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PETITIONER: KANAI LAL SUR

       Vs.

RESPONDENT: PARAMNIDHI SADHUKHAN

DATE OF JUDGMENT: 10/09/1957

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. BHAGWATI, NATWARLAL H. DAS, S.K.

CITATION:  1957 AIR  907            1958 SCR  360

ACT: Thika  tenant-Decree for ejectment-Execution  application-If lies  in  civil  Court-Welfaye   legislation-Interpretation- Calcutta Thika Tenancy Act, 1949 (W.B. 11 Of 1949), s. 5(1).

HEADNOTE: Respondent  obtained  a  decree for  ejectment  against  the appellant,  a  thika tenant, and filed  an  application  for execution  of the decree before the civil Court.   Appellant resisted  the application on the ground that in view  Of  s. 5(1)  Of  the Calcutta Thika Tenancy Act,  1949,  the  civil Court  had  no jurisdiction to  entertain  the  application. Section  5(1)  provides that a landlord wishing to  eject  a thika tenant on the grounds specified in s. 3 shall apply to the Controller in that behalf. Held that S. 5(1) did not apply to a case where the landlord had  already  obtained a decree for  ejectment  against  his thika   tenant   and  consequently  the  civil   Court   had jurisdiction to entertain the execution application. The  operative  provisions  of  welfare  legislation  should receive a beneficent construction from the Courts.  But  the words  used in a statute must be interpreted in their  plain grammatical  meaning  and  it is only when  such  words  are capable  of two constructions that the question of  adopting the construction which is more consistent with the policy of the Act arises. Heydon’s Case, (1584) 3 Co. Rep. 8, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION:       Civil Appeal No. 291  of 1955. Appeal  by special leave from the judgment and  order  dated March  29, 1955, of the Calcutta High Court in  appeal  from Appellate  Order  No.  134 of  1954,  affirming  the  appeal against the judgment and order 361 dated  July 29, 1954, of the Court of the District Judge  of 24-Parganas in Misc.  Appeal No. 87 of 1954, arising out  of the  order  of  the 1st Additional Court of  the  Munsif  at

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Sealdah dated February 2, 1954, in Misc.  Judicial Case  No. 96 of 1953. N.   C. Chatterjee and S. N. Mukherjee, for the appellant. A.   V.  Viswanatha  Sastri  and D. N.  Mukherjee,  for  the respondent. 1957 September 10.  The following Judgment of the Court  was delivered by GAJENDRAGADKAR  J.-This  is an appeal by  special  leave  in execution   proceedings  and  the  short  point  which   the appellant  has raised before us is that, under s. 5  (1)  of the  Calcutta  Thika Tenancy Act, 1949 (West  Bengal  II  of 1949)  as amended by the Calcutta Thika Tenancy  (Amendment) Act,  1953 (West Bengal VI of 1953),  execution  proceedings taken  out by the decrees against him could  be  entertained only  by the controller and not by the civil  courts.   This point  arises in this way.  The appellant is a thika  tenant in  respect of a portion of the premises No. 28, R.  G.  Kar Road  in  Calcutta.   In Suit No. 46 of 1948  a  decree  for ejectment  was  passed  against him and  in  favour  of  the respondent on March 16, 1949.  This decree was challenged by the  appellant by preferring an appeal before  the  District 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 362 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  rejected  by  Mr.  Justice Renupada Mukherjee who had heard the second appeal.  On  May 10,  1955, the appellant filed a petition for special  leave to appeal to this Court and special leave was granted to him on  May  18,  1955.  The courts below  have  held  that  the decree-holder’s  application  for execution  of  the  decree passed in his favour can and ought to be entertained by  the civil  courts  and  an order has  been  passed  against  the appellant  that  he should vacate the premises  in  question before  the  end of Jaistha 1362 B.S. (1  5th  June,  1955), failing which execution will proceed according to law.   The appellant’s contention is that the view taken by the  courts below about the competence of the civil courts to  entertain the  decree-holder’s  execution application  proceeds  on  a misconstruction  of s. 5 (1) of the Calcutta  Thika  Tenancy Act.   That  is how the only question which arises  for  our decision  is  about the construction of  the  said  relevant section. Before  dealing  with  this point, it  would  be  useful  to consider  briefly the history of legislation passed  by  the West  Bengal  Legislature  with  the  object  of   affording protection to the thika tenants.  Until 1948 the rights  and

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liabilities  of the landlords and their thika  tenants  were governed by the provisions of the Transfer of Property  Act. On October 26, 1948, the Calcutta Thika Tenancy Ordinance XI of  1948, was promulgated because it was thought  expedient, pending the enactment of appropriate legislation to  provide for  the temporary stay of the execution of certain  decrees and  orders  of  ejectment of  thika  tenants  in  Calcutta. Section  2  of  the  Ordinance  defined  the  thika  tenant. Section 3 provided that no decree or order for the ejectment of  a thika tenant shall be executed during the  continuance in operation of the Ordinance, From the 363 operation  of this section were excluded decrees  or  orders for ejectment passed against, thika tenants on the ground of non-payment  of rent unless the tenants deposited  in  court the  amount  of  the  decree or order  as  required  by  the proviso.  The object of the Ordinance clearly appears to  be to  give protection to the thika tenants in Calcutta and  to afford them interim’ relief by staying execution of  certain decrees and orders as mentioned in s. 3 until an appropriate Act was passed by the Legislature in that behalf. Then followed Act II of 1949 on February 28, 1949.   Section 2, sub-s. (5) 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, sub- s. (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 making such order,  and,  if  he allows  the application, shall make an order  directing  the thika  tenant  to  vacate the holding and,  subject  to  the provisions of section 10, to put the landlord in  possession thereof." This  section  requires the landlord wishing  to  eject  his thika tenant on one or more of the grounds specified in s.   3 to apply in the prescribed manner to the Controller 47 364 for an order in that behalf.  This section further  provides for  the  procedure  to be followed  by  the  Controller  in dealing  with  such an application.  Two other  sections  of this Act need to be considered.  Section 28 deals with cases where  decrees or orders for the recovery of  possession  of any holding from a thika tenant have been passed before  the date of the commencement of the Act and it lays down that if -possession  has not been obtained by the  decree-holder  in execution  of such decrees or orders the court may  consider whether  the  decree or order in question is or  is  not  in conformity with any of the provisions of the Act other  than subs.  (1)  of s. 5 or s. 27.  On  considering  this  matter

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jurisdiction  is given to the court to rescind or  vary  the decree or the order for the purpose of giving effect to  the relevant  provisions  of  this Act.  A decree  or  order  so varied  has then to be sent to the Controller for  execution as if it were an order made under and in accordance with the provisions  of the Act.  Having thus dealt with decrees  and orders  for ejectment passed against thika tenants prior  to the  commencement of this Act, s. 29 proceeds to  deal  with pending, proceedings for ejectment between the landlords and the thika tenants.  This section lays down that all  pending proceedings  of this character shall be transferred  to  the Controller who shall thereupon deal with them in  accordance with  the provisions of this Act as if this Act had been  in operation  on  the date of the institution of  the  suit  or proceeding.   The  proviso  to  this  section  exempts   the application  of  s. 4 of this Act to  such  proceedings  for obvious reasons. It  appears  that  the definition of  the  expression  thika tenant " contained in the Act gave rise to some difficulties and  it was discovered that some of the tenants in  Calcutta who  were  in substance thika tenants failed to  obtain  the protection  of the Act owing to some words used in the  said definition.   In  order to afford protection  to  the  whole class  of thika tenants in Calcutta, 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 365 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 judgment-debtor as  a thika  tenant  would then have to be  determined  under  the amended definition of the expression "thika tenant".  If the finding  on  the  question of status is  in  favour  of  the judgment-debtor  then the decree or order would have  to  be set aside and execution proceedings annulled, and the matter sent  back  to  the  court or  Controller  for  disposal  in accordance  with  law.  Subsection (3) of s. 5  enables  the court  or  the Controller to stay proceedings,  if  any,  in execution pending the disposal of an application made  under sub-s. (2).  In other words, the effect of sub-s. (2) of  s. 5  clearly appears to be that, in regard to  decrees  passed during the period mentioned by this subsection, a  judgment- debt-or  was given a right to challenge the validity of  the said  decree  or  order on the ground that he  was  a  thika tenant  under the amended definition of the said  expression and  this right could be exercised by making an  appropriate application  within the prescribed period of  three  months. If no such application is made by the judgment-debtor within the  prescribed  period,  then  the  decree  or  order   for

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ejectment  passed  against him would be executed  under  the ordinary law. 366 This  Ordinance was followed by the Calcutta  Thika  Tenancy (Amendment)  Act, 1953 (West Bengal VI of 1953).   This  Act came  into force immediately on the Calcutta  Thika  Tenancy (Amendment) Ordinance, 1952 (West Bengal Ordinance No. XV of 1952), ceasing to operate.  Under the proviso to s. 1,  sub- s.  (2)  of this Act, the provisions of the  Calcutta  Thika Tenancy  Act II of 1949, as amended by this Act, shall  also apply  and be deemed to always apply to all  suits,  appeals and  proceedings  pending  before any court  or  before  the Controller or before a person deciding an appeal under s. 27 of  this  Act on the date of the commencement  of  the  said Ordinance  of  1952.  It must, however, be added  that  this proviso  was subject to the provisions of s. 9 of this  Act. We  will  presently  refer to s. 9. Section 2  of  this  Act adopted the amendment of the definition of the expression, " thika tenancy" introduced by the amending Ordinance of 1952. Section 4 of this amending Act has amended a. 5, sub-s.  (1) of  the original Act by deleting the words "but  subject  to the provisions of s. 28" which occurred in the said section. By s.8 of this Act, ss. 28 and 29 in the original Act II  of 1949 have been omitted and by a. 9 it is laid down 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 367 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, says Mr. Chatterjee, courts should be slow to reach the conclusion that any class of thika tenants are  excluded from the benefit of the said Act.  In    support   of    his argument   Mr.   Chatterjee  hasnaturally  relied   on   the observations  made  by Barons of the Exchequer  in  Heydon’s case  (1).Indeed these observations have been so  frequently cited  with approval by courts administering  provisions  of welfare enactments that they have now attained the status of a  classic  on  the subject and  their  validity  cannot  be challenged.  However, in applying these observations to  the provisions  of any statute, it must always be borne in  mind that the first and primary rule of construction is that  the intention of the Legislature must be found in the words used by the Legislature itself.  If the words used are capable of one  construction  only  then it would not be  open  to  the courts  to adopt any other hypothetical construction on  the ground   that   such  hypothetical  construction   is   more consistent  with the alleged object and policy of  the  Act. The  words  used in the material provisions of  the  statute

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must  be interpreted in their plain grammatical meaning  and it is only when such words are capable of two  constructions that  the question of giving effect to the policy or  object of the Act can legitimately arise.  When the material  words are capable of two constructions, one of which is likely  to defeat  or  impair the policy of the Act  whilst  the  other construction is likely to assist the achievement of the said policy,  then  the courts would prefer to adopt  the  latter construction.   It  is only in such cases  that  it  becomes relevant to consider the mischief and defect which the,  Act purports  to  remedy  and correct.   Indeed  Mr.  Chatterjee himself  fairly conceded that be would not be  justified  in asking the court to put an undue strain on the words used in the section in order (1)  (1584) 3 Co. Rep. 8. 368 that  a construction favourable to the thika tenants  should be deduced.  It is in the light of this legal position  that we must now consider s. 5, sub-s. (1) of West Bengal Act  II of 1949, amended by West Bengal Act VI of 1953. Under  the provisions of ss. 5 and 28 of the  original  West Bengal  Act  II  of  1949, the position  was  clear.   If  a landlord  wished to eject his tenant he could have  obtained an  order for ejectment only if his claim was  justified  on one  or more of the grounds recognized by s. 3 of  the  Act. If,  after 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  invoked  against a landlord who  has  obtained  a decree for ejectment of his thika tenant.  It is quite plain that when a decree-holder seeks to obtain possession of  his property  in  execution  of a decree he cannot  be  said  to obtain such possession on any of the grounds mentioned in s. 3.  All that he does is to rely upon the decree passed by  a court  of  competent  jurisdiction and to  insist  upon  its execution.  Similarly the proceedings contemplated by s.  5, sub-s. (1), cannot in 369 our  opinion,  be said to include execution  proceedings  of this type.  Section 5, sub-s. (1) deals with cases where the landlord  initiates  original proceedings for  ejecting  his thika tenant.  This sub-section refers to a landlord wishing to  eject  a  thika tenant on one or  more  of  the  grounds specified   in  s.  3.  Now  this  description   is   wholly inapplicable to a landlord who holds’ a decree for ejectment in his favour.  That is why we feel no hesitation in  coming to  the conclusion that landlords who have obtained  decrees

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of ejectment against their thika tenants cannot be  required to  apply  under the provisions of s. 5, sub-s. (1)  of  the Act.   That  is  one  aspect  of  the  matter.   The   other provisions  of the said sub-section also point to  the  same conclusion.  When an application for ejectment is made under s.  5,  sub-s. (1), notice is ordered to be  issued  to  the thika  tenant and enquiry follows in the light of  the  pro- visions  of s. 3. It is only if the Controller is  satisfied that one or more of the grounds recognized by s. 3 is proved by the landlord that an order for ejectment would be  passed by  him and this order would be followed by a  direction  in consequence of which the landlord would be put in possession of the premises.  Section 5, sub-s. (1) thus provides for  a self  contained procedure for dealing with applications  for ejectment made by a landlord against his thika tenant before the Controller. Mr.  Chatterjee, however, suggests that the deletion of  the words  "  subject  to  the  provisions  of  s.  28  "  which originally  occurred in s. 5 indicates that  the  Controller has  been given jurisdiction not only to entertain  original applications for ejectment made by the landlords but also to deal  with decrees already passed in their favour.   Whether or not the use of the deleted words in the original s. 5 (1) served  any  useful  purpose  and  what  exactly  was  their denotation  are  matters  on  which  it  is  unnecessary  to pronounce 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 370 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 protection  to  all  thika tenants even  where  decrees  for ejectment had been passed against them.  It must be conceded that  under  the  original  Act, s.  28  purported  to  give protection to judgmentdebtors’ and required that the decrees passed  against  thika  tenants should be  examined  by  the courts  that  passed  the  decrees  in  the  light  of   the provisions  of  the Thika Tenancy Act.  But,  later  on,  it appears to have been thought prudent to limit the protection to such judgment-debtors in the manner contemplated by s. 5, sub-s.  (2)  of  the  amending  Ordinance  of  1952.    Such judgment-debtors  were allowed liberty to apply for  setting aside  the decrees passed against them within  three  months after  the  commencement  of the  said  Ordinance  and  such applications were required to be dealt with according to law even after the Ordinance ceased to be operative.  As we have already pointed out, the decree with which we are  concerned in  the  present  appeal falls within  the  purview  of  the provision  of  s. 5, sub-s. (2) of the  Ordinance.   If  the

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judgment.  debtor  did  not  avail  himself  of  the   right conferred  on him by this provision, he cannot now  seek  to rectify  the omission by relying on the provisions of s.  5, sub-s. (1) as amended.  It may be unfortunate that owing  to the steps that he was taking in several 371 proceedings adopted by him in the present litigation he  was probably  not advised to make a proper application under  s. 5,  sub-s.  (2)  of  the Ordinance; but  that  is  the  only protection  that he and judgment-debtors of his  class  were entitled  to after the amending Ordinance of 1952 came  into force.   It would, therefore, not be reasonable to  complain that no protection whatever has been given to this class  of thika tenants.  It may be that the extent of the  protection now  afforded  to  this  class may not  be  as  wide  as  it originally  was  under  s.  28 of Act II  of  1949  but  the deletion  of  s. 28 clearly indicates that  the  Legislature wanted  to revise its policy in this matter.  The  position, therefore,  is  that  the conclusion which  follows  from  a reasonable construction of s. 5, sub-s. (1) is  corroborated by  the deletion of s. 28 from the Act and by the  provision of s.     5,  sub-s. (2) of the amending Ordinance  of  1952 and s.    9   of   the  amending  Act  VI   of   1953.    We must,accordingly,  hold  that the Calcutta  High  Court  was right  in  rejecting  the appellant’s  argument  that  civil courts  had  no  jurisdiction  to  entertain  the  execution petition filed by the respondent against the appellant.   In the  result,  the appeal fails and must  be  dismissed  with costs. Appeal dismissed.