Nalinakhya Bysack vs Shyam Sunder Haldar And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 96 of 1952

Decision Date: 29 January 1953

Coram: Mehr Chand Mahajan, Natwarlal H. Bhagwati, DAS, Sudhi Ranjan

In the matter styled Nalinakhya Bysack versus Shyam Sunder Haldar and Others, the Supreme Court of India delivered a judgment on 29 January 1953. The bench that heard the case comprised Justice Mehr Chand Mahajan, Justice Natwarlal H. Bhagwati and Justice Das, who is also identified as Justice Sudhi Ranjan Das. The report of the decision appears in the 1953 volume of the All India Reporter at page 148 and in the Supreme Court Reports at page 533. The citation also records later references in the Supreme Court’s law reports for the years 1982, 1990, 1991 and 1992. The dispute concerned the interpretation of section 18(1) of the West Bengal Premises Rent Control (Temporary Provisions) Act, Act XVII of 1950, particularly whether the expression “decree for recovery of possession” covered an order for recovery of possession issued under section 43 of the Presidency Small Cause Courts Act, 1882. The Court held that the phrase in section 18(1) did not extend to an order made under the 1882 Act, and consequently a person against whom such an order had been passed could not invoke the relief provided by section 18(1) of the 1950 Act. In reaching this conclusion, the Court overruled the authorities of Rai Bahadur Atulya Dhan Banerjee v. Sudhangsu Bhusan Dutta, Dhanesh Prokash Pal v. Lalit Mohan Ghosh, Mohan Lal Khettry v. Chuni Lal Khettry, Jethmull Sethia v. Aloke Ganguly and Iswari Prosad Goenka v. N. B. Sen, which had previously taken a different view. The judgment emphasized that a court cannot presume a legislative mistake and, even if the language of a statute is defective, the court must not assist the legislature by adding to, amending, or fabricating provisions that are absent. To illustrate this principle, the Court referred to the decisions in Commissioner for Special Purposes of Income Tax v. Pemsel, Crawford v. Spooner and Hansraj Gupta v. Official Liquidator of Dehra Dun Mussourie Electric Tramway Co. Ltd.

The appeal concerned a civil matter, designated as Civil Appeal No. 96 of 1952, and was filed under the civil appellate jurisdiction of the Supreme Court. The appeal challenged a judgment and order dated 9 April 1951 issued by the High Court of Judicature at Calcutta, which had been rendered by Justices Sen and Chunder. That High Court order arose from Civil Rule No. 1038 of 1950 and was based on an order dated 4 July 1960 pronounced by the sixth judge of the Presidency Small Causes Court, Calcutta, in Ejectment Suit No. 6571 of 1949. The appellant was represented by counsel named Arun Kumar Dutta and Shivdas Ghosh, while the respondent was represented by counsel identified as Panchanan Ghose, assisted by S. P. Ghose. The Supreme Court judgment was delivered by Justice Das on 29 January 1953, and the appeal was directed against the earlier judgment and order of the Calcutta High Court, seeking review of the previous findings and their legal effect.

A Bench of the Calcutta High Court passed judgment on 9 April 1961 in Civil Rule No 1038 of 1950. The factual background, as outlined in the appeal, indicated that the respondents occupied three rooms, a kitchen, a privy and a bathroom on the ground floor of premises numbered six, Roy Began Street, Calcutta, as monthly tenants of the appellant. The agreed rent was twenty-five rupees per month, payable according to the Bengali calendar month. On the twenty-ninth day of Baisakh 1356 B.S., the appellant served a notice requiring the respondents to vacate the premises on or before the seventh day of Jaistha 1356 B.S. The respondents did not comply with that notice. Consequently, on 1 June 1949, the appellant instituted eviction proceedings before the Presidency Small Cause Court under Chapter VII of the Presidency Small Cause Courts Act, 1882, alleging that the tenancy had terminated ipso facto because the respondents had failed to pay rent for three consecutive months, pursuant to section 12(3) of the West Bengal Premises Rent Control Act, 1948.

The respondents, on 6 July 1949, deposited two hundred thirty-three rupees, seven annas and zero paise into the Court and, on 8 July 1949, appeared and filed a written statement denying any arrears of rent and denying that the tenancy had been terminated ipso facto. The matter was scheduled for hearing on 27 February 1950, but the respondents failed to appear, and the Court heard the case ex parte, ordering delivery of possession of the premises to the appellant on 3 May 1950. Subsequently, on 31 March 1960, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (Act XVII of 1950) came into force. The respondents then filed, on 29 May 1950, an application under section 18 of that Act seeking to set aside the order for possession. On 5 June 1950, the trial Court issued an order based on the respondents’ terms, requiring payment of all rent arrears up to Jaistha 1357 B.S. with interest at nine percent per annum, together with the costs of the suit, including half of the pleader’s fee, amounting to three hundred ninety-nine rupees, three annas and zero paise, to be paid by the defendants to the plaintiff by 4 July 1950. The Court stayed all further proceedings and execution until further order. The agreed amount was paid, and the order for possession was vacated on 4 July 1950. The order sheet recorded that the parties were present as before, the defendant complied with the learned Court’s order dated 5 June 1950, money was deposited as ordered, and consequently the decree for possession was vacated, allowing the plaintiff’s pleader to withdraw the money from Court. On 1 August 1950, the appellant moved the High Court under section 115 of the Code of Civil Procedure, seeking to set aside the trial Court’s order dated 4 July 1950.

The appellant filed an application under Section 115 of the Code of Civil Procedure seeking to set aside the order of the trial Court dated 4 July 1950. While that 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 30 November 1950. On 9 April 1951 the High Court, following an earlier decision of another Bench of the same Court in Rai Bahadur Atulya Dhan Banerjee v. Sudhangsu Bhusan Dutta(1), dismissed the appellant’s application. Subsequently, on 30 November 1951 the High Court granted the appellant leave to appeal to this Court and issued a certificate under article 133(1)(c) of the Constitution of India.

The proceedings from which the present appeal arises were instituted under Chapter VII of the Presidency Small Cause Courts Act, 1882. Chapter VII, titled “Recovery of Possession of Immovable Property,” authorises a landlord, in certain circumstances, to apply to the Small Cause Court for a summons against the occupant, calling upon the occupant to show cause on a nominated day why he should not be compelled to deliver up the property. Section 43 of that Act provides that if the occupant fails to appear at the appointed time or fails to show cause, and if the Court is satisfied that the landlord is entitled to apply under Section 41, the Court may issue an order to a bailiff directing the bailiff to give possession of the property to the landlord on a date that the Court considers appropriate. Although the rules framed under the Act require that an application under Section 41 be initiated by a plaint, it is not contested that such a proceeding is not a suit and that an order for delivery of possession does not strictly amount to a decree for recovery of possession, as observed in Rai Meherbai Sorabji Master v. Pherozshaw Sorabji Gazdar(1). Moreover, Section 1.9 of the Act peremptorily states, inter alia, that the Small Cause Court shall have no jurisdiction in suits for recovery of immovable property.

The sole 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 its marginal note read as follows: “18. (1). Where any decree for recovery of possession of any premises has been made, rescinded or varied on the ground of default in payment of arrears of rent under the provisions of the West Bengal Premises Rent Control (Temporary 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, during 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 subsection till the application has been dismissed under subsection (4).”

In the provision under discussion, the Court noted that a decree for ejectment could be vacated against a tenant and, during the period prescribed for such vacatur, no court was permitted to issue any order for delivery of possession. Moreover, the provision stipulated that if the tenant filed an application under the relevant sub-section, no order for possession could be made until that application was finally dismissed pursuant to sub-section (4). The Court then referred to the decision in Rai Bahadur Atulya Dhan Banerjee v. Sudhangsu Bhusan Dutta, where it was held that the phrase “decree for recovery of possession” appearing in subsection (1) of section 18 must be interpreted to include an order for recovery of possession issued under Chapter VII of the Presidency Small Cause Courts Act, 1882. That judgment, reported in (1) (1927) I.L.R. 51 BOM 385 and (2) (1951) 55 C.W.N. 343, was subsequently followed without further commentary by several benches of the same High Court in the cases of 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 matter. The issue was later re-examined by a larger Bench of the Calcutta High Court in Iswari Prosad Goenka v. N. B. Sen (4), where the learned judges affirmed the earlier ruling in Rai Bahadur Atulya Dhan Banerjee v. Sudhangsu Bhusan Dutta (5). After hearing the arguments presented and giving careful consideration to the authorities cited, the Court expressed that it could not accept the conclusion reached in those earlier decisions as correct.

The Court further observed that, aside from the question of whether a marginal note may be consulted in construing a statutory provision, the authorities make it clear that a marginal note cannot govern the meaning of the operative text of a section when the language of the section is clear and unambiguous. If the statutory language is clear, any inconsistency must be attributed to an accidental slip in the marginal note rather than to the body of the section. To illustrate this principle, the Court examined section 11 of the West Bengal Premises Rent Control Act, 1948, which expressly provides that, notwithstanding anything contained in specified Acts, “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, however, reads: “No order for ejectment ordinarily to be made if rent paid at allowable rate.” The Court pointed out that the words “or decree” are absent from the marginal note, indicating that the note was not carefully prepared and therefore does not reliably guide the interpretation of the section. Consequently, the Court affirmed that the wording in the operative part of the statute must be given effect, and the marginal note should not be allowed to introduce ambiguity into the provision.

In this case, the Court examined the meaning of section 18(1) of the 1950 Act and held that, where the language of the provision was clear and unambiguous, the marginal note could not be allowed to create any ambiguity. Section 18(1), as it existed on 4 July 1950—the date on which the order for possession dated 27 February 1950 was set aside—accorded relief to a tenant against whom a decree for recovery of possession had been issued on the ground of default in the payment of rent arrears under the 1948 Act, provided that the tenant had not actually been evicted. The relief therefore applied only to a decree for possession that “has been made” under the 1948 Act. The wording of section 18(1) and its explicit reference to the 1948 Act required the Court to return to the earlier statute.

The Court noted that section II of the 1948 Act referred to “order or decree for the recovery of possession of any premises.” The non-obstant clause in section 11 of that Act mentioned the Presidency Small Cause Courts Act 1882, indicating that an order for recovery of possession meant an order passed under section 43 of that Act on an application made under section 41. Section 11 used both the terms “order” and “decree” for recovery of possession, showing that the two words denoted distinct concepts. This distinction was reinforced by the use of the separate terms “suit” and “proceeding” in section 12 of the 1948 Act, confirming that “suit” differed from “proceeding” and, similarly, “order” differed from “decree.” Consequently, the Court concluded that the 1948 Act could not be interpreted so as to give the word “decree” an extended meaning that would include “order,” because the statute separately provided for each term.

Applying this construction, the Court held that section 18(1) of Act XVII of 1950 did not refer to “decree” in a generic sense but specifically to “any decree for recovery of possession of any premises on the ground of default in payment of arrears of rent” under the 1948 Act. Turning to the 1948 Act, the Court observed that a decree for possession on the ground of non-payment of rent was treated differently from an order for possession on the same ground. A decree for recovery of possession, within the meaning of the 1948 Act, could only arise from a suit for possession and could not encompass an order issued under section 43 of the Presidency Small Cause Courts Act on an application under section 41. In summary, the Court affirmed that section 18(1) of Act XVII of 1950 expressly invoked the 1948 Act, and that within that framework the word “decree” could not be read to include an “order” for possession, because the two terms were distinctly defined and separately dealt with in the earlier statute.

In this case, the Court observed that section 18(1) of Act XVII of 1950 expressly brings the provisions of the 1948 Act into consideration, and that the 1948 Act treats the terms “decree” and “order” as distinct concepts. Consequently, there was no justification for expanding the meaning of “decree” to include an “order” within the context of section 18(1). The Court further noted that the relevance of the meaning of “decree” under the 1948 Act is immaterial when interpreting Act XVII of 1950, because the Court’s task is to determine the meaning of the word as it is employed in section 18(1) of the latter Act. Having already established that the language of section 18(1) attracts the corresponding provisions of the 1948 Act, the Court held that the term “decree” appearing in that provision must be understood in the light of the 1948 Act. Under that interpretation, a “decree” cannot be read to cover an “order” for possession issued under Chapter VII of the Presidency Small Cause Courts Act. The Court then turned to the remaining question of what the word “decree” actually signifies in section 18(1). It pointed out that neither the 1948 Act, nor Act XVII of 1950, nor the Bengal General Clauses Act offer a definition of the term. However, the Code of Civil Procedure, 1908, does define “decree” as the formal expression of an adjudication that determines the parties’ rights with respect to the subject matter of the suit, a suit being a civil proceeding initiated by a plaint, as stipulated in section 26 and Order IV, Rule 1 of the Code. The Court emphasized that this is the ordinary and accepted meaning of “decree.” Applying this definition to the term used in section 18(1) leads to the conclusion that it cannot encompass an order for possession passed under section 43 of the Presidency Small Cause Courts Act on an application made under section 41 of that Act.

The Court also recorded the argument advanced by counsel that the word “decree” in section 18(1) of Act XVII of 1950 should not be given a strict construction. Counsel argued that although “suit” ordinarily refers to a proceeding commenced by a plaint, the term can be employed in a broader sense to include proceedings not started by a plaint, and therefore an adjudication in such broader proceedings could also be described as a “decree.” To support this view, counsel referred to the explanation to sub-section (1) of section 12 of Act XVII of 1950, which expressly states that, in the proviso to that sub-section, the term “suit” does not include proceedings under Chapter VII of the Presidency Small Cause Courts Act, 1882. Counsel contended that this explanation, by implication, allows the word “suit” in other sections of Act XVII of 1950 to be understood as encompassing a proceeding under Chapter VII, and that consequently an order made in such a proceeding could be characterised as an adjudication in a suit and therefore as a decree. The Court noted this line of reasoning but indicated that the inference drawn from the explanation to section 12(1) required careful examination before it could affect the construction of “decree” in section 18(1), where the term “suit” does not appear at all.

In the present case, the Court observed that the argument attempting to extend the meaning of the word “decree” in sub-section (1) of section 18 of Act XVII of 1960 was based on an inference drawn from the explanation to section 12(1) of Act XVII of 1950. The Court noted that section 18 of the 1960 Act uses the term “decree” without any reference to the word “suit,” and therefore the inference that a decree could be described as an adjudication in a suit was not directly applicable. Even assuming that such an inference could be properly drawn, the Court held that it would have no bearing on the construction of “decree” in the 1960 provision because the term “suit” does not appear in that provision at all.

The Court then examined the basis of the argument that relied on the explanation to section 12(1) of the 1950 Act. It found that a careful scrutiny of the provisions of that Act showed that the word “suit” was never intended to include any proceeding under Chapter VII of the Presidency Small Cause Courts Act. Section 12(1) expressly prohibited the making of any order or decree for the recovery of possession by any Court, notwithstanding any contrary provision in any other statute. The Court explained that this sub-section, standing alone, meant that no order for possession could be passed by the Presidency Small Cause Court, and no decree for possession could be made by any Court in any suit, even in spite of the Transfer of Property Act, the Contract Act, or the Code of Civil Procedure, 1908.

The Court further noted that the proviso to sub-section (1) of section 12 saved “any suit for decree for such recovery of possession” in limited circumstances involving certain tenants. However, the Court clarified that this proviso did not extend to proceedings under Chapter VII of the Presidency Small Cause Courts Act. The explanation attached to the sub-section, which stated that the word “suit” in the proviso did not include a proceeding under Chapter VII, was described by the Court as a precautionary insertion intended to remove any doubt about the scope of the proviso.

Turning to section 16 of the 1950 Act, the Court recounted that this section provided, notwithstanding anything contained in any other law, that a suit by a landlord against a tenant for recovery of possession of premises covered by the Act must be instituted in the courts specified in Schedule B, and that no other court could entertain or try such a suit. According to Schedule B, where the premises were situated wholly within the ordinary original civil jurisdiction of the Calcutta High Court and the monthly rent did not exceed Rs 500, the Chief Judge of the Calcutta Court of Small Causes was authorized to entertain and try the suit as a Court of the District Judge, with the power to transfer the suit to any other judge of that court who would try it as a Court of the Subordinate Judge.

The Court concluded that, read together, sections 12 and 16 together with Schedule B effectively suspended the operation of Chapter VII of the Presidency Small Cause Courts Act in Calcutta. By conferring a special jurisdiction on the Chief Judge of the Calcutta Small Cause Court to entertain and try landlord-tenant possession suits within the specified rent limit, the 1950 Act removed the ability of the Small Cause Court to pass an order for possession under Chapter VII, limiting its authority to pass a decree for possession only in the suits saved by the proviso to sub-section (1) of section 12.

In this case, the Court observed that no litigant would commence proceedings if the court could not grant any order. The effect of sections 12 and 16, read together with Schedule B, was therefore to give a new jurisdiction to the Chief Judge of the Calcutta Small Cause Court to entertain and try suits filed by landlords against tenants for recovery of possession of premises situated within the ordinary original civil jurisdiction of the Calcutta High Court, where the monthly rent did not exceed Rs 600. As a result, when Act XVII of 1950 came into force, the Calcutta Small Cause Court lost the power to pass a possession order under Chapter VII of the Presidency Small Cause Courts Act. Under that Act, the Small Cause Court could now pass only a decree for possession in a suit that was saved by the proviso to sub-section (1) of section 12, and such a decree fell within the special jurisdiction conferred on that Court by section 16 of the same Act. Accordingly, the word “suit” in any of the sections of Act XVII of 1950 could not be said to include a proceeding under Chapter VII of the Presidency Small Cause Courts Act, and the reasoning that sought to give an expanded meaning to “suit” and, by inference, to “decree” in section 18(1) could not be sustained.

The Court then considered the argument that a strict construction of the term “decree” would lead to startling results: poor tenants against whom possession orders had been made under the 1948 Act would be denied the benefit of section 18(1), while wealthier tenants paying rents above Rs 500 per month would obtain relief, apparently frustrating the Legislature’s intention. That argument rested on the assumption that the Legislature intended to provide relief to all tenants against whom an order or decree for possession had been made. The language of section 18(1) plainly showed that the legislative intention was to give relief only to certain tenants in certain circumstances. First, relief was granted only with respect to a decree for possession made on the specific ground mentioned in the subsection, and not for a decree made on any other ground. Second, relief was available only when the possession of the premises, for which a decree for possession had been made, had not yet been surrendered by the tenant. Consequently, tenants against whom a decree for possession was made on a ground other than the one specified, as well as tenants who, despite a decree on the specified ground, had voluntarily or otherwise delivered possession of the premises, received no relief under section 18(1). An order for possession was made by the Presidency Small Cause Court under section 43, on a summary application under section 41, and that order directed the bailiff of the Court to deliver possession to the applicant.

The order directing the Court’s bailiff to deliver possession to the applicant was issued under section 37 of the Presidency Small Cause Courts Act. That provision makes the order final and conclusive, and section 38 of the same Act provides that there is no right of appeal or a new trial against it. Because the order is not subject to appeal, it can be obtained and executed much more quickly than a decree for possession that is granted after a full suit. A decree for possession obtained in a suit, together with the subsequent order for execution, remains appealable, which inevitably lengthens the time required to enforce it. The legislature apparently presumed that orders for possession made under Chapter VII of the Presidency Small Cause Courts Act, concerning premises located within the limited original civil jurisdiction of the Calcutta High Court and still occupied by tenants at the commencement of Act XVII of 1950, would be relatively few. In contrast, the legislature expected many more cases involving decrees for possession relating to premises situated in a far larger area that remained in the tenants’ possession, and therefore chose not to create a special provision for the comparatively few small-area cases.

The court emphasized that, following the principle stated by Lord Halsbury in Commissioner for Special Purposes of Income Tax v. Pemsel (1), a court may not presume that the legislature has erred. The proper approach is to accept that the legislature intended the words it used. Even if the legislative language contains some defect, the court cannot, as noted in Crawford v. Spooner (1), assist the legislature by correcting its faulty phrasing, nor may it add to, amend, or by construction fill gaps left in the act. When a casus omissus occurs, the remedy lies with bodies other than the courts, as observed by Lord Russell of Killowen in Hansraj Gupta v. Official Liquidator of Dehra Dun-Mussoorie Electric Tramway Co., Ltd. (2). The court held that the term “decree” must retain its ordinary accepted meaning and, despite respect for the earlier decisions cited by the respondent, those decisions were not correctly decided. The argument referencing section 6 of the West Bengal Act LXII of 1950 was noted; however, that provision concerns orders or decrees made between the commencement of Act XVII of 1950 and Act LXII of 1950, namely between 30 March 1950 and 30 November 1950, and therefore it cannot be applied to the order for possession in the present case.

The order that had been issued in this case on the 27th of February, 1950, formed the basis of the Court's subsequent analysis. Considering the reasons that had been articulated earlier in the judgment, the Court concluded that the appeal ought to be allowed. Accordingly, the Court set aside the order that had been made by the High Court in the proceedings. The Court also dismissed the respondents’ application that was filed under section 18 (1) of Act XVII of 1950. No order as to costs was made, and each party was directed to bear its own costs throughout the litigation. Thus, the appeal was officially allowed by the Court, and the relevant agents for the parties were recorded. The agent representing the appellant was identified as S. C. Bannerji, while the agent for the respondent was recorded as Sukumar Ghose. In accordance with these determinations, the Court issued its final order reflecting the dismissal of the application and the setting aside of the previous decree. The Court emphasized that each litigant would be responsible for its own legal expenses, thereby preventing any imposition of costs upon the opposing side. The judgment also cited the authorities (1) 6 Moo. P.C. I; 4 M.I.A. 179 and (2) (1933) L.R. 60 I.A. I3; A.I.R. 1933 P.C 63.