Calcutta High Court (Appellete Side)
Mir Mohammad Ali vs Mrs. Sairunessa on 8 July, 2008
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Partha Sakha Datta
F.A. No. 431- 432 of 1978
Mir Mohammad Ali
Versus
Mrs. Sairunessa
For the Appellant/Petitioner: Mr Jiban Ratan Chatterjee,
Mr Wasim Ahmed.
For the Respondent/Opposite Party: Mr S.P. Roychowdhury,
Mr Debasis Roy.
Heard on: 03.07.2008.
Judgment on: 8th July, 2008.
Bhaskar Bhattacharya, J.:
These two first appeals were heard together as those appeals are preferred against a common judgment dated 28th February, 1978 passed by the learned Judge, 11th Bench, City Civil Court at Calcutta in Ejectment Suit Nos.253 and 254 of 1970 by which those two suits were decreed by passing a decree for eviction in respect of two different tenancies held by the appellants.
Being dissatisfied, these two first appeals have been preferred. There is no dispute that the original defendant was a Bharatiya under the original plaintiff who was admittedly a thika tenant. The original plaintiff filed the aforesaid two suits for eviction of the original defendant on various grounds provided under the West Bengal Premises Tenancy Act.
The suit was contested by the original defendant by filing written statement thereby denying the material allegations made in the plaint.
During the pendency of the suit, the plaintiff came up with an application for amendment of the plaint thereby praying for amendment of the plaint in terms of the decision of a Division Bench of this Court in the case of M/s. Universal Trading Co. vs. Prafulla Kumar Sarkar and another reported in A.I.R. 1977 Calcutta 94 wherein a Division Bench of this Court held that the tenancy of a Bharatiya under a thika tenant was governed by the Transfer of Property Act. The plaintiff, therefore, simply relied upon eviction notice by treating the same as one under Section 106 of the Transfer of Property Act without depending upon the various grounds originally pleaded in the plaint. The said application for amendment was allowed and ultimately, by the judgment and decree impugned herein the learned Trial Judge has decreed both the suits simply on the ground that the service of a notice to quit in terms of Section 106 of the Transfer of Property Act had been proved.
Being dissatisfied, the defendant has preferred the present appeal. During the pendency of these two appeals, the original plaintiff and the defendant died and several applications for substitution were filed. Even at the stage of hearing of these appeals, the appellants came up with an application for recording the death of appellant no.1 (a) and for taking note of the fact that all his heirs are already on record as the appellant nos. 1(b) to 1(f).
Mr Jiban Ratan Chatterjee, the learned senior advocate appearing on behalf of the appellants, has raised a pure question of law in support of these two appeals. According to Mr Chatterjee, in view of Section 19 of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981, all the proceedings for eviction of a Bharatiya by a thika tenant has abated and therefore, the decree passed by the learned Trial Judge has become a nullity in view of the coming into operation of the Act of 1981 during the pendency of these appeals.
In support of such contention, Mr Chatterjee relied upon the decision of the Supreme Court in the case of Narayan Chandra Ghosh & Ors. vs. Kanailal Ghosh & Ors. reported in A.I.R. 2006 S.C. 562.
Mr Roychowdhury, the learned senior advocate appearing on behalf of the respondent, on the other hand, although has not disputed the fact that in view of the aforesaid Supreme Court decision, the decree passed by the learned Trial Judge should be set aside, yet, he contended that in spite of abatement of the proceedings, his client should be given an opportunity of amending the plaint for the purpose of incorporating various grounds under the provision of West Bengal Premises Tenancy Act instead of filing a fresh suit for eviction. Mr Roychowdhury contends that the decision of the Supreme Court in the case of Narayan Chandra Ghosh & Ors. (Supra) does not stand in the way of his clients in seeking amendment of the plaint for the purpose of proceedings with the selfsame suit by proving various grounds referred to in Section 13 of the West Bengal Premises Tenancy Act. Mr Roychowdhury contends that the Apex Court, in the case of B. Banerjee vs. Anita Pan reported in A.I.R. 1975 SC 1146, while upholding the legislation of incorporation of Section 13(3A) of the West Bengal Premises Tenancy Act, 1956 with retrospective effect as valid, having permitted the landlords to amend the plaint by incorporating of the amended pleading in terms of the amended provision of the Act and having held that the suit should be deemed to have been instituted on the date of filing the amended pleadings instead of dismissing the suit, we should also follow the said Rule by permitting his clients to amend the plaint.
Mr Roychowdhury contends that in the case of Narayan Chandra Ghosh & Ors. (Supra), the question whether by way of amendment a suit, which had abated by operation of law, could be revived or not, was not considered.
After hearing the learned counsel for the parties and after going through the materials on record we find that admittedly the appellants are Bharatiya under the respondents who are thika tenants. Such being the position, the provisions contained in Section 19 of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, is clearly attracted to the facts of the present case. The said provisions are quoted below:
"Section 19- Proceedings including appeals and proceedings in execution of orders, etc. to abate.- All proceedings including appeals and all proceedings in execution of orders passed in proceedings including appeals under the Calcutta Thika Tenancy Act, 1949, pending on the 19th day of July, 1978, for the ejectment of thika tenants and Bharatias shall stand abated with effect from the 19th day of July, 1978, as if such proceedings, appeals or execution proceedings had never been made."
(Emphasis supplied by us) In our view, by making specific provision of abatement of all proceedings for eviction of thika tenant and Bharatiya, the Legislature had made its intention clear that there is no scope of revival of those proceedings by way of amendment. As pointed out by the Supreme Court in the case of Narayan Chandra Ghosh & Ors. (Supra), previously the thika tenants were not required to prove any of the grounds as provided in the West Bengal Premises Tenancy Act for eviction of a Bharatiya and service of notice under Section 106 of the Transfer of Property Act was sufficient. But after the coming into operation of 1981 Act, the landlord is required to prove the ground of eviction as provided in the West Bengal Premises Tenancy Act and consequently, the earlier suit including the appeal or execution proceedings arising out of proceeding for eviction of a Bharatiya has stood abated by operation of law. In our view, such proceedings cannot be revived by way of amendment. In the case of B. Banerjee (supra), there was no statutory mandate recording abatement of the suit nor was any command of law that those are to be treated as if such proceedings, appeals or execution proceedings had not been made and in such circumstances, the Supreme Court for doing complete justice between the parties permitted the parties to make amendment of the plaint instead of asking the landlords to institute a fresh suit. In view of specific direction of the statute putting an end of the pending proceedings for eviction including even the execution cases for enforcing such decree, there is no scope of revival of the suit by way of amendment. We, thus, find no merit in this submission of Mr Roychowdhury.
We, therefore, hold that the judgment and decree passed by the learned Trial Judge cannot be supported any further in view of Section 19 of 1981 Act and are liable to be dismissed as a nullity.
We make it clear that we have otherwise not gone into the merit of the case and this order will not stand in the way of the respondents in initiating appropriate proceedings before appropriate forum in accordance with law for eviction of the appellants.
The appeals, thus, are allowed. The judgement and the decree impugned in these appeals are set aside. In the facts and circumstances, there will be, however, no order as to costs.
( Bhaskar Bhattacharya, J. ) I agree.
( Partha Sakha Datta, J. )