Sova Rani Dasi vs Parul Rani Chowdhury

S.K. Bhattacharyya, J.—This application by the Petitioner thika tenant under Article 227 of the Constitution of India is for setting aside the orders rejecting the Petitioner''s application u/s 7A of the Calcutta Thika Tenancy Act, 1949 (hereinafter referred to as ''the Act''), as amended by the Calcutta Thika Tenancy (Second Amendment) Act, 1969 (W.B. XXIX of 1969), both by the Thika Controller as also by the appellate Tribunal.

The facts leading up to the present application may briefly be stated The Petitioner was a thika tenant in respect of about three cottahs of land, which was purchased, by the opposite parties'' predecessor under a registered instrument on March 1,1959 On January 7,1961, the opposite parties'' predecessor instituted a suit for eviction of the Petitioner u/s 5(3) of the Act from the disputed land on the ground of his own occupation The application was allowed on contest, on July 14, 1962 and an engineer-commissioner was thereafter appointed to report about the valuation of the structures While the valuation matter was pending before the learned Thika Controller, the Calcutta Thika Tenancy (Second Amendment) Act, 1969, came into force on and from October 30, 1969 and Section 7A was introduced into the Statute empowering the Controller to set aside orders for ejectment in certain cases On December 23,1969, the Petitioner filed an application u/s 7A of the Act for setting aside the order of eviction dated July 14, 1962, inter alia, on the ground that some portion of the disputed property was pucca and he was not, therefore, liable to be evicted from the land It was further sought to be contended before the learned Thika Controller that the opposite parties no longer required the land for their own occupation inasmuch as they had entered into an agreement for sale of the same to a third party The learned Thika Controller refused to accept any of the aforesaid contentions of the Petitioner and held that the Petitioner was not, therefore, entitled to get any relief under the provisions of Section 7A of the Act Accordingly, the application was rejected The Petitioner thereupon preferred an appeal to the appellate Tribunal which was heard by the Additional District Judge, Seventh Court, Alipore The learned appellate Tribunal upheld the finding of the Thika Controller in so far as the nature and character of the structure was concerned and dismissed the appeal Against this decision the Petitioner moved this Court under Article 227 of the Constitution of India and obtained this instant Rule.

Mr. Chakravarty, the learned Advocate appearing for the Petitioner, has canvassed two main grounds in this Rule He has also filed a petition annexing therewith the copy of a judgment passed in T S No. 103 of 1968 of the Subordinate Judge, First Court, Alipore, between the opposite parties on the one hand and one Kalpana Das on the other, over the disputed property and prays for taking this decision into consideration as a subsequent event In fact, Mr. Chakrabarty''s main contention is that as a result of that decision in T S No. 103 of 1968 of the First Court of Subordinate Judge at Alipore on May 29,1975, the opposite parties have lost their title to the disputed property and have been directed to execute a registered sale deed in respect thereof in favour of the Plaintiff of the said suit and it cannot be contended any longer that the opposite parties required the land for their own occupation within the meaning of Section 3(1)(ii) of the Act The decision which had been made annex ''A'' to the affidavit affirmed on behalf of the Petitioner shows that one Sm. Kalpana Das filed a suit for specific performance of contract admittedly for the sale of the disputed property and obtained a decree for specific performance of contract directing the present opposite parties to execute and register a sale deed in favour of the Plaintiff of the said suit upon receipt of the balance of the consideration money within a certain period Mr. Ganguli appearing for the opposite party landlord has put in, an affidavit-in-opposition to the Petitioner''s application and affidavit for consideration of subsequent event and has contended that although the suit for specific performance was decreed against his client, they '' have filed a fresh suit, being T S No. 92 of 1976 of the Second Court of Munsif at Alipore for a declaration that the impugned decree referred to above was illegal, void and inoperative and for a permanent injunction Mr. Ganguli further contends that the alleged agreement for sale on the basis for which the suit for specific performance of contract was instituted, came to be executed on or about March 30,1968, that is long after the ejectment case was allowed against the Petitioner and this Court should not take this subsequent contract or the decree based thereon into consideration in an application under Article 227 of the Constitution In fact, Mr. Ganguli contends that the material date for consideration of the Court would be the date on which the order for eviction was passed and what transpired subsequent thereto could not be taken into consideration, more particularly as this is an application under Article 227 of the Constitution of India and not an appeal against the decision of the Thika Controller.

It is well-settled that the High Court in exercise of its power under Article 227 of the Constitution has a right to interfere with the decisions of the Courts and Tribunals under its power of superintendence, but that right is exercised only sparingly and in appropriate cases This power has to be exercised in order to keep the subordinate Courts within the bounds of their authority and not merely to correct errors made by them The right, it has been held by this Court in the case of Dalmia Jain Airways v. Sukumar Mukherjee AIR 1951 Cal 334, should be exercised only in cases where Courts or Tribunals have clearly done something which they were not entitled to do The above observation of this Court was approved by the Supreme Court in the case of Wary am Singh and Anr. v. Amarnath and Anr. (1954) S.C.A. 334 and in some other cases Mr. Chakravarty, on the other hand, contends that this Court has not only the powers to correct the error but to make such disposition of the case as justice requires and in support relies upon an observation of Hughes C.J. in the case of Patterson v. State of Alabama (1934) 294 U.S. 600 quoted with approval by Gwyer C.J. in the case of Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhury (1941) C.W.N. (F.R.) 66. The observation runs thus:

We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make disposition of the case as justice requires And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered,

The above observation was also quoted with approval by the Supreme Court in the case of Surinder v. Gian Chand (1958) S.C.A. 412.

It is well-settled that an appellate Court would normally take judicial notice of subsequent events or legislation when it is brought to its notice with regard to the matters in controversy between the parties and this is primarily done by the appellate Court in order to shorten litigation between the parties Reference may in this connection be made to the decisions in the case of Radha Charan Das Babaji v. Bhim Patra AIR 1966 Ori 241 and P.B. Kader and Others Vs. Thatchamma and Others, . In the last cited case it was further pointed out that the rule had certain exceptions, namely, that the subsequent events must possess a decisive bearing on the issues in the case and must have occurred independently of the exertions of the parties and must be such as would stultify the decree, if not taken into account But the question for decision is whether this rule which the Court should and must take into consideration in an appeal against a decision of the lower Court, could be availed of by a party in a proceeding under Article 227 of the Constitution of India In my view, it is not open to the Court hearing an application under Article 227 of the Constitution of India to take into consideration subsequent events so as to replace or correct the decision of the Tribunals below An appeal, it is well-settled, is a continuation of the suit for the purpose of hearing and the Court therein acts for the purpose of hearing and the Court therein acts for the purpose of shortening the litigation, whereas an application under Article 227 of the Constitution cannot in any view of the matter be regarded as a continuation of the proceeding before the Tribunals Mr. Chakravarty contended that the self-imposed limits to the power of the High Court under Article 227 of the Constitution should be relaxed in a case where the Court is convinced that there has been flagrant or manifest error of law apparent on the fact of the record or an outrageous miscarriage of justice Reliance was placed upon the decision of a learned Judge of the Allahabad High Court sitting 1 singly in the case of Jodhey v. State AIR 1932 All. 788 in this connection. That observation was no doubt made in an application under Article 227, but it is now well-settled that the exercise of jurisdiction under Article 227 does not amount to exercising the power of appeal or revision on questions of fact or of law not affecting jurisdiction. It is to be pointed out that a Division Bench of this Court in the case of Manicklal Dhandhania v. Baidya Nath Basak C.R. No. 2393 of 1969 took the view that an application under Article 227 of the Constitution of India cannot be regarded as or deemed to be a continuation of the application for ejectment of a thika tenant and the same view was also taken by another Division Bench of the Nagpur High Court in the case of Narayanrao Gangatrao v. Mst R.D. Swami AIR 1953 Nag. 271. A proceeding under Article 227 of the Constitution, it was pointed out in the last cited case, was not in the nature of an appeal and the Court in the exercise of its jurisdiction was required to ascertain if the inferior Tribunal did decide the question in accordance with the law and in doing so whether it was guided by the law in force at the time of its decision It was pointed out that the change which the law underwent after the decision of the appellate authority cannot have any relevance in determining whether the decision of the appellate authority was right or wrong.

In Manicklal Dhandhania''s case C.R. No. 2393 of 1969 the thika tenant moved a Division Bench of this Court under Article 227 of the Constitution after the Thika Controller passed an order for eviction and an appeal by the thika tenant was dismissed by the appellate authority Meanwhile, the Thika Tenancy Act came to be amended by the West Bengal Thika Tenancy (Second Amendment) Act, 1969 and it was sought to be contended before this Court that the amended provisions were applicable to the proceeding before this Court under Article 227 of the Constitution as the relief was no longer available to the landlords on the two grounds on which the application for eviction was filed In negativing the contentions their Lordships pointed out that it was open to the Petitioner to file an application u/s 7A of the Amending Act within the time stipulated therein but such a contention cannot be permitted to be canvassed in an application under Article 227 of the Constitution, which was not a continuation of the proceeding before the inferior Tribunal.

In the instant case, the Petitioner has, applied before the learned Thika Controller under the provisions of Section 7A of the Act, but on the date when the decision was given by the learned Controller or the appellate Tribunal there was only a contract for sale between the opposite parties and their vendor and the Tribunals below on the materials that were available to them, were justified in coming to the conclusion It cannot be contended that the decision of the Tribunal was against the principles of natural justice or an error apparent on the face of the record The Tribunal could not anticipate what the result of the proceeding between the landlord opposite party and their alleged vendor would be or act on that anticipation After the opposite parties obtained the order for eviction in July 1962 nothing that happened after that date, can divest them of the ownership of the property as on the date of the order It is difficult to see how the landlord could lose the fruits of his action on the basis of a contract for sale of the property entered seven years after the date of the order for eviction was passed Since the amended provision does not provide either expressly or by necessary implication that the opposite party will lose the fruits of his action as a result of the subsequent events sought to be introduced, the Tribunals below, in my view, were right in rejecting the application of the Petitioner in the instant case.

Mr. Chakrabarty also feebly sought'' to assail the finding of the appellate Tribunal on the point that part of the structures in question were pucca and drew my attention to certain portions of the engineer-commissioner''s report, but on this point I do not see any sufficient reason to interfere with the detailed analysis of the learned appellate authority or the concurrent finding of the Tribunal below more particularly as this is an application under Article 227 of the Constitution of India.

9 In that view of the matter both the objections of Mr. Chakrabarty must fail and the Rule is, accordingly, discharged In the circumstances of the case, I make no order as to costs Let the records be sent down as early as possible.