1. This is an application for setting aside of the decree in the said suit, for annulment of the pending execution proceedings and for remitting the proceedings to the Controller for decision.

2. The applicants Shaik Abdul Ghani and Sheik Abdul Rahim became tenants in respect of a vacant plot of land in premises No. 26|1A, Pollock Street, in or about September, 1948, at a monthly rent of Rs. 500. It is admitted now that since they became tenants they have erected structures on the said land for residential, manufacturing and or business purposes. Mr. David Jacob Cohen, who is the landlord of this premises, caused a notice to quit the premises to be served upon the tenants on or about January 13, 1950. The suit in which this application is made was instituted on or about August 26, 1950, claiming possession and mesne profits. On November 22, 1951, the suit was tried by me and I passed a decree for possession, mesne profits and costs. On September 6, 1952, an order for delivery of possession was passed in execution proceedings. Possession, however, was not delivered to the landlord and the tenants continued to be in occupation of the plot of land.

3. On October 21, 1952, the Calcutta Thika Tenancy (Amendment) Ordinance, 1952, came into force. On December 17, 1952, the notice of motion on the present application was taken out. The notice states that on December 22, 1952, at 10-30 o'clock or so soon thereafter as counsel may be heard an application will be moved on behalf of the petitioner. The matter was listed on December 22, 1952. On that date I made an order the minutes of which read as follows:—

“Sri R.C Deb appears.

Ct: A|O, to be filed by 9.1.53, A|R by 16.1.53 and motion adjourned till 19.1.53”

4. On January 19, 1953, the motion again appeared in the list and I again passed an order the minutes of which read as follows:—

“Sri S. Sinha (Adv.), for Sri Subimal Roy prays for an adjournment till Tuesday week, by consent.

Ct: Yes, adjourned peremptorily.”

5. Pursuant to this order the matter came in the list again yesterday, namely, January 27, 1953, and the hearing started yesterday.

6. This application is made under section 5 of the Calcutta Thika Tenancy (Amendment) Ordinance No. XV of 1952.

7. Section 5 of the said Ordinance reads as follows:

“5. (1) Save as provided in subsection (2), the provisions of the said Act as amended by this Ordinance, shall apply to all cases pending before a Court or Controller on the date of the commencement of this Ordinance.

(2) If, at any time between the commencement of the said Act and of this Ordinance, a decree or order has been passed for the recovery of possession of any land and for other relief, if any, and delivery of possession has not been given, then on application made in this behalf by the person against whom the decree or order was passed, within three months of the commencement of this Ordinance, the Court which or the Controller who passed the decree or the order shall decide (after hearing the parties and after taking fresh evidence, if necessary) whether the person is a thika tenant within the meaning of the said Act as amended by this Ordinance. If the Court or Controller holds that the person is not such a thika tenant, it or he shall dismiss the application. If the Court or Controller holds that the person is such a thika tenant, it or he shall set aside the decree or the order and annul the execution proceedings, if any, and—

(i) where the proceedings are before a Court—it shall remit the case to the Controller to be dealt with by him according to law;

(ii) where the proceedings are before the Controller—, he shall reopen the case and pass a new order.

(3) A Court or Controller may, pending the disposal of an application under sub-section (2), order the stay of the proceedings, if any, in execution of the decree or the order.

(4) The provisions of this section shall have effect notwithstanding anything to the contrary in any other law or elsewhere in the said Act as amended by this Ordinance.

Explanation.— In this section,—

(i) the expression ‘the person against whom the decree or the order was made’ includes the successor-in-interest of such person;

(ii) the expression ‘Court’ includes a Court exercising appellate or revisional jurisdiction and the expression ‘Controller’ means the Controller referred to in sub-section (2) of section 2 of the Clacutta Thika Tenancy Act, 1949, for the time being in force or the person deciding an appeal under section 27 of the Calcutta Thika Tenancy Act, 1949, for the time being in force as the case may be.”

8. Section 2 of the Ordinance reads as follows:—

“In section 2 of the Calcutta Thika Tenancy Act, 1949 (hereinafter referred to as the said Act), for clause (5) the following clause shall be substituted, namely:—

(5) ‘thika tenant’ means any person who holds, whether under a written lease or otherwise, land under another person, and is or but for a special contract would be, liable to pay rent, at a monthly or at any other periodical rate, for that land to another person and has erected any structure on such land for a residential, manufacturing or business purpose and includes the successors-in-interest of such person, but does not include a person—

(a) who holds such land under that another person in perpetuity or

(b) who holds such land under that another person under a registered lease, in which the duration oldie lease is expressly stated to be for a period of not less than twelve years; or

(c) who holds such land under that another person and uses or occupies such land as a khattal,”

9. It is admitted by Mr. Deb, counsel for the landlord, that before the time fixed by the notice to quit dated January 13, 1950, expired the petitioners were liable to pay rent at a monthly rate for the land in question to his client. He also admits that the petitioners have erected structures on the land for a residential, manufacturing and or business purposes. It is also admitted that this decree was passed between the commencement of the Calcutta Thika Tenancy Act, 1949, and the commencement of the Thika Tenancy (Amendment) Ordinance, 1952. It is also admitted that the decree has been passed for recovery of possession of the land and for other reliefs and delivery of possession has not been given. Notwithstanding these admissions, Mr. Deb contends that the applicants cannot get relief under section 5(2) of the Ordinance, because (a) the petitioners are not thika tenants within the meaning of the Calcutta Thika Tenancy Act as amended by the Calcutta Thika Tenancy (Amendment) Ordinance, and (b) this application was not made within 3 months of the commencement of this Ordinance, that is to say, was not made within January 21, 1953.

10. In my view, the petitioners against whom the decree for possession was passed are thika tenants within the meaning of the Act as amended by the Ordinance.

11. Sub-section (2) of section 5 of the Ordinance is meaningless if the petitioners are to be tenants in the strict sense of that word on the date of the application. The protection by that sub-section is given to a person against whom a decree for possession has been passed. Such decree cannot be passed unless the tenancy has been terminated. If the tenancy was not terminated the petitioners needed no protection of the Act or the Ordinance. They could then rest their title upon their tenancy rights. This sub-section gives them protection because their tenancy was terminated and because a decree for possession has been passed against them.

12. It is true that sec. 2 of the Ordinance in the Act defines ‘thika tenant’ as a person who holds land and is or would be liable to pay rent. It is clear from the Act itself that in many sections of the Act the word ‘tenant’ is used so as to include an ex-tenant. It is well-known that in many Rent Control and Tenancy Acts giving special protection to tenants and passed since the first World War the words ‘tenant’ and ‘rent’ are often not used in any narrow technical sense. The word ‘tenant’ is often used to include an ex-tenant and the word ‘rent’ is often used to denote the amount which is payable periodically as if the tenancy is still continuing. Instances of such user may be found in the Calcutta Rent Act, 1920, Karnani Industrial Bank v. Satya Niranjan Shaw (1) (L.R 55 I.A 344 : 32 C.W.N 1093), Bithaldas Chandak v. Lal Behari Dutt (2) (25 C.W.N 967), Increase of Rent and Mortgage Restriction Act, Remon v. City of London Real Property Co. (3) [(1921) 1 K.B 49], Bengal Agricultural Tenancy Temporary Provisions Act, Sukumari Devi v. Rajdhari Pandey (4) (46 C.W.N 174), Calcuta Rent Ordinance, 1946, Ke-shab Mitter v. P. Ghosh (5) (49 C.W.N 728), and West Bengal Premises Rent Control Temporary Provisions Act, 1950, Nanda Rani v. Satyanarain (6) (54 C.W.N 735 at 740), read with Nanddrani v. Satyanarain (7) (54 C.W.N 589 at 593-594). The phrase ‘a thika tenant within the meaning of the said Act as amended by this Ordinance’ means and includes a person who was a thika tenant against whom the decree for possession has been passed and who continues to be in possession. This meaning is necessary if the least working effect is to be given to the Ordinance. If the contention of Mr. Deb is accepted, the whole of section 5(2) of the Ordinance is rendered totally nugatory.

13. In my view, the petitioners are thika tenants within the meaning of the said Act as amended by the Ordinance and are entitled to make this application under section 5(2) of the Ordinance.

14. I am also of the opinion that this application has been made within three months of the commencement of the Ordinance.

15. Counsel on both sides have cited decisions bearing on the question when an application is said to be made for the purposes of the Limitation Act.

16. The taking out of a summons or a notice of motion under the practice of this Court is not the making of an application. It is an act of the party and not an act of the Court. The application is however made, when the Court takes cognizance of the application, and acts upon it.

17. The rule that the taking out of a summons is not the making of the application was first enunciated in the case of Khetter Mohun Singh v. Kassy Nath Sett (8) (I.L.R 20 Cal. 899). In that case, an application was made for refund of an amount which was paid to the Sheriff of: Calcutta on account of costs on the 27th November, 1889. The applicant had three years' time to make the application under Art. 178 of the Indian Limitation Act (Act XV of 1877). This period expired on the 27th November, 1892, which was a Sunday. The applicant, there fore, had time to make the application until the 28th November, 1892. He took out the summons on the 28th November, 1892, and the returnable date was the 5th December, 1892. On that date, Mr. Justice Hill adjourned the hearing of the summons into Court fixing the 16th December as the date of the hearing. The application was heard on the 16th December and was dismissed on the ground that if was barred by the Law of Limitation. Petheram, Chief Justice, at p. 902 observed thus:

“The only question we have to consider is whether the application was made within the meaning of the Limitation Act on the day on which the summons was signed by the Registrar, and oh which it bears date or on the day when the matter came before the Judge, i.e, on the 5th December, a day which was more than three years from the day when the right to apply accrued. We think that the application was not made until the 5th of December and that the Judge was right in rejecting the application as barred by limitation. The summons to attend the hearing of the application is the act of the applicant only and is merely a notice, signed by the Registrar at his request, that the application will be made on the day mentioned, i.e, December 5th, and is not the act of the Court receiving or taking cognizance of the application as would perhaps be the case if it were a rule nisi to show cause issued by the Court after hearing the statement of the applicant. * * * Under these circumstances we think that no application urns made to the Court until the application of December 5th which was made in pursuance of the notice given by the summons, and as that was more than three years from the time when the right to make it accrued, the learned Judge was right in rejecting the application,”

18. The Court in that case was, therefore, clearly of the view that the application was made on the 5th December, 1892, when Mr. Justice Hill adjourned the hearing of the summons into Court.

19. This case was followed by Mr. Justice Sale in Hinga Bibee v. Munna Bibee (9) (I.L.R 31 Cal. 150). There the suit had been dismissed on the 10th August, 1903. The plaintiff took out a notice of motion on the 29th August, 1903. The returnable date of the summons was the 3rd September. The application was not made then nor was the matter mentioned until a date after the day when the Court reopened after the long vacation. The Court reopened on the 18th November and on the 19th November the application was mentioned and was adjourned and it was finally made on the 30th November. The application there was governed by Art. 163 of the Limitation Act (Act XV of 1877), and the applicant had thirty days to make the application. This period expired on the 9th September. Mr. Justice Sale held that the application was barred by limitation and observed thus:—

“Notice of the present application was given on the 29th August, 1903, and the date on which the application was intended to be brought oh as mentioned in the notice was the 3rd of September. The application was not made then, nor was it mentioned at any time until a day after the day on which the Court reopened after the long vacation, thai is, on the 19th November, 1903. * * * The application is barred under Art. 163 of the Limitation Act because it was not made within thirty days from the order of dismissal. The notice of motion which was given on the 29th August, 1903, does not prevent the Law of Limitation from applying. That is laid down in the case of Khetter Mohun Sing v. Kassy Nath Sett (8) (I.L.R 20 Cal. 899) and inasmuch as thirty days expired within the period of the vacation, the only course open to the plaintiff to avoid limitation was to mention the matter to the Court on its reopening day, which, as I have said, was not done.”

20. Mr. Justice Sale, therefore, seems to have clearly been of the opinion that mention of the application to the Court prevents time from running, that such mention was made on November 19, 1903, when the application was adjourned and that in the case before him even such mentioning took place after the period of limitation had expired.

21. These cases were followed in Sreechand Daga v. Sohanlal Daga (10) (47 C.W.N 450). There the suit had been dismissed on the 19th May, 1942. On the 17th June, the plaintiff took out a notice of motion for restoration of the suit. The returnable date of the notice was the 22nd June. The applicant had thirty days to make the application and that period expired on the 19th June. On the returnable date of the notice, namely, on the 22nd June, the Court adjourned the application until the 30th June. On the latter date, the application was heard and was dismissed on the ground of limitation by Gentle, J. His order was confirmed in appeal and Derbyshire, C.J, observed thus:—

“The notice of motion is simply a formal warning that an application will be made. The application itself is to come later. The word ‘application’ in its ordinary meaning is a ‘request’. According to Wharton's Law Lexicon ‘application’ means ‘a request, a motion to Court or Judge, the disposal of a thing’. There is a clear difference between the warning of an application to be made later and the application itself.”

22. These cases, therefore, decide that the mere taking out of a summons or of a notice of motion is not the making of an application. There are, however, clear expressions of opinion in both Khetter Mohun Sing v. Kassy Nath Sett (8) (20 Cal. 899), and Hinga Bibee v. Munna Bibee (9) (31 Cal. 150), that the application is made when the Court takes cognizance of the application and upon such cognizance adjourns the application. The adjournment of the application is a judicial act. When the Court grants the adjournment it takes cognizance of the application and acts upon it. Under rule 15 of Chapter XX of our Rules “no adjournment of a motion or rule in the peremptory list of motions shall be granted, except upon an affidavit showing sufficient grounds for such adjournment, provided that the Court may, on the first day of hearing of a motion or rule, grant an adjournment (for the convenience of Advocates), where all parties consent thereto and no grounds further than the statement of Advocates shall in such cases be required”. Under this rule, on the first day of the hearing of this motion on the 22nd December, 1952, this Court granted an adjournment.

23. On that date, the Court also did one other judicial act. It gave the respondent further time to file the affidavit-in-opposition and also fixed the time by which the petitioner was to file the affidavit in reply. Under rule 6 of Chapter XX of our Rules “affidavits in answer or reply are to be filed in the Registrar's office not later than 4 p.m, on the day preceding the day named for showing cause, or, where such day is a Monday, not later than 1 p.m, on the previous Saturday”. Under rule 11 of Chapter XX any affidavit in answer or reply filed later than the time prescribed by rule 6 could not be used at the hearing or allowed on taxation except by leave of Court. Leave to file further affidavits which were not filed in accordance with Rule 6 was given by the Court on the 22nd December, 1952.

24. The Court by another judicial order, dated the 19th January, 1953, adjourned the application peremptorily till the 27th January, 1953.

25. On both December 22, 1952, and January 19, 1953, the Court took cognizance of the application and passed orders which it could pass only on the basis that the application was made and was pending. The Court officer noted the application and the order passed upon it in the minutes of the Court.

26. Mr. Rathin Deb relied upon the decision of my learned brother Mr. Justice P.B Mukharji in Debendra Nath Dutt v. Satyabala Dassi (11) (54 C.W.N 110). There the suit had been dismissed on the 5th September, 1949. The plaintiff alleged that he came to know of the dismissal on the 11th August, 1949. He took out a notice of motion on the 19th August, 1949, for setting aside the order of dismissal and this notice was by special leave of the Court and made returnable on the 22nd August, 1949. The Court gave direction for the filing of the affidavit-in-opposition on the 30th August and affidavit-in-reply on the 5th September and adjourned the application until the 6th September. On the 6th September, the application was adjourned till the 13th September and on the 13th September it was again adjourned till the 16th September. On the latter date the application was heard and was dismissed. Mr. Justice P.B Mukharji observed thus:—

“The application was not ‘made to the Court’ within the language of the notice of motion until the 16th September, 1949. The applicant could have this application ‘noted as made’ either on the 19th August, 1949, when the notice of motion was taken out or on the 22nd August, 1949, when the notice of motion was made returnable and when being on the list the application was adjourned at the instance of the parties for filing their affidavits or even on the 6th September, 1949, when it appeared on the list for disposal. If the application was made noted on any one of these days it might have been argued that at any rate limitation ceased to run as from the day of such noting. After the decision of Sreechand Daga v. Sohanlal Daga (10) (47 C.W.N 450), it can no longer be contended that taking out of a notice of motion per se, operates to save limitation. It is now settled law that the application has to be moved or made to the Court. That not having been done, the decision of the Court of Appeal in Daga's case is clear and I must hold that even if the limitation operated from the date of the knowledge of the dismissal, even then this application is barred by time. I am, however, of the opinion that it is incontestable that the time from which limitation runs under Art. 163 of the Limitation Act is not from the date of the knowledge but from the date of the dismissal.”

27. Mr. Justice P.B Mukharji clearly and distinctly held that the starting point of limitation for the application before him was the date of the dismissal of the suit, namely, the 5th May, 1949, and as such he was clearly of the view that the application was barred on the 4th June, 1949. It was clear, therefore, that the application before him was barred by limitation on the date on which the notice of motion had been taken out and also on the other several dates when the application was adjourned from time to time. The expression of opinion in that case that the application was not made until the date of its actual hearing and final disposal was, therefore, strictly obiter. The only question before me is whether the application, was made within three months from October 21, 1952, the date of the commencement of the Ordinance as required by section 5 of the Ordinance. On the facts before me I am satisfied that the application which I am dealing with today was made on December 22, 1952, and was again made on January 19, 1952, and was finally made and heard yesterday and today. The application was therefore made within three months from October 21, 1952.

28. On this finding and having regard to the admissions of Mr. Deb it must follow that the petitioners are entitled to relief under sec. 5 of the Ordinance.

29. I, therefore pass the following order:

I set aside the decree passed in the suit and dated November 22, 1951.

I annul the pending execution proceedings.

I remit the case to the Controller to be dealt with by him according to law.

30. Mr. Rathin Deb, on behalf of the respondent, does not contend that the order which I have passed is not the correct order to be passed on the application if my conclusions on the points urged by him are correct.

31. Mr. Deb, however, contends that I have the power to give direction with regard to the costs of this application and also of the costs of the suit and execution proceedings.

32. It is contended by Mr. Roy that the Court has no power to give such direction. Counsel on both sides want further time to deal with this point. I will, therefore, allow this point to be argued tomorrow. The matter will appear in the list for further direction tomorrow.

Solicitors: A Das Gupta for the Petitioners; P.C De for the Respondent,

A.K.D.G