it to be made entirely at the appellant's risk. The defendant deposited the arrears and thereafter continued to deposit month-by-month sums equivalent to rent within the 15th day of each succeeding month.

Legal Issues Presented

Whether an appeal lies from a decree for recovery of khas possession passed by the City Civil Court under the West Bengal Premises Tenancy Act (i.e., whether the Tenancy Act ousts the ordinary right of appeal).
Whether the City Civil Court's decree in an ejectment suit is a "decree" for the purposes of the Code of Civil Procedure (Section 2(2)) and whether appeals are governed by the CPC and the City Civil Court Act.
Whether the defendant, having deposited arrears under Section 17(1) of the West Bengal Premises Tenancy Act and complying with subsequent monthly deposits, is entitled to relief under sub-section (4) of Section 17 of that Act.

Arguments of the Parties

Respondents' Arguments (as presented by Mr. Banerjee)

The West Bengal Premises Tenancy Act, 1956 is a self-contained code and does not provide for an appeal against a decree for recovery of khas possession passed by a court competent under Section 20 of the Act; therefore this appeal is not maintainable in law.
Reference was made to the Second Schedule to the City Civil Court Act, 1953 and the amendments affecting jurisdiction (including references to the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 and subsequent changes), to support the contention that appeals are not available as of right in this context.

Appellant's Arguments (as presented by Mr. Ghosh)

The appellant did not dispute the trial court's finding that he was a defaulter. He relied on his petition under Section 17(1) of the West Bengal Premises Tenancy Act: he had been permitted by the Registrar to deposit the arrears (May 1961 to October 1963) at his risk, and he had in fact deposited the arrears and continued monthly deposits; thus he sought relief under sub-section (4) of Section 17.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
N.S. Thread and Co. v. James Chadwick and Brothers, AIR 1953 SC 357	When an appeal lies to an already established court, the practice and procedure of that court (including ordinary incidents of procedure and the right of appeal) attach.	The Court relied on this Supreme Court authority to hold that when the City Civil Court passes a decree for ejectment, such decree is subject to appeal; the ordinary right of appeal attaches.
National Telephone Co. Ltd. v. Post Master General, 1913 AC 546 (Viscount Haldane L.C.)	The statement that reference to an established court imports that the ordinary incidents of the procedure of that court apply and, generally, the right of appeal from its decision attaches.	Quoted with approval (by Mahajan, J., in the Supreme Court decision) and treated as supporting authority for the proposition that appeals follow where a dispute is referred to an established court.
Adaikappa Chettiar v. Chandra Sekhara Thevar, 74 Ind App 264 : AIR 1948 PC 12	Where a legal right is in dispute and ordinary courts are seized of such disputes, those courts are governed by ordinary rules of procedure and an appeal lies if authorised by such rules notwithstanding a special statute not in terms conferring appeal.	Relied upon to support the view that even where rights arise under a special statute, ordinary appellate rights apply when ordinary courts are exercising jurisdiction.
Jamuna Bala's case, (1960) 64 Cal WN 678	Considered the forum of appeal from decrees in ejectment suits (did not decide whether an appeal lies at all).	The Court noted that this decision did not deal with the maintainability of an appeal but only with the forum; therefore it was unnecessary to examine it further for the present question.
Mirabala Dassi v. Binapani Dassi, AIR 1954 Cal 163	Held that a decree for ejectment under the Rent Control Act was a decree within the meaning of Section 2(2) of the Code and that CPC provisions would apply.	Referred to as precedent where decrees under rent-control legislation were treated as "decrees" within CPC meaning and CPC procedures (including appeals) applied.
Dalhousie Traders Ltd. v. Mahammad Sadique, AIR 1954 Cal 220	Similar holding that ejectment decrees under rent-control legislation are "decrees" under Section 2(2) CPC and CPC applies to suits and appeals.	Used as supporting Calcutta decisions that CPC applies to such proceedings even under special rent legislation.
Sahadat Khan v. Mohammad Hossain, AIR 1954 Cal 347	Held that decrees under the Rent Control Act were within the meaning of CPC definitions and CPC provisions apply.	Referred to as part of the line of Calcutta decisions establishing that CPC procedures (including appeals) apply to ejectment decrees under rent-control laws.
Newton Hickie v. Official Trustee of West Bengal, 58 Cal WN 819 : AIR 1954 Cal 506	Considered competency of the Court of Small Causes to try ejectment suits and described the Chief Judge (and Judges exercising transferred jurisdiction) as special creatures of the Rent Control Act exercising specified jurisdiction.	Referred to in relation to historical special jurisdiction of the Court of Small Causes; used to explain why earlier specific statutory conferment of powers was necessary, but not material after amendments creating the City Civil Court's jurisdiction.

Court's Reasoning and Analysis

The court addressed two main strands of analysis: (A) the procedural question whether an appeal lies from a decree of the City Civil Court in an ejectment suit governed by the West Bengal Premises Tenancy Act; and (B) the merits question whether, on the facts, the defendant was entitled to relief under Section 17(4) of the Tenancy Act after making deposits under Section 17(1).

(A) On the maintainability of the appeal:

The court reviewed the statutory scheme. It noted that Section 6 of the City Civil Courts Act provides that, save as otherwise provided, the Code of Civil Procedure (CPC), 1908, applies to suits and proceedings under the Act so far as consistent with it. Section 8(1)(a) of the City Civil Court Act provides that an appeal shall lie to the High Court from every decree passed by the City Civil Court. Section 29(6) of the West Bengal Premises Tenancy Act provides that the provisions of the CPC apply to suits and proceedings under Section 20 except those which lie to the High Court.
The court interpreted the word "decree" in the Tenancy Act as having the same meaning as "decree" under Section 2(2) of the CPC, and invoked Section 96 of the CPC which generally provides a right of appeal from every decree of a court exercising original jurisdiction, subject to express statutory exceptions.
Relying on binding and persuasive authority (including the Supreme Court's decision in N.S. Thread and Co. and Privy Council observations), the court held that when a question is referred to an established court, the ordinary incidents of procedure of that court — including the right of appeal — attach. Thus there was nothing in the Tenancy Act that limited or took away the ordinary right of appeal against decrees of a competent court.
The court examined the legislative history and the schedules cited by the respondents but concluded that amendments and schedule omissions (including references to the Bengal, Agra and Assam Civil Courts Act) were not material to the fundamental conclusion that the City Civil Court is governed by CPC procedures and that appeals to this court lie under Section 8(1) of the City Civil Court Act.
The court therefore concluded that appeals from decrees for ejectment passed by the City Civil Court are maintainable.

(B) On the merits — entitlement to relief under Section 17(4):

The court accepted the trial court's finding (which the appellant did not contest) that the defendant had been in default from May 1961. It also accepted the uncontested factual account that the appellant had, within the statutory one-month period, applied under Section 17(1) for permission to deposit arrears and was permitted by the Registrar to do so at his own risk.
The defendant deposited the arrear rents as permitted and thereafter continued to deposit monthly sums equivalent to rent within the 15th day of each succeeding month. On these facts, and because the respondent did not dispute these facts, the court held that the defendant had complied with the requirements of Section 17(1).
Consequently, the court held that the defendant was entitled to relief under sub-section (4) of Section 17 of the West Bengal Premises Tenancy Act. The proviso to sub-section (4) was held not to apply in this case.
Based on the foregoing, the court allowed the appeal, set aside the judgment and decree of the trial court, and dismissed the plaintiffs' suit.

Holding and Implications

Core Ruling: APPEAL ALLOWED.

Direct consequences for the parties:

The High Court allowed the appeal and set aside the judgment and decree of the City Civil Court (trial court).
The plaintiffs' (landlords') suit for recovery of khas possession was dismissed.
The defendant-tenant was granted relief under sub-section (4) of Section 17 of the West Bengal Premises Tenancy Act by reason of complying with Section 17(1) (deposit of arrears and continued monthly deposits).
The plaintiffs-respondents are to recover the costs of the trial court from the defendant-appellant; there is no order as to costs in the appeal itself.

Wider implications: The court applied existing authorities and statutory provisions to hold that the ordinary right of appeal attaches to decrees of the City Civil Court in ejectment suits governed by the Tenancy Act. The opinion applies settled principles rather than purporting to lay down a novel legal principle beyond that application.

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Ganesh Chandra Dutta v. Chunilal Mondal

JUDGMENT

1. The plaintiff-respondents brought a suit in the City Civil Court at Calcutta for ejectment against their tenant who is appellant before me for ejectment and recovery of khas possession of the premises described in the schedule to the plaint. The learned Judge, 5th Bench, City Civil Court at Calcutta has decreed the said suit in favour of the plaintiff-respondents and the defendant tenant has preferred this appeal.

2. Mr. Banerjee, the learned advocate for the respondents has submitted before me that this appeal is not maintainable in law. According to Mr. Banerjee the West Bengal Premises Tenancy Act, 1956, is a self-contained code and no appeal has been provided against a decree for recovery of khas possession of a premises passed by a Court competent to entertain or try such a suit under Section 20 of the said Act.

3. In this connection Mr. Banerjee has also drawn my attention to the schedule of the West Bengal Premises Tenancy Act. Section 22 of the City Civil Court Act, 1953 lays down that the enactments specified in the Second Schedule shall be amended to the extent and in the manner mentioned in the fourth column of the schedule. Originally in the second schedule the substituted subclauses (i) and (ii) and the proviso to Clause (1) of Schedule B of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 were set out. After the enactment of City Civil Court and the West Bengal Premises Tenancy Act, 1957, the reference to the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 were deleted, and it was provided that where the premises are situate on land wholly within the ordinary original Civil Jurisdiction of the Calcutta High Court suit for recovery of possession of a premises would lie in the City Civil Court when the value of the suit or the value of the premises does not exceed Rs. 10,000/-. Where the value of the premises exceeds Rs. 10,000/- suit would lie to the High Court. Under Cl. 2 of the schedule to the West Bengal Premises Tenancy Act where the premises are situate on a land wholly or partly outside the ordinary original Civil Jurisdiction of the Calcutta High Court suit for recovery of possession would lie in the court other than the Calcutta High Court which would have had jurisdiction to try the suit if the West Bengal Premises Tenancy Act was not passed. It is unnecessary to refer to the provisos to clause (1) of the schedule which deal with the suits pending in the City Civil Court and with suit, appeals and proceedings instituted in the Calcutta High Court or in the court of the Chief Judge of the Court of Small Causes and pending at the date of commencement of City Civil Court and West Bengal Premises Tenancy (Amendment) Act, 1957. In my view there is no scope for any argument that no appeal lies against a decree passed by the City Civil Court in a suit for recovery of possession of a premises governed by West Bengal Premises Tenancy Act, Section 6 of the City Civil Courts Act, 1953, lays down that save as otherwise provided, the Code of Civil Procedure 1908, shall apply to all suits and proceedings under this Act, so far as it is consistent with the City Civil Court Act Section 8(1)(a) of the City Civil Court Act provides that an appeal shall lie to the High Court from every decree passed by the City Civil Court. Sub-section (6) of Section 29 of the West Bengal Premises Tenancy Act provides that the provisions of Code of Civil Procedure shall apply to all suits and proceedings referred to in Section 20 except suits and proceedings which lie to the High Court. Section 13 of the West Bengal Premises Tenancy Act also lays down that no order or decree for recovery of possession shall be made except on one or more of the grounds set out in the said Section. Therefore the said expression “decree” in the West Bengal Premises Tenancy Act has the same meaning as the “decree” as defined by Section 2(2) of the CPC. Under Section 96 of the CPC save as otherwise expressly provided in the body of the Code or by any other law for the time being in force an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorised to hear the appeals from the decision of such courts. There is nothing in the West Bengal Premises Tenancy Act limiting or affecting such right of appeal against a decree passed in a suit for recovery of possession. I have already stated that under Section 8 of the City Civil Court Act this court has been authorised to hear appeals from decrees and appealable orders of the City Civil Court.

4. Further the Supreme Court in N.S Thread and Co. v. James Chadwick and Brothers, AIR 1953 SC 357 while considering the question whether an appeal lay under clause 15 of the Letters Patent of Bombay High Court against a decision given by single Judge of the High Court in an appeal preferred under Section 76 of the Trade Marks Act, 1940 considered a number of reported cases on the question and held that when an appeal lies to a court already established then that appeal must be regulated by the practice and procedure of that court Mahajan, J. who delivered the judgment of the Supreme Court quoted with approval the observations of Viscount Haldane L.C in National Telephone Co. Ltd. v. Post Master General, 1913 AC 546 that when a question is stated to be referred to a established Court without more imports that the ordinary incidents of the procedure of that court are to attach and also that in general right of appeal from its decision likewise attaches. The Privy Council in Adaikappa Chettiar v. Chandra Sekhara Thevar, 74 Ind App 264 : (AIR 1948 PC 12) similarly observed that where a legal right is in dispute and the ordinary courts of the country are seized of such disputes 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.

5. On the authority of the said decisions I am bound to hold that when the City Civil Court in the exercise of its jurisdiction passes a decree for ejectment, the same is subject to an appeal.

6. In fact numerous appeals have been heard and disposed of by this Court against decrees passed in suits for a recovery of premises passed by the Civil Court. The decision in Jamuna Bala's case, (1960) 64 Cal WN 678 did not deal with the question whether an appeal at all lies. But the said decision dealt with the question of forum of such appeal. Therefore, it is unnecessary for me to deal with the said case.

7. This Court while considering the provisions of West Bengal Premises Rent Control (Temporary Provision) Act, 1950 have held that the decree for ejectment from a premises governed by the said Act was a decree within the meaning of Section 2(2) of the Code and the provisions of CPC would apply to such suits and appeals. It was held that a suit for recovery of possession under Section 16 of the Act of 1950 was a proceeding in a court of Judicature although the West Bengal Premises Rent Control (Temporary Provision) Act, 1950 did not contain any provision similar to Section 29(6) of the West Bengal Premises Tenancy Act. Reference may be made to the decisions reported in Mirabala Dassi v. Binapani Dassi, AIR 1954 Cal 163, Dalhousie Traders Ltd.…Judgment-Debtor, v. Mahammad Sadique…Plaintiff, ., AIR 1954 Cal 220, Sahadat Khan v. Mohammad Hossain, AIR 1954 Cal 347.

8. The fact that under the schedule under West Bengal Premises Tenancy Act as it stood before it was amended by the City Civil Court Act and the West Bengal Premises Tenancy (Amendment Act, 1957) it was provided that the Chief Judge of the Court of Small Causes, Calcutta shall entertain and try a suit which is cognizable by him as the Court of district Judge under the Bengal, Agra and Assam Civil Courts Act, 1887 was not relevant. A special jurisdiction had been conferred upon the Chief Judge and upon the other Judges of the said court to whom a suit may be transferred by the Chief Judge for trial. It was therefore necessary to expressly confer upon them the powers which are exercised by District Judges and Subordinate Judges under Bengal, Agra and Assam Civil Courts Act.

9. Chakrabarti C.J and S.R Dasgupta J. in Newton Hickie v. Official Trustee of West Bengal, 58 Cal WN 819 : (AIR 1954 Cal 506) considered the question whether the decision of the Court of Small Causes in two suits for ejectment from a premises governed by the West Bengal Premises Rent Control (Temporary Provision) Act, 1950 was Res Judicata or not. Their Lordships held that the Court of Small Causes was not ordinarily competent to try ejectment suits against the tenants. But the Chief Judge of the court functioning as a District Judge and a Judge functioning as a Subordinate Judge were special creatures of the Rent Control Act exercising a specified jurisdiction. Therefore they were courts of a peculiar type.

10. But under Section 5(2) of the City Civil Court Act, 1953, subject to the provisions of sub-sections (3) and (4) the said court shall have jurisdiction and the High Court shall not have jurisdiction to try suits and proceedings of a civil nature not exceeding rupees fifty thousand.

11. I may note that even after the amendment of Section 5 of the City Civil Court Act raising its pecuniary jurisdiction, no corresponding amendment has as yet been made in the Second Schedule to the said Act or in the Schedule to the West Bengal Premises Tenancy Act.

12. Therefore omission of any reference to the Bengal, Agra and Assam Civil Courts Act in relation to the City Civil Court in the Schedule to the West Bengal Premises Tenancy Act, 1956 was not material. Sections 20 and 21 deal with the forum of appeal from the courts constituted under the said Act. But right of appeal is also incident of a decree passed by a court established by the ordinary law and which is governed by the Code of Civil Procedure. The City Civil Court is thus competent to try suits of civil nature upto Rupees 50,000/- subject to the exceptions mentioned in the Act and under Section 8(1) of the Act the appeal lies to this court against the decrees and appealable orders of the said Court. Therefore this appeal is maintainable.

13. The plaintiff landlord alleged that the defendant tenant was a defaulter in payment of rent since May, 1961. The learned Judge of the court below in his judgment under appeal has also found that the defendant was a defaulter in respect of the said period. Mr. Ghosh, learned advocate for the appellant has not disputed the said finding that the defendant was a defaulter as found by the court below. But he has drawn my attention to the fact that the appellant within one month from the date of the service of the summons of the ejectment suit had filed a petition in the trial court under Section 17(1) of the West Bengal Premises Tenancy Act and had prayed for permission to deposit rent from May, 1961 to October, 11963 along with interest. The learned Registrar City Civil Court by his order No. 3 dated 30th September, 1963. permitted him to deposit the same entirely at his risk. I find that the defendant who is appellant before me had deposited the said arrear rent and he also continued to deposit in the trial court month by month within the 15th day of each succeeding month an amount equivalent to rent.

14. Therefore the defendant tenant having fully complied with Section 17(1) of the West Bengal Premises Tenancy Act is entitled to relief under sub-section (4) of Section 17 of the West Bengal Premises Tenancy Act. In fact the learned advocate for the respondents has not disputed the said facts. The defendant tenant did not previously obtain relief under sub-section (4) of Section 17 of the Act and the proviso to subsection (4) does not apply in the instant case. Accordingly I grant defendant relief under sub-section (4) of Section 17 of the Act.

15. In the above view I allow the appeal set aside the judgment and decree of the trial court and dismiss the plaintiffs' suit. The plaintiffs-respondents will get the cost of the trial court from the defendant appellant. There will be no order as to costs in this appeal.

16. Appeal allowed.

Ganesh Chandra Dutta v. Chunilal Mondal

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondents' Arguments (as presented by Mr. Banerjee)

Appellant's Arguments (as presented by Mr. Ghosh)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ganesh Chandra Dutta v. Chunilal Mondal

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