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PETITIONER: NALINAKHYA BYSACK

       Vs.

RESPONDENT: SHYAM SUNDER HALDAR AND OTHERS.

DATE OF JUDGMENT: 29/01/1953

BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN MAHAJAN, MEHR CHAND BHAGWATI, NATWARLAL H.

CITATION:  1953 AIR  148            1953 SCR  533  CITATOR INFO :  R          1982 SC 149  (252)  F          1990 SC 933  (14)  RF         1991 SC 101  (69,227,273)  R          1992 SC  96  (14)

ACT: West Bengal Premises Rent Control (Temporary Provisions) Act (XVII of 1950), s. 18 (1)- Whether aplies to orders for  re- covery  of possession made by Presidency Small Cause  Court- "  Decree  for  recovery  of  possession  "-Construction  of statutes-Mistakes of legislature.

HEADNOTE: The  expression " decree for recovery of possession " in  s. 18 (1), of the West Bengal Premises Rent Control  (Temporary Provisions) Act (Act XVII of 1950) does not include an order for  recovery  of  possession  made  under  s.  43  ’of  the Presidency  Small  Cause  Courts Act,  1882,  and  a  person against whom an order for 534 recovery  of possession has been passed under s. 43  of  the Presidency  Small Cause Courts Act, 1882, is  not  therefore entitled  to claim relief under the provisions of s. 18  (1) of Act XVII of 1950. Rai  Bahadur Atulya Dhan Banerjee v. Sudhangsu Bhusan  Dutta ([1951] 5 5 O.W.N. 343), Dhanesh Prokash Pal-v.  Lalit Mohan Ghosh ([1951] 55 C.W.N. 347), Mohan Lal Khettry v. Chuni Lal Khettry  ([1951]  55 C.W.N. 421) Jethmull  Sethia  v.  Aloke Ganguly  ([19511 55 C.W.N. 563), Iswari Prosad Goenka v.  N. B. Sen ([19511 55 C.W.N. 719) overruled. In construing a statute it is not competent to any court  to proceed upon the assumption that the Legislature has made  a mistake and even if there is some defect in the  phraseology used by the Legislature, the Court cannot aid the  defective phrasing  of  an Act or add and amend, or  by  construction, make up deficiencies which are left in the Act. Commissioner  for Special Purposes of Income Tax  v.  Pemsel (11891]  A.C. 531); Crawford v. Spooner ([1846-51] 4  M.I.A. 179)  and Hansraj Gupta v. Official Liquidator of Dehra  Dun Mussourie  Electric  Tramway Co. Ltd. ([1933]  60  I.A.  13) referred to.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: , Civil Appeal No. 96 of 1952. Appeal  from  the Judgment and Order dated  the  9th  April, 1951,  of the High Court of Judicature at Calcutta (Sen  and Chunder  JJ.) in Civil Rule No. 1038 of 1950 arising out  of the Order dated the 4th July, 1960, of the Court of the  6th Judge, Presidency Small Causes Court, Calcutta, in Ejectment Suit No. 6571 of 1949. Arun Kumar Dutta and, Shivdas Ghosh for the appellant. Panchanan Ghose (S.  P. Ghose, with him) for the respondent. 1953.  January 29.  The Judgment of the Court was  delivered by DAS  J.-This  appeal is directed against  the  judgment  and order  of a Bench of the Calcutta High Court passed  on  the 9th April, 1961, in Civil Rule No. 1038 of 1950.  The  facts leading up to this appeal may be shortly stated as follows : The  respondents were, according to the  appellant,  monthly tenants  under the appellant in respect of three rooms,  one kitchen,  one  privy and a bathroom on the ground  floor  of premises No. 6, Roy Began 535 Street,  Calcutta,  at  a monthly rent  of  Rs.  25  payable according  to  the  Bengali calendar  month.   On  the  29th Baisakh  1356  B.  S.  the  appellant  gave  notice  to  the respondents  to  quit  the premises on  or  before  the  7th Jaistha  1356 B.S. The respondents having failed  to  comply with  the  notice  the  appellant on  the  1st  June,  1949, instituted  proceedings under 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  Rs. 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  out  in  the respondents’ case, are as follows : "5-6-50.  On consent all arrears of rent up to Jaistha  1357 B.S.  with interest at 9% p.a. along with the costs  of  the suit  including half Pleader’s fee amounting to Rs.  399-3-0 on  consent  in total to be paid by the  defendants  to  the plaintiff  by 4-7-50.  The date fixed for payment and  final orders.  All proceedings and execution stayed until  further orders." The agreed amount having been paid the order for  possession was vacated on the 4th July, 1950.  The                            536 order as recorded in the order sheet reads as follows:- "4-7-50.  Parties present as before.  Defendant carries  out the order of the learned Court, dated 5th June, 1950.  Money

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deposited in Court as ordered.  Accordingly order of  decree for possession is vacated.  Money in Court is allowed to  be withdrawn by the plaintiff’s pleader under power." The appellant on the 1st August, 1950, moved the High  Court under section 115 of the Code of Civil Procedure for setting aside  the order of the trial Court passed on the 4th  July, 1950.   While  the application was pending before  the  High Court  the  West ’Bengal Premises  Rent  Control  (Temporary Provisions)  (Amendment) Act, 1950 (Act LXII of  1950)  came into  force on the 30th November, 1950.  On the  9th  April, 1951,  the  High  Court following  an  earlier  decision  of another  Bench  of  that Court in Rai  Bahadur  Atulya  Dhan Banerjee   v.  Sudhangsu  Bhusan  Dutta(1)   dismissed   the application.   On  the 30th November, 1951, the  High  Court granted  leave to the appellant to appeal to this Court  and issued a certificate under the provisions of article 133 (1) (c) of the Constitution of India. As already stated, the proceedings out of which the  present appeal  arises  were  instituted under Chapter  VII  of  the Presidency  Small  Cause Courts Act, 1882.  Chapter  VII  of that  Act  which  is intituled "Recovery  of  Possession  of Immovable   Property"  allows  the  landlord,   in   certain circumstances,  to  "apply to the Small Cause  Court  for  a summons against the occupant calling upon him to show  cause on a day therein appointed why he should not be compelled to deliver  up the property." Section 43 provides that  if  the occupant does not appear at the time appointed or show cause to the contrary, the applicant landlord shall, if the  Court is satisfied that he is entitled to apply under section  41, be entitled to an order addressed to a Bailiff of the  Court directing (1)  (1951) 55 C.W.N, 343. 537 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(1)]. 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 provisions  of the West Bengal pending  suits in        Premises Rent  Control  (Temporary, certain   cases           Provisions)  Act,   1948,but   the possession of such premises has not been recovered from  the tenant, the tenant may apply to the trial Court within sixty days  of the coming into force of this Act for vacating  the decree  for ejectment against him and within such period  no order for delivery of possession shall be made by any Court, nor if an application is made by the tenant under this  sub- section  till the application has been dismissed under  sub- section (4)."

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In  Rai  Bahadur Atulya Dhan Banerjee  v.  Sudhangsu  Bhusan Dutta  it was held that the expression "decree for  recovery of  possession" in subsection (1) of section 18 includes  an order  for recovery of possession made under Chapter VII  of the Presidency Small Cause Courts Act, 1882.  This case (1) (1927) I.L.R. 51 BOM. 385. (2) (1951) 55 C.W.N. 343. 538 was  followed,  without  further  discussion,  by  different Benches  of  the-same High Court in Dhanesh Prakash  Pal  v. Lalit  Mohan  Ghose  (1), Mohon Lal  Khettry  v:  Chuni  Lal Khettry(2), Jethmull Sethia v. Aloke Ganguly (3) and also in the   present  case.   Finally,  the  question   was   again considered  by a larger Bench of the Calcutta High Court  in Iswari  Prosad Goenka v. N. B. Sen(4).  The  learned  Judges agreed with the earlier decision in Rai Bahadur Atulya  Dhan Banerjee v.    Sudhangsu Bhusan Dutta (5).  After hearing the  able arguments I advanced before us and giving the most anxious   consideration  to  the  decisions  in  the   cases mentioned  above  we-are  unable to  accept  the  conclusion arrived at by them in those, cases as correct. Apart from the question whether the marginal note can at all be referred to in construing the provisions of a section  of an  Act,  it is quite clear, on the  authorities,  that  the marginal note cannot control the meaning of the body of  the section  if  the  language employed  therein  is  clear  and unambiguous.  If the language of  the section is clear  then it may be that there is  an accidental slip in the  marginal note rather than    that the marginal note is correct and  the  accidental  slip is in the  body  of  the  section itself.   Take  for instance section 11 of the  West  Bengal Premises  Rent  Control Act, 1948.  The  section  says  that notwithstanding anything contained in certain Acts specified therein, "no order or decree for the recovery of  possession of any 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 (1)  (1951) 55 C.W.N. 347. (2)  (I951) 55 C.W.N. 421. (3)  (1951) 55 C.W N. 563. (4) (1951) 55 C.WN. 7I9. (5) (1951) 55 C.W.N. 343. 539 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 clearly against a decree for  possession which  "has been made" under the 1948 Act.  The language  of section  18  (1)  of  the 1950 Act  and  in  particular  the specific  reference therein to the Act of 1948 take us  back

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to that Act.  Section II of the 1948 Act %refers " to  order or decree for the recovery of possession of, any  premises". The  reference in the non obstante clause of section  11  to the  Presidency  Small  Cause Courts  Act,  I  882,  clearly indicates  that  the order for the  recovery  of  possession refers  to  orders  passed  under section  43  of  the  last mentioned Act on applications made under section 41 thereof. Section  11  speaks of both " order " for  the  recovery  of possession  and " decree " for the recovery  of  possession. Therefore, there can remain no manner of doubt that the  two words  "  order " and " decree " in section 11  connote  two different things.  This is further made clear by the use  of two  words " suit " or " proceeding " in section 12  of  the 1948  Act.  It is, thus, quite clear that in the 1948 Act  " suit  "  is different from " proceeding" and "  order  "  is different from " decree ". Therefore, in construing the 1948 Act there can be no occasion for giving any extended meaning to the word " decree" so as to include "order", for the  two are distinctly and separately provided for.  Section 18  (1) of Act XVII of 1950 does not refer to "decree" 70 540 simpliciter but to "any decree for recovery of possession of any premises on the ground of default in payment of  arrears of rent under the provisions of" the 1948 Act.  Turning then to  that  Act we find that a decree for  possession  on  the ground  of  non-payment of rent under that  Act  is  treated distinctly  from  an order for possession on the  ground  of non-payment  of rent under the same Act.  A decree  for  the recovery  of possession within the meaning of that Act  can, therefore,  only  mean a decree in a suit  for  recovery  of possession  and cannot cover an order for possession  passed under section 43 on an application made under section 41  of the  Presidency Small Cause Courts Act.  In  short,  section 18(1)  of Act XVII of 1950 expressly attracts the  1948  Act and  under that Act there can be no necessity for giving  an extended meaning to the word "decree", for "order " is sepa- rately dealt with in that Act. It  is said that whatever the word "decree" may mean in  the 1948 Act it is immaterial for the purposes of construing Act XVII  of 1950 for the 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, 541 Civil  Procedure  Code).   This  is  the  ordinary  accepted meaning  of  the  word " decree " and  if  that  meaning  is attributed to the word " decree " occurring in section 18(1) then clearly it cannot cover an order for possession  passed under section 43 of the Presidency Small Cause Courts Act on

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an application made under section 41 of that Act. It is, however, urged that the word " decree" in -section 18 (1)  of  Act XVII of 1950 should not be read in  its  strict sense.  It is said that although the word "suit"  ordinarily means  a proceeding instituted by a plaint, it is also  used in  a wider sense so as to cover proceedings which  are  not instituted  by a plaint and, therefore., an adjudication  in those  proceedings  which are also suits  in  that  extended meaning  may well be said to be a " decree".   Reference  is made to the explanation of sub-section (1) of section 12  of Act  XVII  of  1950, which expressly provides  that  in  the proviso to sub-section (1) the term "suit" does not  include proceeding  under Chapter VII of the Presidency Small  Cause Courts  Act,  1882, and it is urged  that  this  explanation inferentially means that the word " suit " occurring in  the other sections of Act XVII of 1950 may include a  proceeding under  Chapter VII of the Presidency Small Cause Courts  Act and,  therefore, an order made on such a proceeding  may  be described  as  an adjudication in a suit and,  therefore,  a decree.   It is not quite clear how this inference, even  if it  can  be  properly drawn, can have  any  bearing  on  the construction  of  the word "decree" in  sub-section  (1)  of section  18 of the Act XVII of 1960 where the word " suit  " is not used at all.  Be that as it may, the argument founded on  the  aforesaid  inference sought to be  drawn  from  the explanation  to  section  12 (1) of Act XVII  of  1950  will clearly  appear to be untenable when the provisions of  that Act are closely scrutinised, for it will then be found  that the word " suit" does not and was not intended to cover  any proceeding  under Chapter VII of the Presidency Small  Cause Courts  Act.   Section 12 (1) prohibits the  making  of  any order or decree for the - 542 recovery   of  possession  by  any  Court,   notwithstanding anything to the contrary in any other Act or law.  This sub- section  (1),  standing by itself, means that no  order  for possession can be passed by the Presidency Small Cause Court notwithstanding the Presidency Small Cause Courts Act and no decree  for possession can be made by any Court in any  suit notwithstanding the Transfer of Property Act or the Contract Act  or the Code of 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 Rs. 500 per month, the  Chief Judge of the Calcutta Court of Small Causes shall  entertain and try such suit as a Court of the District Judge, provided that be shall be entitled to transfer the suit to any  other Judge  of  that  Court who shall try it as a  Court  of  the Subordinate  Judge.  The result of sections 12 and  16  read

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with Schedule B is for all practical purposes to suspend the operation  of  Chapter  VII of the  Presidency  Small  Cause Courts  Act in Calcutta for no one will take proceedings  in which no order can be made.  The effect of those sections is to confer a new jurisdiction on the 543 Chief  Judge of the Calcutta Small Cause Court to  entertain and  try suits by landlords against tenants for recovery  of possession of premises situate within the ordinary  original civil  jurisdiction  of  the Calcutta High  Court  when  the monthly  rent does not exceed Rs. 600.  Thus after Act  XVII of  1950 came into force the Calcutta Small Cause Court  has ceased  to  have any power to pass an order  for  possession under  Chapter VII of the Presidency Small Cause Courts  Act and the Small Cause Court of Calcutta can, under that  Act,, only  pass a decree for possession in a suit Which is  saved by  the  proviso to sub-section (1) of section 12  and  with regard to which a special jurisdiction is conferred on  that Court  by section 16 of that Act.  That being the  position, the word" suit " in none of the sections of Act XVII of 1950 can  be  said to have been used as including  -a  proceeding under Chapter VII of the Presidency Small Cause Courts  Act. Therefore, the reasoning advanced in support of  attributing an   extended   meaning  to  the  word   "suit"   and   then inferentially to the word decree " in section 18 (1)  cannot be sustained. It  is  next argued that if the word "decree"  is  construed strictly it will give rise to startling results in that poor tenants  against  whom orders for possesSion had  been  made under  the  1948  Act will be deprived  of  the  benefit  of section 18 (1) while the wealthy tenants paying rents  above Rs.  500  per month will get relief under that  section  and this will frustrate the intention of the Legislature.   This argument  proceeds  on the assumption that  the  Legislature intended  to give relief to all tenants against whom  orders or  decrees for possession had been made.  The  language  of section  18  (1)  clearly shows that the  intention  of  the Legislature  was to give relief only to certain  tenants  in certain  circumstances.  In the first place relief is  given only  with  respect  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 544 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 possession  in  a suit and to execute such decree, because both the decree for possession in a suit and the order for execution thereof are subject  to appeal.  The Legislature may well  have  thought

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that  cases where orders for possession had been made  under Chapter  VII of the Presidency Small Cause Courts  Act  with respect to premises which were situate within the small area of the ordinary original civil jurisdiction of the  Calcutta High Court and which, in spite of such orders, were still in the   possession  of  the  tenants  at  the  date   of   the commencement  of Act XVII of 1950 would be few in number  as compared to the number of cases where decrees for possession had  been made with respect to premises which  were  situate within  a very much larger area and which were still in  the possession of the tenants and, therefore, did not think  fit to provide for those few cases.  It must always be borne  in mind,  as said by Lord Halsbury in Commissioner for  Special Purposes  of  Income  Tax  v. Pemsel (1),  that  it  is  not competent  to any Court to proceed upon the assumption  that the Legislature L. R. [1891] A. C. 531 at P. 549. 545 has  made a mistake.  The Court must proceed on the  footing that  the  Legislature intended what it has said.   Even  if there  is  some  defect  in  the  phraseology  used  by  the Legislature the Court cannot, as pointed out in Crawford  v. Spooner(1),  aid the Legislature’s defective phrasing of  an Act or add and amend or, by   construction,     make      up deficiencies which are left in     the   Act.   Even   where there is a casus omissus, it is, as     said by Lord Russell of Killowen in Hansraj Gupta v.    Official  Liquidator   of Dehra  Dun-Mussoorie  Electric Tramway Co.,  Ltd.  (2),  for others than the Courts to remedy the defect.  In our view it is  not right to give to the word " decree" a meaning  other than its ordinary accepted meaning and we are bound to  say, in  spite  of our profound respect for the opinions  of  the learned  Judges  who decided them, that  the  several  cases relied on by the respondent were not correctly decided. Reference was made, in, course of argument, to section 6  of the  West Bengal Act LXII of 1950.  That section  refers  to orders or decrees made between the commencement of Act  XVII of 1950 and Act LXII of 1950, i.e., between the 30th  March, 1950,  and  the  30th November, 1950, and  cannot  have  any application to the order for possession made in this case on the 27th February, 1950. For reasons stated above this appeal must be allowed and the order  made  by the High Court should be set aside  and  the respondents’ application under section 18 (1) of Act XVII of 1950  should be dismissed and we order accordingly.  In  the circumstances  of  this case we make no order  as  to  costs except  that  the  parties  should  bear  their  own   costs throughout. Appeal allowed. Agent for the appellant: S. C. Bannerji. Agent for the respondent : Sukumar Ghose. (1)  6 Moo.  P.C. I; 4 M.I.A. 179. (2)  (1933) L.R. 60 I.A. I3; A.I.R. 1933 P.C 63. 546