TMI Blog1953 (1) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Chapter VII of the Presidency Small Cause Courts Act, 1882, for the eviction of the respondents from the demised premises on the allegation that the tenancy had determined ipso fact,) for nonpayment of rent for three consecutive months in terms of section 12 (3) of the West Bengal Premises Rent Control Act, 1948. The respondents on the 6th July, 1949, deposited into Court ₹ 233-7-0 and on the 8th July, 1949, entered appearance and filed a written statement denying that they were in arrears with their rent or that their tenancy , had been ipso facto determined. The said proceedings came up for hearing on the 27th February, 1950, and the respondents not having appeared it was heard ex parte and an order was made directing the delivery of possession of the premises to the appellant on the 3rd May, 1950. In the meantime on the 31st March, 1960, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (Act XVII of 1950) came into force. On the 29th May, 1950, the respondents filed an application in the trial Court under section 18 of the said Act for vacating the order for possession. On the 5th June, 1950, the trial Court made an order upon terms which, as set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to a Bailiff of the Court directing (1). him to give possession of the property to the applicant on such date as the Court thinks fib to name in such order. Although under the rules framed under the Act this application under section. 41 is initiated by a plaint there is no dispute that the proceeding is not a suit and the order for delivery of possession does not strictly speaking amount to a decree for recovery of possession [See Rai Meherbai Sorabji Master v. Pherozshaw Sorabji Gazdar (1927) I.L.R. 51 BOM. 385.]. Indeed, section 1.9 of the Act peremptorily provides, inter alia, that the Small Causes Court shall have no jurisdiction in suits for recovery of immovable property. The only question for consideration, therefore, is whether section 18(1) of Act XVII of 1950 applies to an -order for possession made under section 43 of the Presidency Small Cause Courts Act, 1882. Section 18(1) and the marginal note to that section run as follows: 18. (1). Where any decree for recovery of posses- Power of court to sion of any premises has been made |rescind or vary on the ground of default in decrees and orders payment of arrears of rent under or to give relief in the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y premises shall be made so long as the tenant pays to the full extent the rent allowable by this Act and performs the conditions of the tenancy. The marginal note to that section simply says: No order for ejectment ordinarily to be made if rent paid at allowable rate. 'In the marginal note the words or decree do not find a place at all, a fact which clearly shows that the marginal note was' not prepared carefully and that it was not a sure guide in the matter of the interpretation of the body of the section. We have, therefore, to read the words used in the body of section 18(1) of the 195O Act and if we find the meaning clear and unambiguous' the marginal note should not be permitted to create an ambiguity in the section. Section 18 (1), as it stood on the 4th July, 1950, when the order for possession passed on the 27th February, 1950, was vacated, gave relief to a tenant against whom any decree for recovery of possession of any premises had been made on the ground of default in payment of arrears of rent under the provisions of the 1948 Act, provided that the possession of the premises had not been recovered from him. The relief given by this section is clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court has to ascertain the meaning of the word decree as used in section 18(1) of the last mentioned Act. It has been already stated that the language of section 18 (1) attracts the relevant provisions of the 1948 Act and, therefore, the word decree occurring in section 18(1) must necessarily be construed in the light of the 1948 Act and it is clear that so construed it cannot cover order for possession made under Chapter VII of the Presidency Small Cause Courts Act. Apart from' that consideration, the question still remains: What does the word decree in section 18 (1) mean? That word has not been defined either in the 1948 Act or in Act XVII of 1950 or in the Bengal General Clauses Act. That word, however, has been defined in the Code of Civil Procedure, 1908, and, as there defined, it means the formal expression of an adjudication which determines the rights of the parties with regard to the matter in controversy in the suit which last word prima facie means a civil proceeding initiated by a plaint (section 26 and Order IV, rule 1, Civil Procedure Code). This is the ordinary accepted meaning of the word decree and if that meaning is attributed to the word decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Procedure, 1908. The proviso to sub-section (1), however, saves any suit for decree for such recovery of possession against certain tenants or in certain circumstances. Therefore, it is clear that the proviso to sub-section (1) of section 12 does not save proceedings under Chapter VII of the Presidency Small Cause Courts Act. The explanation to that sub-section stating that the word suit in the proviso does not include a proceeding under Chapter VII of the Presidency Small Cause Courts Act appears to have been inserted out of abundant caution to put the position beyond any doubt. Section 16 of Act XVII of 1950 provides that notwithstanding anything contained in any other law a suit by a landlord against a tenant for recovery of possession of any premises to which the Act applies shall lie to the Courts as set out in Schedule B and that no other Court shall be competent to entertain or try such suit. According to Schedule B, where the premises are situate on land wholly within the ordinary original civil jurisdiction of the Calcutta High Court and when the rent does not -exceed ₹ 500 per month, the Chief Judge of the Calcutta Court of Small Causes shall entertain and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to decree for possession made on the specified ground and not with respect to a decree for possession made on any other ground. In the next place relief is given only when the possession of the premises in respect of which a decree for possession had been made had not been made over by the tenant. Thus tenants against whom a decree for possession had been made on grounds other than the ground specified. in the subs section and even tenants against whom a decree for possession had been made on the specified ground but who had, voluntarily or otherwise, delivered possession of the premises get no relief under section 18 (1). An order for possession is made by the Presidency Small Cause Court under Section 43 on a summary application under section 41 and the order directs the Bailiff of the Court to deliver possession to the applicant. This order for the recovery of possession which under section 37 of the Presidency Small Cause Courts Act is final and conclusive and from which there is no appeal or a new trial under section 38 of that Act does not ordinarily take much time to be obtained or to be carried out and certainly much less than what is taken to obtain a decree for possessio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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