Calcutta High Court
Advertising Consultant (I) Ltd. vs Mamraj Saraf And Ors. on 6 May, 1987
Equivalent citations: (1987)0CALLT321(HC), 92CWN13
JUDGMENT Chittatosh Mookerjee, C.J.
1. The petitioner company is admittedly a tenant under the opposite parties in respect of a portion of premises No. 63, Rafi Ahmed Kidwai Road, Calcutta, at a rent of Rs. 21 thousand per month payable separately to the opposite parties in the manner set out in paragraph 1 of the Revisional application. The opposite parties who claimed to be entitled to a sum of Rs. 63,000 as arrear of rent for the months of November and December, 1986 and January, 1987 applied under Section 53 of the Presidency Small Cause Courts Act, 1882 for issue of a distress warrant against the petitioner. Thereupon, the Registrar, Presidency Small Causes Court had issued a Distress warrant under Section 54 of the Presidency Small Cause Courts Act, 1882. In pursuance of the said warrant a Bailiff of the Court had seized certain movable properties found in the premises occupied by the petitioner company. The petitioner company has made an application under Section 60 of the Presidency Small Causes Courts Act, 1882 for discharging the said warrant and release the distrained articles.
2. The learned Judge, 2nd Bench, Small Causes Court, Calcutta, by his order dated 28th March, 1987, has rejected the preliminary objection raised by the petitioner that the amount involved being Rs. 67,415 including costs, the court of small Causes, Calcutta, had no jurisdiction to issue any distress warrant against the petitioner. Being aggrieved, thereby, the petitioner company filed this revisional application which has been heard with notice to the opposite parties.
3. We uphold the decision of the court below that it had jurisdiction to issue the distress warrant in respect of a sum of Rs. 63,000 and costs. The court of Small Causes, Calcutta which has been established under the Presidency Small Cause Court Act, 1882 is undoubtedly a Court of limited jurisdiction. Sir Asutosh Mookerjee, A. C. J. (as his lordship then was) in the case of Hriday Nath Roy and Ors. v. Ram Chandra Barna Sarma and Ors. repeated in 24 C. W. N. 723 at page 732, interpreted the expression 'jurisdiction' as the power of a Court to hear and determine a cause, to adjudicate or exercise any judicial power in relation to it; in other words, by jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The authority of the Court of Small causes has been limited in respect of:
4. (a) territorial area, (b) pecuniary value and (c) subject matter. Under the Presidency Small Cause Courts Act, 1882 the Court of Small Causes has jurisdiction in respect of suits as provided in Chapter IV. The procedure in suits have been prescribed in Chapter V of the said Act, The Court of Small Causes, under Chapter VII, has been given power to order recovery of possession of immovable property from persons occupying property without leave. The said court has further power under Chapter VIII to issue distress warrant.
5. It is significant that inrespect of each of three matters, namely, suits, proceedings for recovery of possession and issue of distress, limits of the court's jurisdiction have been separately provided. The territorial jurisdiction in relation to all the three matters is identical, i. e., the limits for the time being of the original ordinary civil jurisdiction of the High Court. Still local limits in respect of suits have been provided for in Section 17 of the said Act. Section 41 inter alia mentions the territorial jurisdiction of the court in the matter of recovery of possession of immovable property. It is significant that under Section 18 of the presidency Small Cause Courts Act the said court cannot entertain a regular suit for recovery of possession of any immovable property. But the court under Section 41 of the said Act has been given jurisdiction to order recovery of possession of immovable property subject to the pecuniary limits mentioned in Chapter VII of the Act.
6. The pecuniary jurisdiction of the court of Small Causes in respect of suits has been limited by Section 17 of the Presidency Small Cause Courts Act. Section 41 of the said Act mentions the pecuniary limits of the said Court's jurisdiction to order recovery of possession of immovable property. But it does not mention in Chapter VIII of the said Act the maximum amount which can be recovered by distress from a tenant of the premises situated within the original jurisdiction of this court. Having regard to the scheme of Chapter VIII it would not be correct to apply Sections 17 and 18 for determining whether a distress warrant for one year's rent which exceeds Rs. 10000 can be lawfully issued by the Court of Small causes. Section 18 confers jurisdiction upon the Court of Small Causes, inter alia, to try suits mentioned therein. Section 19 sets out the classes of suits over which Small Causes Court should have no jurisdiction. Neither Section 18 nor Section 19 deal with or refer to proceedings either under Chapter VII or under Chapter VIII of the said Act. The limits of the jurisdiction of the Small Causes Court, Calcutta, both as regards the local extent and the subject matter have been set out in Section 50 of the Act. Section 50 of the Act has provided that Chapter VIII extends to every place within the local limits of the original ordinary civil Jurisdiction of the High Court and excludes from the application.
a) any rent due to government.
b) any rent which has been due for more than 12 months before the application mentioned in Section 53 of the, said Act.
Section 53 of the said Act lays down :--
"Any person claiming to be entitled to arrears "of rent of any house or premises to which this Chapter extends or his duly constituted attorney, may apply to any Judge of the Small. Causes Court or to the Registrar of the Small Cause Court for such warrant".
It is significant that neither Section 50 nor Section 53, of the Presidency Small Cause Courts Act, 1882 lay down any limitation as regards the maximum amount of arrears of rent for recovery of which application for distress warrant may be made As already stated, limitations are. only as regards the local extent and the maximum period of the arrear of rent which could be recovered by any person other than the Government. Thus, the landlords' under Section 53 of the Act are entitled to recover from their tenants of houses and premises situated within the territorial jurisdiction of the Court of Small Causes, Calcutta, arrears of rent which are due and payable for not exceeding 12 months from the date of the filing of the application for issue of a distress warrant. Sections 50 and 53 read together only restrict the period of arrear rent which is recoverable by distress proceeding. But these provisions do not confine the power of the judge or the Registrar of the Court of Small Causes Calcutta to issue distress upto any maximum amount.
7. The proceedings under Chapter VIII of the Presidency Small Cause Courts Act, 1882, are not suits. Both in England and in India the term 'distress' primarily connotes :--
"a summary remedy by which a person is entitled without any legal process to take into his possession the personal chattels of another person to be held as a pledge to compel the performance of a duty or the satisfaction of a debt or demand. By almost universal sanction, the term 'distress' is now used to designate both the process of taking and the chattels taken Paragraph 201 at page 107. In England, the right of the landlord to distrain for arrears of rent originally arose at common law but it is now regulated by different status (vide paragraphs 202, 205, etc. of the aforesaid book). Under Chapter VIII of the Presidency Small Cause Courts Act, 1882 such right to distrain has been given to landlords other than the Government to recover from their tenants, houses and premises situated within the local limits of the said Court, the rents which have become due for 12 months before the making of the application under Section 53 of the said Act. It is significant that before issuing under Section 54 of the Act, a distress warrant upon an application by a person claiming to be entitled to the arrears of rent, the Judge or the Registrar is not required to conduct any legal process, i. e., to adjudicate whether in fact the person who had applied under Section 53 is entitled to arrears of rent claimed by him. The Judge or the Registrar, as the case may be, is required to be satisfied that the application under Section 53 of the Presidency Small Cause Courts Act, 1882 is in the prescribed form and is supported by an affidavit or an affirmation. Therefore, we are unable to hold that an application under Section 53 should be considered, a proceeding equivalent to a suit.
8. Sankar Prasad Mitra, C. J. add A. J. Janah, J. in the case of Lall Krishna Hundra v. Fatick Chandra Hazra and Ors. reported in I. L. R. 1973 (1) Calcutta 343 at page 349, upheld the constitutional validity of Chapter VII of the Presidency Small Cause Courts, Act, 1982. In paragraph 20 of their lordships judgment similar observations have been made to the effect that under Section 54 of the said Act, the Judge or the Registrar has a discretion to issue or not to issue a warrant. Therefore, the said power is a judicial one. Those observations were made for deciding whether the provision was constitutionally valid. Their lordships did not, however, further hold that the proceedings under Chapter VIII of the said Act, were suits within the meaning of Section 17 of the Presidency Small Cause Courts Act. Therefore, our decision is not contrary to the reported decision in the aforesaid case.
9. The Supreme Court in the case of Babu Lal v. Hazari Lal Kishori Lal and Ors. , while constructing Section 22 of the Specific Relief Act, 1963 had pointed out that the term 'proceeding' is a very comprehensive one and means a prescribed Course of action for enforcing a legal right. In the context of Section 22 of the said Act, the court held that execution proceedings were also covered by Section 23 of the Specific Relief Act. The said decision has no relevancy for deciding whether an application under Section 53 of the said Act of 1882 should be considered as a suit within the meaning of Section 18 of the said Act. The said Act of 1882 clearly indicated that the Sections 18 and 19 of the said Act are inapplicable to Chapter VIII of the said Act. Secondly, upto the stage of presentation of application under Section 53, issue of distress warrant under Section 54 and the seizure of movable property under Section 57 of the Act, the hearing and determining any cause does not arise. Only when an application under Section 60 is made by the debtor or any person alleging to the owner of the seized property, the court has to act judicially but in a summary manner to decide whether the warrant should be discharged or suspended and the articles seized ought to be released. Similarly, under Section 61 a claim of a stranger is to be similarly adjudicated. But even the proceedings under Section 60 or 61 of the Presidency Small Cause Courts Act, 1882 cannot be considered as regular suits. It is also very material that even when the Judge allows an application under Section 60, he merely discharges or suspends the warrant or releases the seized articles. He does not thereby necessarily adjudicate whether the rent claimed by the landlord is at all recoverable, under Section 61 of the Act, The Judge is however, required to adjudicate upon the claim of a stranger and therefore, unlike other provisions in Chapter VIII Section 61 inter alia, provides, "the procedure in the Small Cause Court in cases under this Section shall conform as far as may be to the procedure in an ordinary suit in such courts".
10. For that foregoing reasions, we hold that neither an application under Section 53 of the Presidency Small Cause Courts Act, 1882 nor a proceeding under Section 60 of the said Act for considering the claim of the tenant for the discharge or suspension of the warrant or release of the goods seized are subject to Sections 17 and 18 of the said Act. Incidentally, we may record that at one stage of his submission, Mr. R. N. Mitra, learned Advocate on hehalf of the petitioner company, submitted that his client may be granted instalments to pay the arrear rent covered by the distress warrant in question. Therefore, it appears that the petitioner tenant does not dispute that the rents in question were in arrears.
For the foregoing reasons we reject this revisional application without any order as to costs.
Sudhanshu Sekhar Ganguly, J.
11. I agree.