Syamlal Majumdar vs M.L. Dalmia and Co. Ltd.

N.C. Mukherji, J.—These three Rules arise on three applications under Article 227 of the Constitution and are directed against order dated August 21,1975, passed in Misc. App. No. 543 of 1974 by Sri P. Dutta, Sixth Additional District Judge, Alipore, acting as an appellate Authority under the Thika Tenancy Act, setting aside the order dated June 18, 1973, made by Sri P.K. Mitra, fourth Court of the Munsif at Alipore, acting as Thika Controller in Misc. T. Cases Nos. 148 to 150 of 1959.

The facts of the case may briefly be stated as follows:

The Petitioners are thika tenants in respect of small portions of vacant land at premises No. 101 Ashutosh Mukherjee Road, Calcutta. The opposite party by purchase in auction sale of the landlords interest became the landlord of the Petitioners. After purchase the opposite party instituted proceedings u/s 5 of the Thika Tenancy Act, 1949, for ejectment of the Petitioners on the ground of default in payment of rent before the Thika Controller at Alipore. After passing through various phases due to the several amendments of the. Act, the proceeding started in 1959 came up for hearing before Sri P.K. Mitra, Fourth Court of the Munsif at Alipore (Thika Tenancy Controller) and disposed of on June 18, 1973. The learned Controller in view of the order passed by this Court disposed of the case assessing upto date arrears less the amount paid under order of the Court. In assessing arrears of rents the learned Controller allowed interest as provided under the Thika Tenancy Act in Section 23 which provides for interest upto the date of the suit, i.e. starting of the proceeding for ejectment and as such, interest for post-suit arrears was refused. The opposite party being aggrieved by the aforesaid order preferred three appeals u/s 27 of the Act. The learned Additional District Judge allowed the appeals, set aside the order passed by the learned Munsif, He was of the opinion that the opposite party was entitled to get interest on post-suit arrears and remanded the case to the learned Controller for assessing such interest. Being aggrieved by the aforesaid order, the Petitioners have come up before this Court.

Mr. Nripal Chandra Roy Choudhury, learned Advocate appearing on behalf of the Petitioners, in the first place, submits that the order of remand passed by the learned appellate Authority is without jurisdiction since he was not functioning as civil court but as a persona designata and as such, he has not all the powers of a civil court under the CPC and his powers are limited to those conferred by the Act and as the power of remand has not been conferred he acted beyond jurisdiction in passing an order of, remand. In support of his contention he refers to the decisions in Mamata Ghosh and Ors. v. Mrs. Charu Chandra Mandal and Anr. (1956) 60 C.W.N. 1032 and Rai Harendranath Choudhuri v. Sm. Daulatmani Chaudhurani (1957) 62 C.W.N. 143. We agree with the submission made by Mr. Roy Choudhuri that the appellate Authority under the Calcutta Thika Tenancy Act is a persona designata and not a Court within the meaning of the Code as defined in Bengal, Agra and Assam Civil Courts Act and has not got the power of remand. But in this case we find from the order passed by the learned appellate Authority that he disagreed with the learned Controller on point of law, set aside the said order, allowed interest on post-suit arrears and sent the cases back only for assessment of such arrears. Thus, it is seen that it is simply for the matter of calculation that the cases were sent back. As such, we do not think that the order by which the cases were sent back is strictly an order of remand within the meaning of Order 41, Rule 23 of the Code of Civil Procedure.

With regard to the merits Mr. Roy Choudhury submits that the learned appellate Authority overlooked the fact that the proceeding started by the opposite party was one u/s 5 of the Calcutta Thika Tenancy Act for ejectment of the Petitioners on the ground of default in payment of rent. After the amendment ejectment on the ground of default in payment of rent is no longer available to the landlord if the tenant pays all arrears of rent and costs, if any, as determined by the Controller within a particular time fixed by the Controller. Section 23 of the Act provides that--

Any arrear of rent shall bear simple interest at the rate of six and a quarter per centum per annum from the expiry from the time within which the rent of the instalment of rent is payable under the provisions of Section 12 or is to be deposited u/s 17 or Section 18, as the case may be, to the date of payment or of the institution of the suit, whichever date is earlier.

This being the clear provision of Section 23, Mr. Roy Choudhury submits that the Thika Controller was quite right in awarding interest up to the date of the institution of the suit and the appellate Authority was wrong in awarding interest on post-suit arrears. Mr. Roy Choudhury also draws our attention to Section 7A as inserted by Section 8 of of the Calcutta Thika Tenancy (Second Amendment) Act, 1969, which does not say anything about interest. Section 7A(2)(b) provides that

the Controller shall determine the amount which would have been payable by the thika tenant for the period commencing from such date, (the date is one on which order for ejectment was made and the Controller is satisfied that no order for ejectment would have been made against the thika tenant even if the Calcutta Thika Tenancy (Second Amendment) Act, 1969, had been in force) and ending with the date of the order to be made under this sub-section and the Controller may allow to the landlord as his costs of the proceeding arising out of the application under Sub-section (1) of Section 5.

This section does not provide for any interest. Mr. Roy Choudhury also draws our attention to Section 13 of the Calcutta Thika Tenancy (Second Amendment) Act, 1969, which provides that--

The amendments made to the said Act by this Act shall have effect in respect of all applications for ejectment of thika tenants and all appeals from order made on such applications under the provisions of the said Act which are pending at the commencement of this Act.

Mr. Biswajit Ghosh, learned Advocate appearing on behalf of the opposite party, however, contends that Section 23A, Sub-section (2) of the Act provides for damages. The said sub-section reads as follows:

If in any suit instituted for the recovery of arrears of rent, it appears to the Court that the thika tenant has, without reasonable or probable cause, neglected or refused to pay the amount of rent due by him, the Court may award to the landlord in addition to the amount decreed for rent and costs such damages not exceeding twelve and a half per centum on the amount of rent decreed, as he thinks fit.

Provided that interest shall not be decreed when damages are awarded under this section.

This sub-section does not apply in the present cases inasmuch as the present proceedings cannot be said to be suits instituted for the recovery of arrears of rent. It was a proceeding started u/s 5 of the Act for ejectment of the tenant on the ground of default in payment of rent. Again, this sub-section provides nothing for the payment of interest on the post-suit arrears. It simply provides for damages up to twelve and a half per cent on the amount decreed for rent, but in that case it has been further provided that when damages are awarded interest should hot be decreed. On going through the different provisions of the Act, we are of the opinion that the learned appellate Authority was wrong to think that the opposite party is entitled to get interest on the post-suit arrears. In such circumstances, the order passed by the learned appellate Authority cannot be upheld.

In the result, these applications succeed. The orders dated August 21,1975, passed by the learned Addl. District Judge acting as appellate Authority under the Calcutta Thika Tenancy Act is set aside and the orders passed by the learned Thika Controller are confirmed. There will be no order as to costs.

B.C. Ray J.

I agree.