TMI Blog1957 (9) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... ct Court and a second appeal before the High Court at Calcutta; but both those appeals failed and the decree for ejectment passed by the trial court was confirmed. Then followed several proceedings between the parties and the course of litigation between them turned out to be protracted and tortuous. Ultimately on May 22, 1953, the respondent filed an execution case before the First Additional Court, Sealdah (Title Execution Case No. 34 of 1953). By this application the respondent claimed that the possession of the property covered by the decree should be delivered to him. Thereupon the appellant filed a Miscellaneous Judicial Case under s. 47 of the Code of Civil Procedure in the court raising several objections to the decree holder s claim for execution (Miscellaneous Judicial Case No. 96 of 1953). This case was dismissed by the executing court on February 2, 1954. A miscellaneous appeal preferred by the appellant before the learned District Judge, 24-Parganas, as well as the second miscellaneous appeal preferred by him before the High Court at Calcutta were likewise dismissed. The appellant then applied for leave to prefer an appeal under the Letters Patent. This application was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Act defines a thika tenant. Section 3 lays down the grounds on which a thika tenant may be ejected. The effect of this section is that it is only where one or more of the six grounds recognized by s. 3 is proved against a thika tenant that a decree for ejectment against him can be passed. In other words, grounds other than those mentioned in s. 3 on which a landlord would have been entitled to eject his thika tenant under the provisions of the Transfer of Property Act became inapplicable to the case of the thika tenants by virtue of s. 3. Section 5, subs. (1) reads thus: S. 5. (1) Notwithstanding anything contained in any other law for the time being in force, a landlord wishing to eject a thika tenant on one or more of the grounds specified in section 3 shall apply in the prescribed manner to the Controller for an order in that behalf and, on receipt of such application, the Controller shall, after giving the thika tenant a notice to show cause within thirty days from the date of service of the notice why the application shall not be allowed and after making an inquiry in the prescribed manner either allow the application or reject it after recording the reasons for ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alcutta, West Bengal Ordinance No. XV of 1952 was promulgated on October 21, 1952. Accordingly, s. 2 of this Ordinance amended s. 2, sub-s. (5) of the Calcutta Thika Tenancy Act II of 1949. This is one important change introduced by this Ordinance. The other important change introduced by this Ordinance is to be found in s. 5 of the Ordinance. Section 5, sub-s. (1) lays down that all cases pending before a court or Controller on the date of the commencement of this Ordinance shall be governed by the provisions of Act II of 1949, as amended by this Ordinance. Sub-section (2) of s. 5 then deals with cases where decrees or orders have been passed for the recovery of possession at any time between the commencement of the said Act and this Ordinance. In the present appeal, we are dealing with a decree falling under s. 5, sub-s. (2) of this Ordinance. In respect of such decrees this sub-section lays down that the judgment-debtor could apply within three months of the commencement of the Ordinance to the court or the Controller as the case may be and invite his decision on the question of his status as thika tenant; according to the provisions of this subsection, the status of the judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that any proceedings commenced under sub-s. (2) of s. 5 of the amending Ordinance of 1952 shall, on the said Ordinance ceasing to operate be continued as if sub-ss. (2), (3) and (4) of that section and the explanations to that section were in force. It would thus appear that though the Ordinance ceased to be operative the remedy provided by s. 5, sub-s. (2) of the Ordinance to judgment-debtors continued to be available to them and the applications made by them to seek. the protection of the said provision bad to be dealt with as if the material provisions of the Ordinance were in operation. It is true that s. 9 of the amending Act has not been incorporated in the original Act II of 1949 but it is conceded that the omission to include this section in the original Act does not make any difference. Mr. N. C. Chatterjee, for the appellant, has contended that the object in enacting the relevant Thika Tenancy Acts and Ordinances is absolutely clear. It is a piece of welfare legislation and as such its operative provisions should receive a beneficient construction from the courts. If the scheme of the Act and the object underlying it is to afford full protection to the thika tenants, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the commencement of the Act, the landlord wanted to enforce his claim for ejectment, he had to apply for the said relief before the Controller under s. 5 in the prescribed manner. The application of s. 5, sub-s. (1) was, however, subject to the provisions of s. 28. As we have already pointed out, s. 28 dealt with decrees or orders already passed whereas s. 29 dealt with suits and proceedings pending at the commencement of the Act. The appellant s contention is that the effect of ss. 5, 28 and 29 was to submit the claims of landlords for ejectment of the thika tenants to a scrutiny in the light of the provisions of s. 3 and other relevant sections of the Act. Whether the claim had merged in a decree or was pending in a proceeding at the time when the Act came into force or it was made after the commencement of the Act, in every case the test laid down by s. 3 had to be applied; and the argument is that/ this position is not altered by the amendments made by Act VI of 1953. In our opinion, this argument cannot be accepted. Section 3 clearly refers to the claim for ejectment made by the landlord in a proceeding instituted by him. It is difficult to understand how s. 3 could be in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onounce a judgment in the present case. It is clear that since s. 28 along with s. 29 has been deleted from the Act by the subsequent amending Act VI of 1953, any reference to s. 28 in s. 5 (1) would have been entirely out of place.But the deletion of the material words does not enlarge the jurisdiction of the Controller to reopen disputes between the landlords and their thika tenants when in respect of such disputes decrees have already been passed by courts of competent jurisdiction in favour of landlords. All the relevant provisions of s. 5, sub-s. (1) are absolutely inapplicable to cases of such decrees and so we are unable to accept the argument that even where a decree has been passed in favour of the landlord a claim for the execution of the decree would have to be entertained and considered by the Controller under s. 5, sub-s. (1). Then it is urged that it would be unreasonable to hold that a certain class of thika tenants was precluded from obtaining the benefit of the Act merely because decrees for ejectment were passed before the Act came into force; and it is emphasised that the scheme of the original Act as evidenced by ss. 5, 28 and 29 clearly was to afford protect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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