Kanai Lal Sur vs Paramnidhi Sadhukhan

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 291 of 1955

Decision Date: 10 September 1957

Coram: P.B. Gajendragadkar, Natwarlal H. Bhagwati, S.K. Das

In the matter titled Kanai Lal Sur versus Paramnidhi Sadhukhan, the Supreme Court of India delivered its judgment on 10 September 1957. The judgment was authored by Justice P. B. Gajendragadkar, who was joined on the bench by Justices Natwarlal H. Bhagwati and S. K. Das. The petitioner in the proceedings was Kanai Lal Sur and the respondent was Paramnidhi Sadhukhan. The Court recorded the date of judgment as 10/09/1957, and the case is reported in the law reports as 1957 AIR 907 and 1958 SCR 360.

The dispute concerned the application of provisions of the Calcutta Thika Tenancy Act, 1949 (West Bengal Act 11 of 1949), specifically section 5(1). The respondent, who was the landlord, had obtained a decree for ejectment against the appellant, who was a thika tenant, and subsequently filed an application for execution of that decree before a civil court. The appellant challenged the civil court’s jurisdiction, alleging that section 5(1) of the 1949 Act required that any execution of a decree against a thika tenant be pursued before the Controller and not before the ordinary civil courts. Section 5(1) of the Act states that a landlord who wishes to eject a thika tenant on the grounds specified in section 3 must apply to the Controller for that purpose. The Court held that the language of section 5(1) did not apply to a situation where the landlord had already obtained a decree for ejectment; consequently, the civil court possessed jurisdiction to entertain the execution application. The judgment further emphasized that statutes enacted for welfare purposes should be given a benevolent construction, yet the words of a statute must first be understood in their plain grammatical sense. Only when the wording admits two plausible constructions does the Court consider adopting the interpretation that best aligns with the policy of the enactment. In support of this approach, the Court referred to the authority of Heydon’s Case (1584) 3 Co. Rep. 8.

The procedural history was set out in detail. The appeal was identified as Civil Appeal No. 291 of 1955, taken by special leave from a judgment and order dated 29 March 1955 of the Calcutta High Court. That High Court decision, in turn, affirmed an appellate order dated 13 April 1954 that had upheld the judgment and order of 29 July 1954 of the Court of the District Judge of 24-Parganas in Miscellaneous Appeal No. 87 of 1954. The district-court judgment arose from an order of the First Additional Court of the Munsif at Sealdah dated 2 February 1954, which had been issued in Miscellaneous Judicial Case No. 96 of 1953. Counsel for the appellant were N. C. Chatterjee and S. N. Mukherjee, while counsel for the respondent were A. V. Viswanatha Sastri and D. N. Mukherjee. The judgment was pronounced on 10 September 1957, and the opinion was delivered by Justice Gajendragadkar.

Justice Gajendragadkar explained that the present appeal raised, by special leave, a concise point of law concerning the interpretation of section 5(1) of the Calcutta Thika Tenancy Act, 1949, as amended by the Calcutta Thika Tenancy (Amendment) Act, 1953 (West Bengal Act VI of 1953). The appellant contended that, under the amended section 5(1), any execution proceedings arising from a decree against him could be entertained solely by the Controller and not by the ordinary civil courts. The Court noted that the appellant was a thika tenant occupying a portion of the premises involved in the earlier ejectment decree, and that the dispute turned on whether the statutory restriction on execution proceedings applied after a decree of ejectment had already been issued. After considering the language of the statute and its purpose, the Court reaffirmed its earlier conclusion that the civil court retained jurisdiction to entertain the execution application, as the statutory provision was not intended to bar execution proceedings once a decree had been granted.

No. 28, R. G. Kar Road in Calcutta was the subject of the litigation. In Suit No. 46 of 1948 a decree for ejectment was passed against the appellant and in favour of the respondent on 16 March 1949. The appellant challenged that decree by filing an appeal before the District Court and subsequently a second appeal before the High Court at Calcutta; both appeals were dismissed and the decree for ejectment originally issued by the trial court was confirmed. Thereafter a series of further proceedings transpired between the parties, and the litigation assumed a prolonged and complicated course. Ultimately, on 22 May 1953, the respondent instituted an execution case before the First Additional Court, Sealdah, identified as Title Execution Case No. 34 of 1953, seeking to have possession of the property covered by the decree delivered to him. In response, the appellant instituted a Miscellaneous Judicial Case under section 47 of the Code of Civil Procedure, raising several objections to the decree-holder’s claim for execution; this proceeding was recorded as Miscellaneous Judicial Case No. 96 of 1953. The executing court dismissed the appellant’s case on 2 February 1954. The appellant then appealed this dismissal by filing a miscellaneous appeal before the learned District Judge of 24-Parganas, and subsequently a second miscellaneous appeal before the High Court at Calcutta; both appeals were likewise dismissed. Following those defeats, the appellant sought leave to prefer an appeal under the Letters Patent, an application that was rejected by Justice Renupada Mukherjee, who had heard the second appeal. On 10 May 1955 the appellant filed a petition for special leave to appeal to this Court, and special leave was granted on 18 May 1955. The courts below held that the decree-holder’s application for execution of the decree could be entertained by the civil courts, and consequently an order was issued directing the appellant to vacate the premises before the end of Jaistha 1362 B.S. (15 June 1955), on the threat that execution would proceed according to law if he failed to comply. The appellant contended that the lower courts erred in construing section 5(1) of the Calcutta Thika Tenancy Act, alleging that the civil courts lacked competence to entertain the execution application. Thus the sole question for determination was the proper interpretation of the aforesaid statutory provision. Before addressing that question, the Court considered the legislative history intended to protect thika tenants. Up to 1948 the rights and liabilities of landlords and thika tenants were governed by the Transfer of Property Act. On 26 October 1948 the Calcutta Thika Tenancy Ordinance XI of 1948 was promulgated as a temporary measure, pending the enactment of appropriate legislation, to stay execution of certain decrees and orders of ejectment affecting thika tenants. Section 2 of the Ordinance defined a thika tenant, while section 3 stipulated that no decree or order for ejectment of a thika tenant could be executed during the Ordinance’s operation, except where the decree pertained to non-payment of rent and the tenant deposited the requisite amount in court as required by the proviso. The Ordinance’s purpose was clearly to grant interim relief and protection to thika tenants in Calcutta until the Legislature could pass a suitable Act. Subsequently, Act II of 1949 was enacted on 28 February 1949. Section 2, sub-section (5) of this Act defined a thika tenant, and section 3 enumerated the grounds on which a thika tenant could be ejected. The effect of this provision was to limit ejection to specific circumstances, thereby shaping the statutory framework within which the present dispute arose.

The Ordinance that had been issued for thika tenants in Calcutta defined such a tenant in its second section. The third section of the Ordinance stipulated that no decree or order for ejecting a thika tenant could be executed while the Ordinance remained in force. However, this protection did not extend to decrees or orders for ejectment that were based on non-payment of rent, unless the tenant deposited with the court the amount specified in the decree or order, as required by the proviso. The clear purpose of the Ordinance was to afford thika tenants in Calcutta a measure of protection and to provide them with interim relief by staying the execution of certain decrees and orders, as mentioned in section three, until the Legislature could enact a permanent statute on the subject. Subsequently, the legislature enacted Act II of 1949 on February 28, 1949. In that Act, the second section, sub-section (5) offered a definition of a thika tenant. The third section set out the six specific grounds on which a thika tenant could be lawfully ejected. Consequently, a decree for ejectment could be passed against a thika tenant only when one or more of those six grounds were proved. In effect, any grounds that a landlord might have invoked under the Transfer of Property Act for ejecting a tenant became inapplicable to thika tenants because of the provisions of section 3 of the 1949 Act. Section 5, sub-section (1) of the same Act provided the following rule: “Notwithstanding anything contained in any other law for the time being in force, a landlord wishing to eject a thika tenant on one or more of the grounds specified in section 3 shall apply in the prescribed manner to the Controller for an order in that behalf and, on receipt of such application, the Controller shall, after giving the thika tenant a notice to show cause within thirty days from the date of service of the notice why the application shall not be allowed and after making an inquiry in the prescribed manner either allow the application or reject it after recording the reasons for making such order, and, if he allows the application, shall make an order directing the thika tenant to vacate the holding and, subject to the provisions of section 10, to put the landlord in possession thereof.” This provision obliges a landlord who wishes to remove a thika tenant on any of the grounds listed in section 3 to submit an application, in the manner prescribed, to the Controller. It also delineates the procedural steps that the Controller must follow: issuing a thirty-day notice to the tenant to show cause, conducting an inquiry as prescribed, and then either granting or refusing the application with reasons recorded. If the application is granted, the Controller must order the tenant to vacate the premises and, unless section 10 provides otherwise, restore possession to the landlord. Two additional sections of the Act are relevant to this framework. Section 28 addresses situations where decrees or orders for the recovery of possession of a holding from a thika tenant were passed before the Act came into force. It provides that if the decree-holder has not obtained possession through execution of such decrees or orders, the court may examine whether the decree or order conforms with any provision of the Act other than sub-section (1) of section 5 or section 27. The court is thereby empowered to rescind or vary the decree or order to give effect to the Act’s provisions, after which the varied decree must be sent to the Controller for execution as if it were originally made under the Act. Having dealt with pre-Act decrees and orders for ejectment, section 29 then governs pending ejectment proceedings between landlords and thika tenants, mandating that all such pending proceedings be transferred to the Controller.

The Court noted that, from the date when the Act commenced, its provisions stipulate that if a decree-holder has not actually taken possession in the execution of a decree or order, the court may examine whether that decree or order conforms to any provision of the Act, except for subsection (1) of section 5 or section 27. Upon such examination, the court is empowered to rescind or vary the decree or order so as to give effect to the relevant provisions of the Act. Any decree or order that is thereby varied must be forwarded to the Controller for execution as if it were originally made under, and in accordance with, the Act. Having addressed the treatment of decrees and orders for ejectment against thika tenants that were issued before the Act came into force, section 29 proceeds to govern pending ejectment proceedings between landlords and thika tenants. That section provides that all such pending proceedings shall be transferred to the Controller, who shall then handle them in accordance with the Act as if the Act had been operative on the date the suit or proceeding was instituted. The proviso to section 29 expressly exempts the application of section 4 of the Act to those transferred proceedings, for reasons that are plainly evident. The Court further observed that the definition of the expression “thika tenant” contained in the Act gave rise to difficulties, because certain tenants in Calcutta, who were in substance thika tenants, failed to obtain the protection of the Act due to particular wording in that definition. In order to extend protection to the entire class of thika tenants in Calcutta, West Bengal Ordinance No XV of 1952 was promulgated on 21 October 1952. Accordingly, section 2 of that Ordinance amended section 2, subsection (5) of the Calcutta Thika Tenancy Act II of 1949, representing one significant change introduced by the Ordinance. The other important amendment introduced by the Ordinance is found in section 5. Section 5, subsection (1) provides that all cases pending before a court or the Controller on the date of the Ordinance’s commencement shall be governed by the provisions of Act II of 1949, as amended by the Ordinance. Subsection (2) of section 5 then deals with cases where decrees or orders for recovery of possession were passed at any time between the commencement of the Act and the enactment of the Ordinance. The present appeal concerns a decree that falls within the scope of subsection (2) of section 5 of the Ordinance. In respect of such decrees, subsection (2) provides that the judgment-debtor may, within three months of the Ordinance’s commencement, apply to the court or the Controller, as appropriate, and invite a decision on the question of his status as a thika tenant.

In this case, the Court explained that the judgment-debtor could request that his status as a thika tenant be examined according to the amended definition of the expression “thika tenant”. The provision required that the court or the Controller determine whether the judgment-debtor qualified as a thika tenant under the new definition. If the determination was favorable to the judgment-debtor, the Court held that the original decree or order would have to be set aside, the related execution proceedings would be annulled, and the matter would be returned to the appropriate court or Controller for further disposal in accordance with the law. The Court further noted that subsection (3) of section 5 authorised the court or the Controller to stay any execution proceedings that were pending while an application under subsection (2) was being considered. Consequently, the effect of subsection (2) of section 5 was that a judgment-debtor, for decrees issued during the period specified, was given a right to challenge the validity of those decrees on the ground that he was a thika tenant under the amended definition. This right could be exercised only by filing an appropriate application within the prescribed period of three months. The Court observed that where no such application was filed within the three-month window, the decree for ejectment would be executed in the normal manner under ordinary law.

The Court also described the legislative sequence that followed the Ordinance. The Calcutta Thika Tenancy (Amendment) Act 1953 came into force immediately upon the commencement of the Calcutta Thika Tenancy (Amendment) Ordinance 1952, at which point the Ordinance ceased to operate. Under the proviso to section 1, subsection (2) of the 1953 Act, the provisions of the Calcutta Thika Tenancy Act II of 1949, as amended by the 1953 Act, were deemed to apply continuously to all suits, appeals and proceedings pending before any court, before the Controller, or before any person deciding an appeal under section 27 of the Act on the date the 1952 Ordinance commenced. The Court noted that this proviso was subject to the provisions of section 9 of the 1953 Act, which would be considered later. Section 2 of the 1953 Act incorporated the amendment to the definition of “thika tenancy” that had been introduced by the 1952 Ordinance. Section 4 of the amending Act revised section 5, subsection (1) of the original Act by deleting the words “but subject to the provisions of section 28”. By section 8 of the 1953 Act, sections 28 and 29 of the original 1949 Act were omitted, and by section 9 it was stipulated that any proceedings begun under subsection (2) of section 5 of the 1952 Ordinance would, after the Ordinance ceased to operate, continue as if subsections (2), (3) and (4) of that section and the accompanying explanations remained in force. The Court concluded that, despite the cessation of the Ordinance, its remedial provisions continued to be available to judgment-debtors.

Even though the Ordinance had ceased to operate, the Court observed that the remedy provided by section 5, sub-section (2) of that Ordinance remained available to judgment-debtors, and any applications they made to obtain the protection of that provision were to be dealt with as if the substantive provisions of the Ordinance were still in force. The Court noted that section 9 of the amending Act had not been incorporated into the original Act II of 1949; however, it was agreed that this omission did not affect the outcome. Counsel for the appellant, Mr N. C. Chatterjee, argued that the purpose of the relevant Thika Tenancy Acts and Ordinances was unmistakably a welfare objective, and therefore their operative provisions should receive a benevolent interpretation by the courts. He maintained that if the scheme of the legislation and its underlying purpose were to give full protection to thika tenants, the judiciary should be reluctant to conclude that any particular class of thika tenants fell outside the benefit of the Act. In support of this position, Mr Chatterjee relied heavily on the observations of the Barons of the Exchequer in Heydon’s case, which have been repeatedly cited with approval in cases involving welfare statutes and have attained the status of a classic authority whose validity cannot be questioned. Nonetheless, the Court cautioned that when applying those observations to any statutory provision, the primary rule of construction is that the legislature’s intent must be discerned from the wording it itself employed. If the words used are capable of only one meaning, the courts may not adopt a hypothetical construction merely because it appears more consistent with the alleged object or policy of the legislation. The wording in the material provisions must be given its plain grammatical meaning, and only when those words are capable of two meanings does a question arise as to whether the interpretation should be guided by the policy or purpose of the Act. In such cases, where one construction would likely defeat or impair the policy of the Act and the other would further its achievement, the courts should prefer the construction that furthers the policy. It is only in those circumstances that it becomes relevant to consider the mischief and defect that the Act seeks to remedy. Finally, the Court noted that Mr Chatterjee himself conceded that it would not be justified to place an undue strain on the language of the section in order to force a construction favorable to thika tenants.

In light of the legal position previously outlined, the Court examined section 5, subsection (1) of the West Bengal Act II of 1949 as amended by the West Bengal Act VI of 1953. Under the original provisions of sections 5 and 28 of the 1949 Act, the situation was clear. A landlord could obtain an order for ejectment only if his claim was justified on one or more of the grounds enumerated in section 3 of the Act. After the Act came into force, a landlord who wished to enforce such a claim had to make an application for ejectment before the Controller in the manner prescribed by section 5. The operation of section 5, subsection (1) was, however, subject to the constraints imposed by section 28. Section 28 dealt with decrees or orders that had already been passed, whereas section 29 dealt with suits and proceedings that were pending at the commencement of the Act. The appellant contended that the combined effect of sections 5, 28 and 29 was to subject every landlord’s claim for ejectment of a thika tenant to a scrutiny based on the provisions of section 3 and other relevant sections of the Act, irrespective of whether the claim had merged into a decree or was still pending when the Act became operative. The appellant further argued that this position was not altered by the amendments introduced by Act VI of 1953.

The Court could not accept that argument. Section 3 expressly refers to a claim for ejectment that is made by a landlord in a proceeding that he himself has instituted. It is difficult to perceive how section 3 could be invoked against a landlord who has already obtained a decree for ejectment of his thika tenant. When a decree-holder seeks possession of his property in execution of a decree, he does not obtain possession on any of the grounds mentioned in section 3; rather, he relies on the decree issued by a competent court and seeks its execution. Accordingly, the proceedings contemplated by section 5, subsection (1) cannot be said to include such execution proceedings. Section 5, subsection (1) deals with cases in which a landlord initiates original proceedings to eject a thika tenant on one or more of the grounds specified in section 3. This description does not apply to a landlord who already holds a decree for ejectment in his favour. Consequently, the Court concluded that landlords who have obtained decrees of ejectment against their thika tenants cannot be required to make an application under the provisions of section 5, subsection (1) of the Act.

In this case the Court observed that a thika tenant who is subject to a decree for ejectment cannot be compelled to file an application under section 5, sub-section (1) of the Act. That point represents one element of the issue. The remaining provisions of the same sub-section also lead to the same conclusion. When a landlord makes an application for ejectment pursuant to section 5, sub-section (1), the Act requires that a notice be issued to the thika tenant and that an inquiry be conducted in accordance with the provisions of section 3. Only if the Controller is satisfied that the landlord has proved one or more of the grounds enumerated in section 3 will the Controller issue an order for ejectment; that order is then followed by a direction placing the landlord in possession of the premises. Accordingly, section 5, sub-section (1) creates a self-contained procedure for dealing with landlord applications for ejectment against a thika tenant before the Controller. Counsel for the landlord, however, argued that the removal of the words “subject to the provisions of section 28” from the original wording of section 5 suggested that the Controller’s jurisdiction had been expanded not only to entertain original ejectment applications but also to handle decrees already granted in the landlord’s favour. The Court noted that it was unnecessary to decide whether the deleted wording in the original section 5(1) served any useful purpose or what its precise meaning had been. It further pointed out that sections 28 and 29 had been repealed by the amending Act VI of 1953, making any reference to section 28 in section 5(1) wholly inappropriate.

The Court further held that the deletion of those words does not broaden the Controller’s jurisdiction to reopen disputes between landlords and thika tenants when a decree has already been issued by a court of competent jurisdiction in the landlord’s favour. All the relevant provisions of section 5, sub-section (1) are entirely inapplicable to cases involving such decrees, and the Court could not accept the contention that a decree already passed in favour of a landlord must be presented to the Controller for execution under section 5, sub-section (1). The argument was also raised that it would be unreasonable to deny a particular class of thika tenants the protection of the Act merely because ejectment decrees had been rendered before the Act came into force, and it was emphasized that the original scheme of the Act, as reflected in sections 5, 28 and 29, was intended to protect all thika tenants even where decrees for ejectment had been passed against them. The Court conceded that, under the original Act, section 28 was meant to afford such protection.

The Court explained that the original intent of the legislation was to treat tenants who were judgment-debtors and to require that any decrees issued against thika tenants be reviewed by the courts that had originally passed those decrees, applying the provisions of the Thika Tenancy Act. Subsequently, however, the legislature appeared to decide that such protection should be limited to those judgment-debtors specifically as contemplated by section 5, sub-section (2) of the amending Ordinance of 1952. Under that provision, judgment-debtors were given a limited right to apply for the setting aside of the decrees issued against them, provided that the application was made within three months of the commencement of the Ordinance. Even after the Ordinance ceased to operate, the applications that were filed had to be dealt with in accordance with the law.

The Court noted that the decree under consideration in the present appeal fell within the scope of section 5, sub-section (2) of the 1952 Ordinance. Consequently, if the judgment-debtor failed to make use of the right granted by that provision, he could no longer attempt to remedy that failure by invoking the amended section 5, sub-section (1). The Court observed that it was perhaps unfortunate that, because of the various steps the debtor had taken in several parallel proceedings, he may not have been advised to file a proper application under section 5, sub-section (2) of the Ordinance. Nonetheless, that provision represented the sole protection available to him and to other judgment-debtors of the same class after the 1952 amendment came into force.

The Court further held that it would be unreasonable to claim that this class of thika tenants had received no protection at all. While the breadth of protection now available might be narrower than that originally provided under section 28 of Act II of 1949, the deliberate removal of section 28 signaled the legislature’s intention to revise its policy. Accordingly, a reasonable construction of section 5, sub-section (1) was supported by both the deletion of section 28 and the existence of section 5, sub-section (2) of the 1952 Ordinance together with section 9 of the amending Act VI of 1953. On that basis, the Court held that the Calcutta High Court was correct in rejecting the appellant’s contention that civil courts lacked jurisdiction to entertain the execution petition filed by the respondent against the appellant. Consequently, the appeal was dismissed with costs.