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Amulya Ratan Bhattacharya v. Meghmala Dutt .

Calcutta High Court

Mar 9, 1949

Judgment

Subsequent
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Smart Summary (Beta)

Concise Analytical Summary of the Opinion (Harries, C.J.)

Factual and Procedural Background

The Plaintiff owned premises known as No. 11.A, Ramesh Dutt Street and the Defendant was a monthly tenant of three first-floor rooms at Rs. 21 per month. The Plaintiff served a notice to quit expiring at the end of August 1948 on the ground that she required the rooms for her own occupation and that they were in a ruinous state requiring rebuilding or major repairs. The Defendant refused to give up possession.

Because of a Rent Ordinance then in force the Plaintiff first sought and was refused permission by the Rent Controller to institute an ejectment suit; on appeal the Chief Judge of the Court of Small Causes set aside the Rent Controller's order and granted permission; a review application by the Defendant failed. The Plaintiff instituted a suit for ejectment on 1 September 1948 alleging bona fide need for rebuilding and personal occupation. The Defendant denied these allegations and alleged the premises were in good repair and that the suit was motivated by a rent dispute.

At trial two issues were framed: (1) whether the premises were bona fide required by the Plaintiff for building/rebuilding and/or for her own occupation; and (2) whether the High Court had jurisdiction to try the suit. The trial Judge (Banerjee, J.) found for the Plaintiff on both issues and decreed recovery of possession of the three rooms.

On appeal the principal jurisdictional question turned on section 16 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, which came into force on 1 December 1948 (after the suit was instituted). The Defendant contended that that section ousted the High Court's jurisdiction because the Court of Small Causes was, by that section, the competent forum for such suits.

Legal Issues Presented

Are the premises bona fide required by the Plaintiff for the purposes of building or rebuilding and/or for her own occupation? (trial issue)
Has this Court (the High Court) jurisdiction to try the suit for recovery of possession? (trial and appeal issue)
Whether section 16(1) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, which came into force on 1 December 1948, applies to suits pending in this Court when the Act came into force (i.e., whether the section has retrospective effect to bar pending suits).

Arguments of the Parties

P laintiff's position (as presented in the plaint and at trial)

The Plaintiff alleged she required the rooms bona fide for building or rebuilding and for her own occupation.
The Plaintiff had obtained permission (on appeal) from the Chief Judge of the Court of Small Causes to institute the ejectment suit despite the Rent Ordinance.

Defendant / Appellant's arguments

On the facts the Defendant denied the Plaintiff's allegations: the premises were in good repair and did not require rebuilding or extensive repairs.
The Defendant alleged the suit was a pretext to evict him because he refused to pay an increased rent demanded by the Plaintiff.
As a legal contention, the Defendant/Appellant argued that section 16(1) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 ousted the jurisdiction of the High Court because the Court of Small Causes was competent to try suits for recovery of rent or possession; hence, after 1 December 1948 this Court could not entertain or try the pending suit.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Moon v. Durden (Court of Exchequer)	Statute held not to have retrospective operation to defeat an action instituted before the statute came into force (suit instituted before Act; Act did not apply to pending suit).	The Court relied on this case by analogy to support the view that a statutory provision which purports to bar certain suits does not necessarily apply to suits already pending when the statute took effect.
Beadling v. Goll (Court of Appeal)	Statute (Gaming Act 1922) providing that certain actions shall not be entertained was held not to apply to pending cases (i.e., did not have retrospective effect to bar pending suits).	Used to reinforce the proposition that statutes which appear to prohibit certain suits do not necessarily affect suits already pending when the statute was enacted.
Doolubdas Pettamberdass v. Ramloll Thackoorsey-dass (Privy Council)	Legislative enactment declaring wagering contracts void did not affect existing contracts or actions already commenced; absence of words showing intention to affect existing rights meant no retrospective effect.	The opinion cited this Privy Council decision to support the conclusion that a statute barring a right of action ordinarily will not be construed to apply to actions already commenced unless Parliament's intention to the contrary is clear.

Court's Reasoning and Analysis

The Court's reasoning proceeded in two main strands: (A) the competence of the Court of Small Causes to try the present suit; and (B) whether section 16(1) of the Rent Control Act can be given retrospective effect to apply to suits pending when the Act came into force.

A. Competence of the Court of Small Causes

The Court observed that the present action in the High Court was a suit for recovery of possession seeking a final and conclusive decree determining title between the parties.
The Court examined the provisions of the Presidency Small Cause Courts Act, particularly sections 41–43 which provide for a summary proceeding whereby the Small Cause Court may, if satisfied, direct the bailiff to give physical possession to an applicant on a specified day.
The Court emphasized the summary and non-conclusive nature of the Small Cause Court's power: such orders are challengeable (notably under sections 46, 47 and 49 of the Act), may be stayed pending separate actions (for example, a trespass suit in the High Court) and are not equivalent to a final decree determining title.
Section 19(d) of the Small Cause Courts Act was relied on to show explicitly that the Small Cause Court has no jurisdiction in suits for recovery of immovable property.
Given these statutory limits, the Court concluded the Small Cause Court could not be regarded as "competent to try" a suit seeking a final and conclusive decree for recovery of possession and title; it can only make summary, defeasible orders for physical possession.
Accordingly, section 16(1) of the Rent Control Act (which bars suits that the Small Cause Court is competent to try from being instituted or tried in any Court other than that Court) could not be read to oust the High Court's jurisdiction in respect of the present suit, because the Small Cause Court was never competent to try a conclusive title suit of this character.

B. Retrospective application of section 16(1)

The Court stated it would assume, for argument's sake, that section 16(1) could in principle apply to pending litigation, since the present suit was instituted before the Act came into force but was pending when the Act commenced.
However, the Court expressed strong doubt that section 16(1) should be construed to apply to suits already pending. The Court relied on authorities (Moon v. Durden; Beadling v. Goll; Doolubdas Pettamberdass v. Ramloll Thackoorsey-dass) where similar statutory provisions were held not to affect pending suits, absent clear words showing a retrospective intention.
The Court distinguished procedural provisions from those affecting substantive rights: it held that section 16(1) goes beyond mere procedure because it would, if applied retrospectively, extinguish landlords' substantive right to sue in the High Court for a final and conclusive decree and replace it with only a limited summary remedy in the Small Cause Court.
The Court noted the practical and procedural difficulties that would follow if the section were held to apply to pending suits: no mechanism for transfer of pending High Court suits to the Small Cause Court; potential waste of costs; possible problems with limitation if plaintiffs had to institute fresh proceedings in the Small Cause Court; and the absence of legislative provision to deal with such transitions.
On these grounds the Court expressed the view that section 16(1) should not be taken to apply to the pending ejectment suit and that even on the construction point the Small Cause Court lacked competence to try a conclusive title suit of the kind before the High Court.

Holding and Implications

Holding: The Court found no ground to interfere with the judgment and decree of the trial Judge and therefore DISMISSED THE APPEAL WITH COSTS. The decree of Banerjee, J. granting the Plaintiff final possession of the three rooms was upheld.

Implications:

The direct effect is that the Plaintiff's decree for recovery of possession is sustained and the Plaintiff is entitled to the possession awarded by Banerjee, J.
The Court held that section 16(1) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 did not bar the High Court from trying this particular suit because (a) the Small Cause Court was not competent to try a suit seeking a final and conclusive decree for recovery of immovable property, and (b) the Court doubted that section 16(1) could be read to apply retrospectively to suits pending when the Act came into force.
The opinion notes practical consequences if a contrary view were taken (e.g., no provision for transfer, wasted costs, possible limitation issues); the Court's ruling avoids those consequences in this case.
The opinion does not purport to create a new broad precedent beyond its statutory construction and application to the facts before it; it affirms the trial court's decree and the view that the Small Cause Court's summary procedure is distinct from a High Court title suit. (Sinha, J. concurred.)

Concurrence: Justice Sinha expressly agreed with the reasoning and result.

Show all summary ...

Harries, C.J:— This is an appeal from a judgment and decree of Banerjee, J., decreeing the Plaintiff's suit for ejectment.

2. The Plaintiff was the owner of certain premises known as No. 11.A, Ramesh Dutt Street situate within the Ordinary Original Civil Jurisdiction of this Court. The Defendant was a tenant of the Plaintiff of three rooms on the first floor. The tenancy was a monthly one at a rental of Rs. 21 per month.

3. The Plaintiff alleged that she required these rooms for her own occupation and she served a notice to quit on the tenant to expire at the end of the month of August, 1948. The Defendant refused to give up possession and it became necessary for the Plaintiff to file an ejectment suit. She could not, however, do so owing to the Rent Ordinance which was then in force without obtaining the permission of the Rent Controller. The Plaintiff applied to the Rent Controller for permission to bring a suit stating that she required these premises for her own occupation and further that they were in a ruinous state or in a state of very bad repair and required thorough repairing or rebuilding. The Rent Controller refused permission to the Plaintiff to bring this suit and an appeal was preferred to the Chief Judge of the Court of Small Causes. He set aside the order of the Rent Controller and gave the Plaintiff permission to file a suit. It appears that the Defendant applied to the Chief Judge to review his order but that application failed and was dismissed.

4. On September 1, 1948, the Plaintiff filed this suit. In the plaint she alleged that the premises were required bona fide by her for the purposes of building or rebuilding and for her own occupation. The Defendant in his written statement denied these allegations and his case was that the premises were in good repair and did not require either rebuilding or extensive repairing. He suggested that the suit was brought to evict him because he had refused to pay an increased rent demanded by the Plaintiff.

5. The matter eventually came to trial and two issues were raised:

(1) Are the premises bona fide required by the Plaintiff for the purposes of building and rebuilding and/or for her own occupation ?

(2) Has this Court jurisdiction to try this suit?

6. The learned Judge who tried the suit found in favour of the Plaintiff on both these issues. He held that the Court had jurisdiction to hear the suit, and further that the premises were in a ruinous and dilapidated state and required rebuilding. Further, he held that the Plaintiff bona fide required these premises for her own occupation. Accordingly he made a decree giving the Plaintiff possession of the three rooms in question.

7. The point of jurisdiction arose by reason of sec. 16 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, which came into force on December 1, 1948, that is, three months after this suit had been instituted. I shall consider this question of jurisdiction at a later stage.

8. Learned Counsel for the Appellant has not seriously challenged the findings of the learned Judge upon the first issue. There appears to me to have been ample evidence upon which the learned Judge could find-that these premises were in a very dilapidated condition and required either rebuilding or extensive repairing. He also accepted the evidence of the Plaintiff, corroborated as it was by other circumstances, that she required these rooms for her own occupation. But for the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, the Plaintiff on establishing these facts would be entitled to a decree.

9. On behalf of the Defendant, however, it was urged in the trial Court that sec. 16 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, ousted the jurisdiction of this Court and that after December 1, 1948, this Court had no longer jurisdiction to entertain and try this suit.

10. By a notification this Act came into force on the 1st December, 1948.

11. Sec. 16, sub-sec. (1) of the Act is in these terms:

“Notwithstanding anything contained in any other law for the time being in force. no stilt or proceeding by a landlord against a tenant for the recovery of rent or possession of any premises which the Court of Small Causes of Calcutta is competent to try shall be instituted in or tried by, any Court other than the said Court of Small Causes of Calcutta.”

12. The argument of the Defendant-Appellant is that the Court of Small Causes was competent to try this suit for possession, and that being so this Court could not hear the suit by reason of the provisions of sec. 16, sub-sec. (1) to which I have made reference.

13. I shall assume in the first place that the section applies to pending litigation, because, as I have said, this suit was pending when the Act came into force. The argument for the Appellant is that as the Small Cause Court could under secs. 41 to 43 of the Presidency Small Cause Court Act make an order for possession in respect of these premises it could entertain the present suit. That being so, this Court could not proceed to try it.

14. It appears to me that the sub-section cannot possibly deprive this Court of its jurisdiction to hear this suit. It must be remembered that the suit was a suit for the recovery of possession. It was a suit for obtaining a decree which, if obtained, would, subject to appeal, be conclusive and binding for ever-more between the parties. It was a suit in which the title of the Plaintiff could be decided and that being so it was clearly in my view a suit which the Small Cause Court could never try.

15. The jurisdiction of the Small Cause Court with respect to proceedings for the recovery of possession is contained in secs. 41 to 43 of the Presidency Small Cause Courts Act. Those sections contemplate a summary proceeding in which the applicant can, if the Small Cause Court is satisfied that he is entitled to possession, obtain an order addressed to bailiff of the Court directing him to give possession of the property to the applicant on a particular day.

16. It is to be observed that the order which is obtained in the Small Cause Court is in no way conclusive and may be challenged under the provisions of secs. 46, 47 or 49 of the Act. For example, if a landlord brings proceedings against a tenant, the tenant may apply to the Court of Small Causes under sec. 47 to stay the proceedings pending an action which the tenant can bring in the High Court for trespass. It must be remembered that an applicant who makes an application for possession under secs. 41 to 43 of the Presidency Small Cause Courts Act shall be deemed to commit an act of trespass against the tenant though he does not oust the tenant if he has no ground for making the application. In other words, an application for possession may be stayed for many years and that can never be the fate of an action in this Court for recovery of possession. Again, if an order for possession is made by the Small Cause Court, it can be challenged by the tenant or any other persons aggrieved under sec. 46 of the Act. If the tenant can establish in a suit that the landlord had no right to possession as against him then the order of the Small Cause Court is completely wiped out. Again, under sec. 49 an order of the Small Cause Court is no bar to a title suit as the recovery of possession of any property under secs. 41 to 43 of the Act is no bar to the institution of a suit in this Court for trying the title thereto.

17. It will be seen. therefore, that the order which is obtained in the Small Cause Court is very different from a decree for possession obtained in this Court, and the Small Cause Court cannot make a decree for possession which is final and conclusive between the parties subject only to appeal. The suit before Banerjee, J., was a suit for recovery of possession and prayed for a final and conclusive decree for possession which would for ever bind the parties. No proceeding with such a prayer can ever be brought before the Small Cause Court. All that the Small Cause Court can be asked to do is to make a summary order for possession, in other words, to make an order directing the bailiff to grant the applicant physical possession of the premises subject always to the rights of the tenant or any other person aggrieved to challenge the order by appropriate proceedings.

18. For these reasons it appears clear to me that the Small Cause Court is not competent to try an ejectment suit or a suit for the recovery of possession. In fact, sec. 19 of the Small Cause Courts Act makes it clear that that is so. Sec. 19 (d) of the Act provides that the Small Cause Court shall have no jurisdiction in suits for the recovery of immovable property and the suit before Banerjee, J., was a suit for the recovery of immovable property. All that the Small Cause Court has jurisdiction to entertain is an application for physical possession and the order which it makes is in no way binding or conclusive. That being so, it appears to me that sec. 16 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, was no bar to this suit as that section only bars a suit which the Small Cause Court was competent to try. As that Court could never try the present suit the jurisdiction of this Court was not ousted and the view of the learned single Judge cannot possibly be assailed.

19. As I have stated, I have assumed that sec, 16 (1) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, would apply to pending cases, that is, suits which were instituted before the Act came into force, but which had not been tried before the Act came into force. Counsel for the Appellant has urged that the Act clearly applies to pending suits because it directs that no suit which the Court of Small Causes is competent to try shall be instituted in or tried by any Court other than the said Court of Small Causes. It is suggested that this Act prevents the institution of such a suit after the Act came into force or the trial of such a suit after the Act came into force and, therefore, the Act would apply to a suit instituted before the Act came into force but not tried until afterwards.

20. I am far from satisfied that sec. 16 (1) of the Act applies to suits which were pending in this Court when the Act came into force. It is unnecessary to consider the point at any length, but it appears to me that the section is very similar to a section which was construed by the Court of Exchequer in Moon v. Durden(1). In that case an Act which came into force on August 8, 1845, enacted that all contracts and agreements by way of gaming or wagering shall be null and void; and that no suit shall be brought or maintained in any Court of law or equity for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event upon which any wager shall have been made. The Court of Exchequer (Platt, B., dissenting) held that the statute had not a retrospective operation, so as to defeat an action for a wager, commenced before the statute was passed. In that case the suit was instituted before the Act come into force but had not been tried when the Act was passed. As the suit had not been tried it was being maintained after the passing of the Act. Nevertheless the Court of Exchequer held that the Act did not apply to a pending suit. This case has been followed by a number of cases in England the most recent being Beadling v. Goll(2). That case dealt with the Gaming Act of 1922. By sec. 1 of that Act it was provided that no action for the recovery of money under sec. 2 of the Gaming Act, 1835, shall be entertained in any Court. It was held by the Court of Appeal that that Act did not apply to pending cases, though suits instituted before the Act was passed could in a sense be said to be entertained after the Act was passed.

21. A very similar view was taken by their Lordships of the Privy Council in Doolubdas Pettamberdass v. Ramloll Thackoorsey-dass(3). In that case after certain contracts were entered into and an action commenced in the Supreme Court at Calcutta, wagering contracts were declared invalid by an Act of the Indian Legislature, No. 21 of 1848, which enacted that all agreements whether made in speaking, writing, or otherwise, by way of gaming or wagering, shall be null and void, and no suit shall be allowed in any Court of Law or Equity for recovering any sum of money or valuable thing alleged to be won on any wager, or entrusted to any person to abide the event of any game, or on which any wager is made. Their Lordships held that this legislative enactment did not affect existing contracts, or actions already commenced upon such contracts, there being no words in the Act sufficient to show the intention of Legislature to affect existing rights.

22. It will be seen that in this case the statute stated that certain actions should not be allowed. The suit had been instituted before the Act came into force but had not been tried and it was, therefore, argued that in trying it the Court would be allowing such a suit. Nevertheless their Lordships of the Privy Council held that that statute did not apply to pending cases.

23. It may be contended that this statute could be given retrospective effect because it really deals with mere matters of procedure and there is no objection in most cases to a procedural enactment being given retrospective effect. However it appears to me that sec. 16 (/) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, deals with far more than procedure. It seeks to bar a right of suit in the High Court to all landlords in the Presidency and if the Appellant's construction was right all that landlords in this Presidency would have in future would be a right to a summary order which was not conclusive between the parties. They would have lost their right to sue in this Court for a final and conclusive decree. It seems to me that this section affects rights and is far more than a procedural one. That being so, it appears at least extremely doubtful whether this section can possibly apply to pending proceedings. My own view is that it cannot.

24. Further, to hold that the section applied to pending proceedings would create serious difficulties. If pending suits for possession in this Court could not be heard then what was to happen to them? There is no provision in the Act for the transfer of these suits to the Court of Small Causes and further if they could be transferred they could not be heard by reason of the very limited jurisdiction of that Court. All that the Plaintiffs in these pending Suits could do would be to file fresh applications in the Court of Small Causes and the costs in this Court would of course be thrown away. Difficulties might arise with regard to limitation in these fresh applications.

25. They might be filed out of time, though it might be argued that the Plaintiff would be entitled to exclude the time taken in litigating in the High Court under sec. 14 of the Limitation Act, though strictly it could not be said that the time taken in litigating in this Court was time taken in litigating in a Court without jurisdiction because this Court certainly had jurisdiction until this Act came into force. It will, therefore, be seen that if this Act was held to apply to pending cases serious difficulties would arise. However, as the Act cannot apply to ejectment suits these difficulties cannot arise.

26. In the result, therefore, I can see no ground for interfering with the judgment and decree of the trial Court and I would accordingly dismiss this appeal with costs.

Sinha, J.:— I agree.