Karsandas Khimji Popat vs C.B.F. Saunders

P.N. Mookerjee, J.—This Rule was obtained by the landlords Petitioners against an order of the Tribunal below staying the hearing of an application u/s 151 of the Code of Civil Procedure, filed by the opposite party, for the setting aside of an order, purported to have been made on compromise, allowing the present Petitioners'' application for eviction against the said opposite party under the Calcutta Thika Tenancy Act.

The stay appears to have been granted by the Tribunal below under the Calcutta Thika Tenancy Stay of Proceedings (Temporary Provisions) Act, 1968 (President''s Act 3 of 1968), u/s 3 thereof or, to be more precise, u/s 3(a) of the said Act.

The Petitioners'' original application for eviction of the opposite party under the Calcutta Thika Tenancy Act was allowed by the Controller by his order No. 16, dated April 20, 1967, which was in the following terms:

Parties present and filed a joint application of compromise. The application is found valid and legal. In terms of the joint application, the application is allowed. Joint application do form a part of the order.

The opposite party thereafter filed his present application u/s 151 of the CPC on July 14, 1967, praying inter alia therein that the consent decree and/or order for possession, passed on the basis of the above alleged compromise, be set aside and the case be restored and heard on the merits. The Hearing of this application was stayed by the impugned order, as stated above, u/s 3 of the President''s Act 3 of 1968 [The Calcutta Thika Tenancy Stay of Proceedings (Temporary Provisions) Act, 1968]. That Section 3 stands as follows:

Notwithstanding anything contained in the Calcutta Thika Tenancy Act, 1949, or in any other law for the time being in force,

(a) all applications for ejectment of thika tenants,

(b) all appeals from orders made on such applications, and

(c) all proceedings in execution of orders for ejectment of thika tenants under the provisions of the said Calcutta Thika Tenancy Act which are pending at the date of commencement of this Act or which may be made, preferred or commenced after such date but before the expiry of this Act, shall be stayed for the period during which this Act continues in force.

The first question is whether the present application u/s 151 of the CPC comes under any of the above descriptions in Clauses (a), (b) and (c) of Section 3. It is certainly not an appeal nor is it a proceeding in execution. Clearly, therefore, Clauses (b) and (c) would be excluded. The application, if it comes at all within any of the above descriptions, would come within Clause (a), (b) and (c) of Section 3. It is certainly not an appeal nor is it a proceeding in execution. Clearly, therefore, Clauses (b) and (c) would be excluded. The application, if it comes at all within any of the above descriptions, would come within Clause (a). Clause (a), however, refers only to applications for ejectment of thika tenants and applications u/s 151 of the CPC for setting aside a decree or order of eviction against the thika tenant can hardly be called an application for ejectment of a thika tenant. On this ground alone, the opposite party''s instant prayer for stay should have been refused.

It is also to be noted that the Act contemplates stay of applications for ejectment of thika tenants which were pending at the date of commencement of the Act or which may be made, preferred or commenced after such date. In the instant case, if the above view be correct, no application for ejectment of a thika tenant can be said either to be pending at the date of commencement of the above Act or to have been made, preferred or commenced after such date. In this view, the said section would have no application to the instant case.

On all the above grounds, we hold that the learned Tribunal below exercised a jurisdiction, not vested in it by law, in staying the hearing of the opposite party''s application u/s 151 of the Code. His order, accordingly, must be set aside and the same must be sent back to him for being dealt with in accordance with law in the light of the observations made in this judgment.

We may also point out that, whatever the result of the opposite party''s above application may be, whether it be allowed or dismissed, the purpose of the Act would be sufficiently fulfilled inasmuch as, if the application be allowed and the original proceedings be revived under the statute, there would be an immediate stay of the said original proceedings until the expiry of the new Act. If, on the other hand, the application be dismissed, the stay will of course be at the stage of executing, but there also the stay would be immediate and the execution will be immediately stayed until the expiry of the new statute. In either event, therefore, the purpose of the Act will be sufficiently fulfilled on the interpretation given above by us.

We may point out further that a similar view was taken by this Court in a series of cases: vide Prankrishna Mukherjee v. Jnanada Roy (1941) 45 C.W.N. 967, Abdul Hamid Bepari v. Nripendra Kumar Roy (1945) 49 C.W.N. 681 and Kaliprosad Saha v. Naihati Jute Mills Company Ltd. (1945) 50 C.W.N. 50 under a similar Statute [Bengal Non-Agricultural Tenancy (Temporary Provisions) Act] in interpreting Section 3 thereof, which was in substantially similar terms to the present section.

We, accordingly, make this Rule absolute, set aside the impugned order of the learned Tribunal below and send the matter back to it with-a direction that the hearing of the opposite party''s application u/s 151 of the Code be proceeded with and dealt with in accordance with law in the light of the observations made in this judgment.

There will be no order for costs in this Rule.

A.N. Chakrabarti, J.

I agree.