Calcutta High Court (Appellete Side)
M/S. Fona Rubber Pvt. Ltd vs Eastern Chemical Industries on 25 April, 2011
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
CAN No. 5507 OF 2010
(In connection with
S.A. No. 105 Of 2009)
M/s. Fona Rubber Pvt. Ltd. .......Petitioner/ appellant/defendant.
- versus -
Eastern Chemical Industries ..........
Opposite Party/Respondent/Plaintiff.
Mr. Sudhis Dasgupta, Sr. Advocate
Mr. Asok Banerjee, Sr. Advocate
Mr. Hironmoy Bhattacharjee,
Mr. P.K. Roy,
Mr. S.K. Kanodia .... For the Petitioner
Mr. Hirak Kumar Mitra, Sr. Advocate
Mr. Kalyan Bhaduri,
Mr. Sudip Deb,
Ms. S. Ghosh .... For the Respondents
Heard on: 25.03.10, 17.06.10, 27.08.10, 20.08.10, 16.09.10, 10.09.10, 03.09.10,
26.11.10, 03.12.10, 09.12.10, 20.12.10, 23.12.10, 06.01.11 and 07.01.11.
Order on: 25.04.2011
TAPAN KUMAR DUTT, J.
This Court has heard the learned Advocates for the respective parties in connection with the application being CAN 5507 of 2010.
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The plaintiff/respondent/opposite party filed an ejectment suit against the defendant/appellant/petitioner in the year 1996 and the suit was governed by the West Bengal Premises Tenancy Act, 1956. The learned Trial Court found in its judgement that the plaintiff had served a notice under Section 13(6) of the said Act of 1956 upon the defendant and the said notice is legal, valid and sufficient and that there was a relationship of landlord and tenant in between the parties and the tenancy was rightly determined according to law. The learned Trial Court, however, found that the plaintiff has failed to prove his case, that is, the plaintiff could not prove any of the grounds on which the ejectment suit was filed against the petitioner. The respondent/opposite party filed a title appeal against the judgement and decree of the learned Trial Court and the learned Lower Appellate Court allowed the said appeal and set aside the judgement and decree passed by the learned Trial Court. The learned Lower Appellate Court decreed the ejectment suit in part by granting a decree for eviction in favour of the plaintiff and against the defendant on the ground of reasonable requirement and the defendant/appellant/petitioner was directed to vacate the suit premises within a stipulated period of time failing which the plaintiff/opposite party was given liberty to get possession of the suit premises in due course of law. Challenging such judgement and decree passed by the learned Lower Appellate Court the petitioner has preferred the instant appeal which is pending hearing in this Court. It appears that the instant second appeal has been admitted for hearing and an interim order of stay was granted by an Hon'ble Division Bench on 11.2.09 to the effect that there shall be stay of all proceedings in the pending 3 execution case concerned. It appears that by an order dated 8.5.09 an Hon'ble Single Judge of this Court was pleased to observe that the interim order of stay passed by the Hon'ble Division Bench should continue subject to the fulfillment of certain conditions. It appears that the second appeal was dismissed for default and, subsequently, by an order dated 26.2.10 the appeal was restored to its original file and number after recalling of the order of dismissal of the appeal. The interim order dated 8.5.09 was also revived and it was directed that it shall continue to operate on the same terms and subject to the same conditions.
Now, the defendant/appellant has filed the present application (CAN 5507 of 2010) for a direction upon the Thika Controller, Calcutta Thika Tenancy to dispose of a certain matter admitted on May 17, 2010 and the instant second appeal should be adjourned sine die with liberty to the parties to mention after final orders are passed in the said matter before the Thika Controller. The defendant/appellant has also prayed for interim stay for all further proceedings in the instant second appeal and the connected applications.
The defendant/appellant/petitioner has stated, inter alia, in the said application that during the pendency of the instant appeal and an application for adducing additional evidence, a notice dated 15th, February, 2010 has been served upon the appellant/petitioner by the Officer-in-Charge of the Tangra Regional Thika Tenancy Office attached with the Calcutta Thika Tenancy, Government of West Bengal and upon receipt of the said notice the 4 appellant/petitioner appeared before the concerned authority and furnished papers and documents as directed by the said authority from time to time. The petitioner has alleged that the concerned authority has formed an opinion that the said property is a thika land within the meaning of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 as protected under the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001. It has also been alleged by the petitioner that it has filled an application in Form B as prescribed under the said Act and the Thika Controller has by an order dated 17th May, 2010 admitted the petition of the petitioner and has given directions for service of copy of such petition upon the interested parties. It has been contended in the application that aforesaid Act of 1981 continues to be saved by the aforesaid Act of 2001 and the said Act of 2001 gives specific and exclusive power to the Thika Controller to decide the question as to whether or not a person is a "Bharatia" under a particular thika tenant in respect of a thika land. It has been alleged by the petitioner that the question whether the appellant/petitioner is a "Bharatia" or not has to be decided by the Thika Controller alone and the same cannot be decided by any other authority or Court of law. It has been alleged in the said application that the question whether the plaintiff/respondent will be entitled to pray for eviction against the appellant/petitioner is dependant upon the adjudication by the Thika Controller, and, accordingly, the hearing of the second appeal should be adjourned till the disposal of the matter by the Controller, Calcutta Thika Tenancy.
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The said application has been contested by the respondent/opposite party by filling affidavit.
The learned Advocate for the appellant/petitioner has submitted that the appellant/petitioner received a notice dated 15.2.10 from the Officer-in-charge, Tangra Regional Thika Tenancy Office wherein it was stated that an information has been received by the said thika tenancy office with regard to the alleged thika tenancy nature of premises No. 77/1, Christopher Road, Kolkata-46 and that the appellant/petitioner who appears to be an interested party in the said premises was requested to be present in the said thika tenancy office on a certain day. It was also indicated in the said notice that if the petitioner failed to appear then the spot inquiry/hearing will be completed and decided ex parte. The said learned Counsel submitted that the said notice was issued by the Thika Controller's Office suo moto. The said learned Counsel referred to a letter dated 22 February, 2010 written by the appellant/petitioner to the Officer-in-Charge of the said Thika Tenancy Office wherein it was indicated that the appellant/petitioner never occupied any portion of the premises No.77/1, Christopher Road, Kolkata but presently the appellant/petitioner is in occupation of a portion of premises No.77B, Christopher Road, Kolkata which was earlier numbered as premises No.77, Christopher Road. It further appears that by an order dated 17.5.10 passed in Misc. Case No.30 of 2010 the Controller, Calcutta Thika Tenancy indicated that it was a dispute of Bharatia under Section 8(8) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 and that 6 the matter has been admitted and the appellant/petitioner was directed to serve appropriate notice along with the copy of the petition before the Thika Controller upon all the parties interested in the subject matter of the dispute involved in the said Misc. case. It appears from the application and the submissions made by the learned Counsel for the appellant/petitioner that a dispute is pending before the Thika Controller as to whether or not the appellant/petitioner is a Bharatia under the said Act of 2001 and whether the property which is in dispute in the present second appeal comes within the purview of the said Act of 2001. The learned Counsel appearing on behalf of the appellant/petitioner has referred to Section 5(3) of the said Act of 2001 which is quoted below:
"If any question arises as to whether a person is a thika tenant or not or whether the land in question is thika land or not, the Controller, either on his own motion or upon receiving any information, may, after giving the persons interested an opportunity of being heard and after examining all such documents and particulars as may be considered necessary, enquire upon and decide such question".
Reference was made to Section 8(2) of the said Act of 2001 which is quoted below:
"If any question arises as to whether a person is a Bharatia under a particular thika tenant, the Controller, either on his own motion or upon receiving any information, may, after giving the persons interested an opportunity of being heard and after examing all such documents and particulars as may be considered necessary, enquire upon and decide such question". Reference was made to Section 8(3) of the said Act 2001 which is quoted below:7
"Any dispute regarding payment of rent by the thika tenant to the State Government or by a Bharatia to a thika tenant, or any case of eviction of Bharatia, shall be disposed of by the Controller in such manner as may be prescribed".
Reference was made also to Section 8(4) of the said Act of 2001 which is quoted below:
" A thika tenant may, in default of payment of rent to the State Government, be evicted or otherwise penalised by the Controller in such manner as may be prescribed".
Reference was also made Section 8(8) of the said Act of 2001 which is quoted below:
"Where there is no thika tenant or the thika tenant is not traceable for any reason whatsoever, a Bharatia shall be liable to deposit rent with the Controller in respect of the area of the structure as is occupied by him at such rate, and in such manner, as may be prescribed.
The said learned Counsel also referred to Sections 12 and 21 of the said Act of 2001 which are quoted below:
Section 12-Appeal-(1) "Any person aggrieved by an order of a Controller may, within 30days from the date of the order, prefer an appeal in writing before the Land Reforms and Tenancy Tribunal established under the West Bengal Land Reforms and Tenancy Tribunal Act, 1997(West Ben.Act xxv of 1997). (2) "Subject to provisions of this Act and rules made thereunder any order passed by the Land Reforms and Tenancy Tribunal may, in the manner prescribed, be 8 reviewed by the said Tribunal on account of some mistake or error apparent on the face of the record or for any other sufficient cause of like nature".
Section 21. " Bar to jurisdiction- No Civil Court shall have jurisdiction to decide, or to deal with, any question, or to determine any matter, which, by or under the Act, is required to be, or has been, decided or dealt with, or which is to be, or has been, determined, by the Controller or the appellate or other authority specified in the provisions of this Act, and no order or judgement passed, or proceedings including execution proceedings commenced, under the provisions of this Act shall be called in question in any Civil Court".
The learned Advocate for the appellant/petitioner referred to a judgement reported at AIR 1966 SC166 (Bhimaji Shankar Kulkarni -v- Dundappa Vithappa Udapudi and another) and referred to Paragraph 4 of the said reports. While considering the provisions of Sections 29, 70, 85 and 85-A of the Bombay Tenancy And Agricultural Lands Act, 1948 the Hon'ble Supreme Court was pleased to observe that with regard to suits and proceedings by a land owner for possession of agricultural lands the combined effect of the said sections is that the Mamlatdar has exclusive jurisdiction to entertain an application by a landlord for possession of agricultural lands against a tenant and the Civil Court has no jurisdiction to entertain and try a suit by a landlord against a tenant for possession of agricultural lands. The Hon'ble Court was pleased to observe that if the defendant to the suit pleads that he is a tenant or a protected tenant or a permanent tenant and an issue arises whether he is such a tenant, the Court must refer the issue to the Mamlatdar for determination and must stay the suit 9 pending such determination, and after the Mamlatdar has decided the issue, the Court may dispose of the suit in the light of the decision of the Mamlatdar. The Hon'ble Court was pleased to observe that Section 70(b) of the said Act provides that for the purposes of the Act, one of the duties and functions to be performed by the Mamlatdar is to decide whether a person is a tenant or a protected tenant or a permanent tenant and Section 85(1) provides that no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by the Act required to be settled, decided or dealt with by the Mamlatdar. The Hon'ble Court was further pleased to observe that under Section 85A of the said Act if any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under the said Act, the Civil Court shall stay the suit and refer such issues to the competent authority for determination.
The said learned Advocate cited another decision reported at AIR 1969 Supreme Court 78 (Dhulabhai etc., -V- State of Madhya Pradesh and another). The Hon'ble Court was, inter alia, pleased to observe that where the statute gives a finality to the orders of a special tribunal the Civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. The Hon'ble Court was further pleased to observe that such provision does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principle of judicial procedure. 10
The said learned Advocate cited another decision reported at 1989 SUPP (2) Supreme Court cases 627 (Pandurang Ramchandra Mandlik by his lrs. and another -V- Shantibai Ramchandra Ghatge and others). In the said reports the provisions of Sections 85(1), 85-A and 70 of the Bombay Tenancy And Agricultural Lands Act, 1948 came up for consideration before the Hon'ble Court which was pleased to observe that if certain issue is required to be specifically decided by the competent authority under the said Act then in that event the Civil Court should refer such issue to such competent authority and dispose of the suit in accordance with the decision of the authority concerned.
The learned Advocate for the appellant cited another decision reported at JT. 2009(1) SC 177(Dwarika Nath Acooli -V- Dulal Chandra Bayen and Ors) in support of his contention that if under a certain Act a certain authority is required to decide a particular dispute then in that event that authority alone can decide such dispute.
The learned Advocate for the petitioner submitted that the second appeal is a continuation of the suit and he referred to the decision reported at AIR 1957 Supreme Court 540 (Garikapati Veeraya -V- N.Subbiah Choudhry & Ors.) in this regard.
The said learned Advocate submitted that any dispute between a thika tenant and a Bharatia should be referred to the Thika Controller for a decision and this Court should not decide whether there was a pucca structure or not in the suit property. It was submitted on behalf of the petitioner that under the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 the Thika 11 Controller did not have the power to decide whether a person is a thika tenant or not or Bharatia or not or whether a certain land is thika land or not. But such power is now given to the Thika Controller under the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001. It was submitted on behalf of the petitioner that when the case reported at 2001(3) CHN 641 (Sri Sri Satyanarayan & Ors. -V- S.C. Chunder) was decided the said Act of 1981 was in force and the said Act of 2001 did not come into force. The learned Advocate for the petitioner stated that even though the opposite party has relied upon the agreement dated 2nd April, 1974 being Annexure A to the affidavit-in-opposition dated 6th August, 2010 the said Annexure would show that the stamp paper was purchased on 1st June, 1974. He further submitted that the said agreement dated 2.4.1974 was not mentioned in the plaint and it was not mentioned anywhere before the said affidavit-in-opposition dated 6.8.10 came into existence. The said learned Advocate referred to Paragraph 2 of the plaint wherein it was stated that 18 Cottahs of leasehold land with kunchha and temporary one-storied structures, surrounded by brick walls was let out to M/s. Capital Rubber Works which subsequently promoted the defendant/petitioner- company which is in wrongful occupation of the said property. The said learned Advocate referred to the affidavit-in-opposition dated 8th December, 2010 wherein it was alleged that certain portions of the original premises No.77 Christopher Road and which have been numbered as 77/1A and 77/1B have vested in the State of West Bengal as thika land and proceedings are pending before the learned Thika Controller in respect of premises No.77/1 Christopher Road. 12
The learned Advocate for the petitioner cited a judgement reported at 1999(1) CLJ 250 (Shayamal atta & Ors. -V- State of West Bengal, the ld. Thika Controller & Anr.) in support of his contention that the said Act of 1981 did not give any power to the Thika Controller to adjudicate whether a person is a thika tenant or not. He cited another judgement reported at 1999(2) SCC 479 (Sundaram Finance Ltd. -V- Nepc India Ltd.) and referred to Paragraph 9 of the said reports while submitting that in the instant case if any reliance is placed on the said Act of 1981 then in that event it may lead to misconstruction. Of course, the Arbitration Act, 1940 and Arbitration and Conciliation Act, 1996 were under consideration in the said reports. The said learned Advocate submitted that the provisions of the said Act of 2001 are different from the provisions of the said Act of 1981. He submitted that under the said Act of 1981 whether a person is a thika tenant or not could not be decided by a Thika Controller but in the said Act of 2001 the Thika Controller has such jurisdiction.
He referred to a decision reported at 2009(1) CLJ(Cal)148(Haradhan Das - V- Rakshakar Mukhopadhyay & Anr.) and referred to Paragraphs 5 and 10 of the said reports. In the said reports the provisions of Section 21(3) of the West Bengal Land Reforms Act, 1955 were under consideration and the Hon'ble Court was pleased to hold that since there was a dispute as to whether a person was a Bargadar or not reference should have been made under Section 21(3) of the said Act of 1955 to the competent authority under Section 18 of the said Act of 1955 who has jurisdiction to adjudicate upon such disputes. The learned Advocate for 13 the appellant/petitioner referred to a certain letter dated 29th July, 2010 written on behalf of the respondent/opposite party to the Thika Controller that since the Hon'ble High Court, Calcutta is in seisin over the matter in dispute the said proceedings before the Thika Controller should be kept in abeyance till the disposal of the matter by this Court.
The learned Advocate for the appellant/petitioner cited a decision reported at 88 CWN 854 (Birendra Nath Roy -V- Biswanath Mondal and Ors.) in support of his contention that even in an execution proceeding pending before a Civil Court reference can be made under Section 21(3) of the said Act of 1955 for the purpose of resolving the dispute whether a person is a Bargadar or not. In the said reported case, the Hon'ble Court held that in the facts and circumstances of the said case the learned Munsif was justified in referring the matter to the appropriate authority for determination of the question whether the judgement debtors were Bargadars or not in respect of the suit property concerned and there was no jurisdictional error on the part of the learned Court.
The learned Advocate for the appellant/petitioner referred to a certain lease agreement dated 23rd September, 1952 between the Shyama Charan Mitra and the lessee concerned in support of his submission that in the said lease agreement the property was described as a vacant land. He also referred to Paragraph 7 of the plaint wherein the plaintiff had alleged that the construction on the tenanted land was converted by the defendant to pucca sheds. He also 14 referred to Paragraph 2 of the plaint where it was alleged that one Harry Morris let out 18 Cottahs of leasehold land with kunchha and temporary one-storied structures thereon, surrounded by brick built walls, to M/s. Capital Rubber Works. He submitted that the written statement in the suit was filed in the year 1998 when the law concerned was different and this cannot stand in the way of the Thika Controller to decide a dispute with regard to the nature of the property in dispute and as to whether or not the said property comes within the purview of the Thika Tenancy laws.
He referred to a decision reported at 79 CWN 852 (PurushottamDas Murarka -V- Harendra Krishna Mukherjee) in support of his contention that if during the pendency of a lease a thika tenant constructs or attempts to construct pucca structures on the demised land without the permission of the landlord, he does not cease to be a thika tenant.
The learned Advocate for the appellant/petitioner referred to Section 2(14) of the said Act of 2001 which defines a "Thika Tenant." Section 2(14) of the said Act of 2001 is quoted below:
"Thika tenant" means any person who occupies, whether under a written lease or otherwise, land under another person, and is, or but for a special contract, would be, liable to pay rent at a monthly or any other periodical rate for that land to that another person, and has erected or acquired [by purchase or gift any structure including pucca structure, if any, on such land] for residential, manufacturing or business purpose, and includes the successors-in-interest of 15 such persons but excludes any resident of a structure forfeited to the State under sub-Section (2) of Section 6 of this Act irrespective of the status, he may have enjoyed earlier".
Reference was also made to the definition of "thika land". Section 2(15) of the said Act of 2001 is quoted below:
"Thika land" means any land comprised in and appurtenant to, tenancies of thika tenant irrespective of the fact whether there is any claim of such tenancy or not and includes open areas and roads on such land". Reference was also made to Section 3 of the said Act of 2001. The said "Section 3" is quoted below:
" Act to override other laws - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force or in any custom, usage or agreement or in any decree or order of a court, tribunal or other authority".
The said learned Advocate referred to Section 3(8) of the said Act of 1981 and submitted that the words "pucca structures" did not find any place in the said section. He submitted that the judgement reported at 2001(3) CHN 641(Sri Sri Satyanarayan & Ors. -V- S.C. Chunder) and other judgements which have been delivered earlier cannot be applied in the instant case since the law has changed. He submitted that the existence of pucca structure does not disqualify a person from being a thika tenant under the present law. He submitted that there is no substance in the arguments that till recently the appellants did not claim any thika tenancy in respect of the suit property as the character of the land concerned does not depend whether such claim has been made or not. 16 According to the said learned Advocate if a question has now arisen with regard to the nature of the property in dispute and also the question as to whether or not the property in dispute is comprised in a thika land the matter should be referred to the appropriate authority as prescribed under the law. The said learned Advocate has submitted that the Thika Controller has initiated the proceeding and the appellant has brought to the notice of this Court and has made the present application.
The petitioner's learned advocate submitted that the petitioner has not prayed before this Court to refer the dispute regarding thika tenancy to the Thika Controller but the Thika Controller has initiated the proceedings and the appellant/petitioner has prayed for stay of further proceedings in the second appeal; therefore, the appellant itself has not raised any new plea.
The learned Advocate for the petitioner submitted that the provisions of the said Act of 2001 would be applicable to the facts of the instant case as the instant second appeal is a continuation of the suit. The said learned Advocate referred to the decision reported in 55 CWN 509 (Satyanarayan Prosad Goopta - V- Diana Engineering Company) wherein it was held that "once the appeal was preferred from the order that order lost its finality. A decision liable to appeal may be 'final' until the appeal is preferred. But once the appeal is filed the decision loses its character of 'finality' and what was once res judicata again becomes res sub-judice, that is, a matter under judicial inquiry. The appeal 17 destroys the finality of the decision, the decree of the lower Court is superseded by the decree of the appellate Court. In other words, once an appeal is filed from a decree or order in a matter, it becomes a pending matter."
The said learned Advocate referred to Section 107 of the Code of Civil Procedure while submitting that an appellate Court can frame issues, take evidence and decide a matter finally.
He referred to Section 4 of the said Act of 2001 while submitting that the vesting under the said Act has retrospective effect. The said Section 4 is quoted below:
"Lands comprised in thika tenancies and other lands, etc. to vest in the State - With effect from the 18th day of January, 1982, the following lands along with the interest of landlords therein shall be deemed to have vested in the State, free from all encumbrances -
1(a) thika land;
(b) lands held in monthly or other periodical tenancies, whether under a written lease or otherwise, for being used or occupied as khatal:
Provided that any land comprised in, and appurtenant to, tenancies of thika tenants created after the 18th day of January, 1982, shall also be deemed to be vested in the State, free from all encumbrances with effect from the date of creation of tenancies of thika tenants:
Provided further that such vesting shall not be deemed to have affected in any way the easements, customary rights or other facilities enjoyed by thika tenants, bharatias or occupiers of land coming within the purview of this section: 18 Provided also that nothing contained in this section shall prevent the State Government or the local authority from taking up any development work on the land appurtenant to tenancies of thika tenants for public purpose".
The said learned advocate submitted that the existence of the provisions of Section 18 of the said Act of 2001 shows that the provisions of the said Act of 2001 are mandatory. Section 18 of the said Act of 2001 is quoted below:
"Penalty (1) Whoever contravenes any provision of this Act which may facilitate the commission of an offence, shall be punishable with imprisonment for a term which may extend to five years and also with fine which may extend to ten thousand rupees:
(2) Whoever voluntarily causes any resistance or obstruction to the lawful discharge of duties of the Controller or his representative, shall be punished with imprisonment for a term which may extend to one year and also fine which may extend to five thousand rupees:
(3) Offences under this section shall be bailable and cognizable. (4) No court shall take cognizance of any offence punishable under this section except on a complaint made in writing by a Controller or by an officer authorized by him in this behalf.
(5) An offence under this section shall be triable by a Judicial Magistrate of first class having jurisdiction over the places of occurrence of such offence".
He also referred to Section 27 of the said Act of 2001 which is quoted below: 19
"Repeal and savings - (1) With effect from the date of commencement of this Act, the Kolkata Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 (West Ben. Act XXXVII of 1981), shall stand repealed. (2) Notwithstanding the repeal of the said Act, such repeal shall not -
(a) Affect the previous operation of the said Act or anything duly done or suffered thereunder; or
(b) Affect any right, privilege, obligation or liability acquired, accrued or incurred under the said Act;
(c) Affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the said Act; or
(d) Affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed".
The said learned Advocate referred to Paragraph 5 of the decision reported in AIR 1979 Cal 219 (Indo Burma Forest Syndicate -V- Nitai Charan Haldar) wherefrom it appears that the Government being the proprietor of a certain land settled the same to the petitioner in the said case by way of permanent lease. The Hon'ble Court held that it was unable to hold that thika tenancies created by lessees of khas mahal lands stand outside the purview of the Calcutta Thika 20 Tenancy Act. The Hon'ble Court held that the Calcutta Thika Tenancy Act is applicable to thika tenancies of khas mahal lands, the Government having no connection with such tenancies.
The learned Counsel for the respondent/opposite party submitted that the appellant/petitioner is precluded from raising the question of thika tenancy. He referred to Paragraph 7 of the written statement where the defendant has denied that the suit property was having kutcha structure. He referred to Paragraph 12 of the written statement where the defendant has stated that it is a tenant, and the said learned counsel submitted that the defendant did not dispute that the plaintiff is the landlord. He submitted that the defendant never alleged in the written statement that the suit property or any part of it had vested in the State under the thika tenancy laws. He referred to Paragraph 14 of the written statement where the defendant has stated that it is governed under the West Bengal Premises Tenancy Act, 1956 and it has filed an application under Section 17 (2) and 17(2A) and (b) of the said Act of 1956. The said learned Counsel referred to Paragraph 3 of the additional written statement while submitting that the allegations made in the said paragraph show that the defendant has admitted the plaintiff to be the owner of the suit premises. It, however, appears from the allegations made in the said paragraph that the defendant has "denied that the plaintiff is the owner by purchase of the suit property".
The said learned Counsel submitted that the appellants/petitioner is now estopped from taking the plea that the land comprised in the suit property is a thika land and that vesting has taken place under the relevant Thika Tenancy 21 Laws. According to the said learned Counsel, the appellant/petitioner is now estopped from raising the question whether it is a 'bharatia' or not under the Thika Tenancy laws. The said learned Counsel submitted that as per the evidence of DW1, the said DW1 also admitted that there are pucca structures in the suit property and the suit property was never comprised of kutchha structure. According to the said learned Counsel the defendant cannot now be permitted to approach the Thika Controller. He raised a question as to what prompted the Thika Controller to issue the notice dated 15.2.2010 and at whose instance such notice was issued and also as to how the Thika Controller came to know that the appellant/petitioner was interested in the said property.
The learned Counsel for the respondent/opposite party referred to the final report submitted by the Advocate Commissioner in the suit wherefrom it appears that the said Commissioner found that the stair case was of concrete and pucca structure. Even though some submissions were made with regard to the fact that in the notice dated 15.2.10 issued by the thika tenancy office concerned that the premises mentioned in the said notice were 77 and 77/1 Christopher Road Kolkata 46 and the subject-matter of the said notice was 77/1 Christopher Road Kolkata 46 but it appears from the order dated 17.5.10 passed in Misc. case No. 30 of 2010 that the premises referred to is premises No.77B, Christopher Road (formally 77 Christopher Road). The learned Counsel for the respondent/opposite party referred to the said final report of the learned Advocate Commissioner wherefrom it appears that the portion of the plaintiff-company and the portion of the defendant-company were situated at premises No. 77B, Christopher Road 22 and the said learned Commissioner found no existence of the defendant-company in 77A Christopher Road. It will appear from the schedule of the property described in the plaint of the ejectment suit that the suit property is "18 Cottahs of land situate at 77B, or 77/A or 77/1, as alleged, Christopher Road P.S. Tangra, Kolkata 700046, having thereon originally one tin shed or mud shed godown converted into pucca shed or sheds along with the raising of two-storied pucca structure consisted of several rooms". The said learned Counsel submitted that the defendant/appellant cannot be permitted to travel beyond its pleadings and the appellant/petitioner has suppressed material facts in the application by not stating that it was a monthly tenant and the suit property comprised of pucca structures. He referred to a decision reported at 2010(2) SCC 114 (Dalip Singh -V- State of Uttar Pradesh and others) wherein it was held that if there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. He cited another decision reported at AIR 1930 Privy Council 57(Siddik Mahomed Shah -V- Mt.Saran and others) where it was held that a claim which was never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward.
The said learned Counsel referred to Xerox copies of the petition under Section 17(2) and 17(2A) and (b) of the West Bengal Premises Tenancy Act, 1956 and also the application before the Rent Controller at Calcutta. It appears that the petitioner stated that it is a monthly tenant under the respondent/opposite party in respect of one factory shed with M.S. structure covered with Asbestos, 23 tile shed, pucca godown and office room at 77B Christopher Road, Kolkata in the said petition under Section 17(2) and 17(2A) and (b) of the said Act of 1956. The defendant/appellant has stated that there is a bona fide dispute with regard to the relationship of landlord and tenant in between the parties and that such dispute is required to be adjudicated. The said learned Counsel submitted that it only shows that the appellant/petitioner took recourse to the provisions of the said Act of 1956 as it was a monthly premises tenant governed by the said Act of 1956 and it is now estoped from raising a dispute under the provisions of the Thika Tnancy Laws.
The said learned Counsel cited another decision reported in 1976(4) SCC 320 (M/s. Modi Spinning & Weaving Mills Co. Ltd. And Another -V- M/s. Ladha Ram & Co.) wherein it was held that the defendant cannot be allowed to change completely the case made out in its written statement and substitute an entirely different and new case which would have the effect of displacing the plaintiff completely from the admissions made by the defendant in the written statement. The Hon'ble Supreme Court in the said reports held that the application for amendment of the written statement was rightly rejected. The said learned Counsel also cited the decision reported at 1998(1) SCC 278 (Heeralal -V- Kalyan Mal and others) in this regard.
The said learned Counsel relied upon the decision reported at 1987 CLJ 420 (Chittaranjan Mukherji -V- Barhoo Mahto) in support of his contention that the petitioner having taken recourse to the said Act of 1956 by filing applications under the said Act and claiming to be a monthly tenant cannot now take the 24 plea that the suit property comes under the provisions of the Thika Tenancy Laws.
The said learned Counsel cited a decision reported at 2007(10) SCC 21 (Kishor Kirtilal Mehta and others -V- Lilavati Kirtilal Mehta Medical Trust and others) in support of his contention that no amount of evidence can be looked into on a plea never put forward by a party.
The learned Counsel for the opposite party submitted that the Thika Controller cannot be permitted to assume jurisdiction by deciding jurisdictional facts wrongly and the Thika Controller did not even inquire whether the property in dispute is comprised of kutcha or pucca structure. The said learned Counsel raised a question as to who gave the information to the Thika Controller that the land in the property in dispute is a thika land. By referring to copy of a letter appearing at page 60 of the application the said learned Counsel raised a question as to how Thika Controller could advise the petitioner to submit the Form B and it was for the first time the petitioner claimed to be a Bharatia under a thika tenant. The said learned Counsel referred to a decision reported at AIR 1987 Cal 326 (Lakshmimoni Das & Ors. -V- State of West Bengal & Ors.) in support of his contention that the Thika Tenancy Laws were essentially a piece of legislation for vesting of Thika Tenancy Lands and temporary or kutcha structures thereon. He cited another decision reported at 2001(3) CHN 641 (Sri Sri Satyanarayan & Ors. -V- S.C. Chunder) in support of his contention that thika tenancy relates to kutcha structures primarily. The said learned Counsel submitted that appellant/petitioner has already taken recourse to the provisions 25 of West Bengal Premises Tenancy Act which governed the relationship between the parties and as such the petitioner cannot now be permitted to take the stand that the West Bengal Premises Tenancy Act was not applicable to the relationship between the parties. The said learned Counsel submitted that the petitioner suppressed material facts before the Thika Controller inasmuch as the petitioner did not disclose before the Thika Controller that the petitioner itself had stated in its pleadings in the suit that suit property comprised of pucca structures and such non-disclosure of material facts amounts to fraud. He cited a decision reported at 1896 AC 273 (Aaron's Reefs, Limited -V- Twiss) in this regard. It appears that the facts of the said reported case were different. The said reports dealt with the case as to what would happen if a person is induced by a fraudulent prospectus to apply for allotments of shares and his shares are afterwards forfeited by his failure to pay calls.
Reference was made to the decision reported at AIR 1960 MP 323 (S. Chatterjee -V- Dr. K.L. Bhave and others) in support of his contention that the appellant/petitioner committed fraud by suppressing the facts before the Thika Controller. The said learned Advocate cited another decision reported at 1994 1 SCC (1)(S.P. Chengalvaraya Naidu (Dead) By Lrs. -V- Jagannath (Dead) By Lrs. And others) wherein it was held that a judgement or decree obtained by playing fraud on the Court is a nullity and non-est in the eyes of law. It was also held in the said reports that a fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. Reference was also 26 made to a decision reported at 1992 (4) Supreme Court Cases 683 (R.N. Gosain
-V- Yashpal dhir) wherein it was held that law does not permit a person to both approbate and reprobate and that this principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. The said learned Advocate submitted that after having taken recourse to the provisions of the said Act of 1956 the appellant/petitioner cannot now turn round and say that the suit property is governed by the Thika Tenancy Laws. The learned Counsel for the respondent/opposite party, however, submitted that by appearing before the Thika Controller the respondent has not waived any of its rights.
The learned Counsel for the respondent/opposite party submitted that the notice issued by the Officer-in-Charge of the thika tenancy office was dated 15.2.10 but up to June 2010 when the application being CAN 5507 of 2010 was filed no information was given to the respondent about the proceedings before the Thika Controller and it will appear from a copy of the letter dated 25.6.10 annexed to the affidavit-in-opposition that by an order dated 17th May, 2010 the Thika Controller directed service of the petition upon all the parties interested in the subject matter. The said learned Counsel submits that the application filed by the appellant/petitioner is mala fide. It appears that the issue No.2 in the suit 27 was with regard to the question whether there was any relationship of landlord and tenant in between the plaintiff and the defendant and the learned Trial Court came to the finding that the relationship of landlord and tenant in between the plaintiff and the defendant existed.
The learned Counsel for the respondent/opposite party cited a decision reported at 1986(1) CHN 21 (Jatadhari Daw & Grandsons -V- Smt. Radha Debi & Anr.) in support of his contention that the said Act of 1981 had no application if there is a permanent structure in the property concerned. The learned Counsel for the respondent/ opposite party submitted that the only question which is required to be decided by this Court in the present application is as to whether or not the order of stay as sought for by the appellant/petitioner could be granted and this Court is not required to decide the question whether the appellant/petitioner is a thika tenant or not. The learned Advocate appearing on behalf of the respondent/opposite party submitted by referring to Page 64 of the application that some of the disputes raised before the Thika Controller cannot be decided by the Thika Controller. The learned Counsel for the respondent/opposite party submitted by referring to the Calcutta Thika Tenancy (Acquisition and Regulation) Rules, 1982 that the time for furnishing a return to the Controller has long expired and it is now barred by limitation and the appellant/petitioner is also now estopped from raising a question of thika tenancy. The said learned Advocate cited a decision reported at AIR 1953 SC 16 ( Messers. Bhatia Co-operative Housing Society Limited -V- D.C. Patel) in support 28 of his contention that a Civil Court has inherent power to decide the question of its own jurisdiction, although, as a result of its enquiry, it may turn out that it has no jurisdiction over the suit.
The said learned Counsel cited a decision reported at 1999(1) CLJ 250 (Shayamal Atta & Ors. -V- State of West Bengal, The ld. Thika Controller & Anr.) in support of his contention that the said Act of 1981 did not give any power to the Thika Controller to adjudicate whether a person is a thika tenant or not and that the Thika Controller cannot go into the question of title. He further submitted that the "Pucca Structure" did not find any place in the said Act of 1981 but now by way of an Amendment Act of 2010 the said expression "pucca structure" has been included in the definition of "Thika Tenant" in the said Act of 2001 but such provision of law is prospective.
He submitted that every legislation is prospective unless it is expressly made retrospective. He further submitted that the said Act of 2001 came into effect on 1.3.03 and since the said Act is prospective the same is not applicable to the facts and circumstances of the present case and the said Act of 1981 did not prohibit a Civil Court from deciding the question as to whether the property in dispute is a thika tenancy property or not. He further submitted that in the present case none of the parties had raised any issue with regard to the question of thika tenancy but the appellant/petitioner has filed the application for stay since the proceedings are pending before the Thika Controller. He cited a decision 29 reported at (1904 - 7) All ER. 1620 (Colonial Sugar Refining Company -V- Irving) wherein it was observed that "In Principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.
Reference was made to 1999(2) CHN 311(Indira Devi Rajak -V- Thika Controller & Ors.) wherein it was held that there is nothing in the Statute (the said Act of 1981) to indicate that the Thika Tenancy Controller could adjudicate on the validity of a document of title, notwithstanding the provisions of Section 7(2) of the said Act of 1981.
Reference was also made to the decision reported at 1986(1) CHN 21 (Jatadhari Daw & Grandsons -V- Smt. Radha Debi & anr) in support of the said learned counsel's contention that when the suit for eviction was filed and the written statement was filed in such suit the said Act of 1981 was in force and structures in thika tenancy, did not include permanent structures. Reference was made to Paragraph 28 of the decision reported in 2008(7) SCC 85(Gautam Sarup -V- Leela Jetly and others) wherein it has been held that a categorical admission cannot be resiled from but it may be explained or clarified and offering of such explanation in regard to an admission or explaining a way the same would depend upon the nature and character thereof. The Hon'ble Court was further pleased to observe that a defendant is entitled to take an alternative plea 30 but such alternative pleas, however, cannot be mutually destructive of each other. Reference was made to decision reported at 2006(1) CHN 540 (Shrenik Kumar Singhee -V- State of West Bengal & Ors.) in support of the said learned counsel's contention that any dispute which requires declaration of title of the rival claimants, can only be resolved by the Civil Court of competent jurisdiction and not the Thika Controller and the statute (the said Act of 1981) never vested such authority with the Thika Controller.
Reference was made to the decision reported at AIR 2000 SC 2220 (State of Andhra Pradesh -V- Manjeti Laxmi Kantha Rao(D) by L.Rs. and others). In Paragraph 5 of the said reports it was observed by the Hon'ble Court that the normal rule of law is that Civil Courts have jurisdiction to try all suits of civil nature except those of which cognizance by them is either expressly or impliedly excluded as provided under Section 9 of the Code of Civil Procedure. But such exclusion is not readily inferred and the presumption to be drawn must be in favour of the existence rather than exclusion of jurisdiction of the Civil Courts to try civil suit. The Hon'ble Court was further pleased to hold that the test adopted in examining such a question is (i) whether the legislature's intent to exclude arises explicitly or by necessary implication, and (ii) whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it.
31
The learned Counsel for the respondent referred to another decision reported at AIR 2000 SC 2957 (United Bank of India, Calcutta -V- Abhijit Tea Co. Pvt. Ltd and others). Paragraph 21 of the said reports is as follows:
"In some statutes the legislature no doubt says that no suit shall be 'entertained' or 'instituted' in regard to a particular subject matter. It has been held by this Court that such a law will not affect pending actions and the law is only prospective. But, the position is different if the law states that after its commencement, no suit shall be "disposed of" or "no decree shall be passed" or "no Court shall exercise power or jurisdiction". In this class of cases, the Act applies even to pending proceedings and has to be taken judicial notice of by the Civil Courts.
The said learned Counsel also referred to Paragraph 4 of the decision reported at AIR 1967 SC 1419 (Manujendra Dutt -V- Purnendu Prosad Roy Chowdhury and others). The said Paragraph 4 is quoted below.
"Mr. Agarwal for the appellant, at first raised four contentions before us, viz., (1) Whether S.3 of the Act deprived a tenant of his rights under the lease, (2) Whether the Controller had jurisdiction to proceed with the case after the deletion of S.29 from the Act; (3) Whether there was a renewal of the said lease and (4) Whether the appellant could be evicted on the ground of sub-letting even though the said lease expressly permitted him to sub-let. However, in view of the fact that only two of these contentions, viz., regarding jurisdiction and notice had been pressed before the High Court he confined his arguments on those two 32 questions only. The contention of Mr. Agarwal was that since it was only by reason of S. 29 that the suit had been transferred to the Controller the deletion of that section from the Act by Section 8 of the Amendment Act of 1953 had the effect of depriving the Controller of his jurisdiction to try the suit and therefore the judgement and order passed by him though confirmed by the learned Subordinate Judge and the High Court was without jurisdiction and therefore bad. In our view this contention has no force. Though Section 29 was deleted by the Amendment Act of 1953 the deletion would not affect pending proceedings and would not deprive the Controller of his jurisdiction to try such proceedings pending before him at the date when the Amendment Act came into force. Though the Amendment Act did not contain any saving clause, under S.8 of the Bengal General Clauses Act, 1899, the transfer of the suit having been lawfully made under Section 29 of the Act its deletion would not have the effect of altering the law applicable to the claim in the litigation. There is nothing in Section 8 of the Amending Act of 1953 suggesting a different intention and therefore the deletion would not affect the previous operation of Section 5 of the Calcutta Thika Tenancy Act or the transfer of the suit to the Controller or anything duly done under Section 29. That being the correct position in law the High Court was right in holding that in spite of the deletion of Section 29 the Controller still had the jurisdiction to proceed with the said suit transferred to him".
Having heard the learned Advocates for the respective parties and having considered the application and the affidavits on record this Court is of the view 33 that the only question which arises in the instant application is whether the hearing of the present second appeal should be adjourned and/or stayed till the disposal of the aforesaid proceedings pending before the Thika Controller.
The suit was filed in the year 1996. The suit was disposed of in the year 2006 and the title appeal concerned was disposed of in the year 2008. The present second appeal was filed in the year 2009 and it was admitted for hearing in the year 2009 itself. The said Act of 2001 came into force on 1.3.2003. The various sections of the said Act of 2001, as referred to by the learned Advocates at the time of hearing, have been quoted above. But before referring further to such sections of the said Act of 2001 it will be proper to consider two reported cases in this regard. In Paragraph 5 of the decision reported at AIR 2000 SC 2220 (supra) it has been stated that the normal rule of law is that Civil Courts have jurisdiction to try all suits of civil nature except those of which cognizance by them is either expressly or impliedly excluded as provided under Section 9 of the Code of Civil Procedure. But such exclusion is not readily inferred and the presumption to be drawn must be in favour of the existence rather than exclusion of jurisdiction of the Civil Courts to try civil suit. The Hon'ble Court was further pleased to observe that the test adopted in examining such question is (i) whether the legislature's intent to exclude arises explicitly or by necessary implication, and (ii) whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it.
The next decision to be considered in this regard is the one reported at AIR 2000 Supreme Court 2957(supra). In Paragraph 20 of the said reports the 34 Hon'ble Court has been pleased to hold that it is well-settled that it is the duty of a Court, whether it is trying original proceedings or hearing an appeal, to take notice of the change in law affecting the pending actions and to give effect to the same. The Hon'ble Court had the occasion to consider in the said reports Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and while so considering, the Hon'ble Court was pleased to observe that if, while a suit is pending, a law like the said Act of 1993 Act "that the Civil Court shall not decide the suit, is passed, the Civil Court is bound to take judicial notice of the statute and hold that the suit - even after its remand - cannot be disposed of by it". In Paragraph 21 of the said reports the Hon'ble Court was pleased to observe that in some statutes the legislature no doubt says that no suit shall be 'entertained' or 'instituted' in regard to a particular subject matter and that such a law will not affect pending actions and the law is only prospective. The Hon'ble Court was further pleased to observe that the position is different if the law states that after its commencement, no suit shall be "disposed of" or "no decree shall be passed"
or "no Court shall exercise power or jurisdiction". The Hon'ble Court was pleased to observe that in such class of cases, the Act applies even to pending proceedings and has to be taken judicial notice of by the Civil Courts. Keeping the aforesaid decisions in mind it will now be proper to look into Section 21 of the said Act of 2001. The said Section 21 stipulates that no Civil Court shall have jurisdiction to decide, or to deal with, any question, or to determine any matter, which, by or under the said Act, is required to be, or has been, decided or dealt with, or which is to be, or has been, determined, by the Controller or the 35 appellate or other authority specified in the provisions of the said Act, and no order or judgment passed or proceedings including execution proceedings commenced, under the provisions of the said Act shall be called in question in Civil Court. When the said section stipulates that no Civil Court will decide or deal with any question, or determine any matter which under the said Act is required to be decided or dealt with by a certain authority under the said Act it can only mean that the civil Court's jurisdiction is ousted in so far as such questions and/ or matters are concerned. The said law came into force when the suit itself was pending and as such the question which has now been raised and is pending decision before the Thika Controller could not have been decided by the Civil Court. The provisions of Section 21 of the said Act of 2001, it appears to this Court, comes within the category of that class of cases that is contemplated in the latter part of Paragraph 21 of United Bank of India's case (supra). If a Civil Court is prevented by a statute from deciding a matter and/or deal with such matter and/or question, it only means that it cannot decide and/or deal with such question or matter on its merit.
Under Section 8 (2) of the said Act of 2001 with regard to the question as to whether a person is a Bharatia under a particular thika tenant, the Controller may either on his own motion or upon receiving any information and after giving the persons interested an opportunity of being heard and examining all necessary documents and particulars enquire upon and decide such question. Under Section 5(3) of the said Act of 2001 if any question arises as to whether a 36 person is a thika tenant or not or whether the land in question is thika land or not, the Controller may similarly enquire upon and decide such question.
Under Section 12 of the said Act of 2001 any person aggrieved by an order of a Controller may within a certain time prefer an appeal before the Tribunal concerned. Thus, we find that the two tests as contemplated in Paragraph 5 of the State of Andhra Pradesh's case (supra) have been fulfilled in so far as the statute under consideration is concerned. In the present case, the question which is pending decision before the Thika Controller is as to whether or not the appellant/petitioner is a bharatia under the respondent/opposite party under the Thika Tenancy Laws. It appears from the statute concerned that the Thika Controller has the jurisdiction to decide such question and Civil Court's jurisdiction is ousted in so far as such question is concerned. Since the Thika Controller has been given authority under the said Act of 2001 to decide such question on his own motion or upon receiving any information, there does not appear to be any illegality in the issuance of the notice by the Thika Controller for starting the proceedings to decide such question.
It will be pertinent to note, as held in Garikapati Veeraya's case (supra), that the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding as discussed above. It will appear that the said Act of 1981 did not give any power to the Thika Controller to adjudicate whether a person is a thika tenant or not as held in Shayamal Atta's case (supra). It will 37 appear from Section 2(14) of the said Act of 2001 that the thika tenant may erect or acquire a pucca structure on the land as contemplated under the said provision of law. The decisions which were relied upon on behalf of the respondent/opposite party particularly the decision reported in Sri Sri Satyanarayan's case (supra) did not have the occasion to consider the impact of the said Act of 2001. While considering the said Act of 1981 the Hon'ble Court in the said Satyanarayan's case (supra) was pleased to observe that unless all structures are kuchha in the tenancy, thika tenancy cannot arise and even if one pucca structure comes up the Thika Tenancy Act loses its applicability. But as noted above, the said Act of 2001 contemplates raising of a pucca structure by a thika tenant. The decision reported in Satyanarayan Prosad Goopta's case (supra) as cited by the learned Advocate for the petitioner, may be noted wherein it has been observed that once an appeal is filed from a decree or order in a matter, it becomes a pending matter. Section 4 of the said Act of 2001, as noted above, should also be taken into consideration while considering the present application.
The argument made by the learned Counsel for the respondent/opposite party that the appellant/petitioner is precluded from raising the question of thika tenancy as the appellant/petitioner has claimed itself to be a tenant in the written statement and had filed an application under Section 17(2) and 17(2A) and (b) of the said Act of 1956 and also the argument that the appellant/petitioner is estopped from raising the question whether it is a Bharatia or not under the Thika Tenancy Laws is not acceptable since there has 38 been a change in law during the pendency of the eviction proceedings. It will appear from records that the defendant/appellant had pleaded that it denies that the plaintiff/respondent to be the owner, by purchase, of the suit property. That apart, in the instant case the Thika Controller has initiated the proceedings. The question raised by the learned Advocate for the respondent/opposite party as to what prompted the Thika Controller to issue the notice dated 15.2.10 and at whose instance such notice was issued may give rise to some kind of suspicion but no conclusion can be arrived at on the basis of any suspicion. From the records it cannot be said with any amount of conclusiveness that the Thika Controller acted at the instance of the appellant/petitioner. There is nothing on record to prove that the Thika Controller's notice was issued at the instance of the appellant/petitioner. Reference to the Advocate Commissioner's report for the purpose of showing that the said Commissioner found that there was a pucca structure in the suit property does not in any way help the respondent/opposite party since the said Act of 2001 brings within its scope the pucca structure, as already discussed above. The submissions made by the learned Advocate for the respondent/opposite party that the appellant/petitioner claimed itself to be a monthly tenant in the eviction proceedings and that the suit property comprised of pucca structures may be the points which the respondent/opposite party may take before the Thika Controller but it is difficult to hold that the appellant/petitioner has suppressed any material fact since the application under consideration before this Court involves the only one question as to whether the hearing of the present second appeal should be adjourned till the 39 disposal of the proceedings before the Thika Controller. This Court is not making any inquiry upon and/or dealing with the question as to whether or not the appellant/petitioner is a Bharatia under the respondent/opposite party. The arguments on behalf of the respondent/opposite party that no amount of evidence can be looked into in respect of a plea which was never put forward does not have much relevance in the context of the instant case since this Court is not going into the merits of the proceedings which is pending before the Thika Controller. It appears from records that the appellant/petitioner had raised dispute with regard to the relationship of landlord and tenant in between the parties and had prayed that such dispute is required to be adjudicated. The argument made by the learned Advocate for the respondent/opposite party that the defendant/appellant cannot be allowed to change completely the case made out in its written statement and substitute an entirely different and new case which would have the effect of displacing the plaintiff completely from the admissions made by the defendant in the written statement, cannot be of any assistance to the respondent/opposite party in the context of the present application under consideration since the law has changed, as discussed above. The only question before this Court at present in the instant application is whether the hearing of the second appeal should be adjourned as prayed for by the appellant/petitioner. The argument made on behalf of the respondent/opposite party may be an argument which may be advanced on behalf of the respondent/opposite party in support of their case before the Thika Controller. The question whether the Thika Controller has assumed jurisdiction 40 by deciding jurisdictional facts wrongly or not or whether the Thika Controller has made an inquiry as to whether the property in dispute is comprised of kuchha or pucca structure cannot be gone into by this Court in the present proceedings which has a very limited scope. The argument made by the learned Advocate for the respondent/opposite party that the appellant/petitioner did not disclose its pleadings (in the eviction proceedings) before the Thika Controller may be argued on behalf of the respondent/opposite party before the Thika Controller itself but it is difficult to come to a finding at this stage that the appellant/petitioner has committed fraud. The argument made by the learned Advocate for the respondent/opposite party that a person cannot be permitted to approbate and reprobate does not have any relevance in so far as the present application is concerned since this Court is not going into the merits of the claim of the respective parties that may be advanced before the Thika Controller. This Court is of the view that the present application has been filed by the appellant/petitioner consequent to the notice issued by the Thika Controller and the change in the law from the said Act of 1981 to the said Act of 2001.
The learned Advocate for the respondent/opposite party had submitted that some of the disputes raised before the Thika Controller cannot be decided by the Thika Controller. It will be open for the respondent/opposite party to make such submissions before the Thika Controller itself. The submissions made by the learned Advocate for the respondent/opposite party with regard to the expiry of the time for furnishing a return to the Controller and the applicability of law of limitation is an argument which may be advanced before the Thika Controller. 41
The argument made by the learned Advocate for the plaintiff/respondent that the said Act of 2001 which came into effect on 1.3.03 is prospective and is not applicable to the facts and circumstances of the present case cannot be accepted in view of the discussions already made above. It will be proper to refer to the decision reported at 55 CWN 509 Satyanarayan Prasad Goopta's case (supra) the relevant portion of which has already been quoted above. Since this Court is of the view that the change in law, as discussed above, will have to be taken note of by this Court, the argument made by the learned Advocate for the respondent/opposite party that the said Act of 2001 is not applicable in the facts and circumstances of the present case cannot be accepted - it will depend upon the nature and character of the suit property, that is, whether the suit property is governed by the Thika Tenancy Laws or not. It is true that the Thika Controller cannot adjudicate any question of title to the property but in the present case, it appears, that the question before the Thika Controller is as to whether or not the appellant/petitioner is a bharatia (in terms of Thika Tenancy Laws) in respect of the suit property. The reported decisions cited on behalf of the respondent/opposite party cannot be of any assistance to the respondent/opposite party in view of the discussions made above in the context of the present application which is under consideration. The facts of Manujendra Dutt's case (supra), Paragraph 4 of which has been quoted above, will indicate that the facts were quite different and it cannot be applied to the facts and circumstances of the instant case.
42
In view of the discussions made above this Court is of the view that the hearing of the present second appeal should be adjourned till the disposal of the aforesaid proceeding pending before the Thika Controller concerned.
Accordingly, the application being CAN 5507 of 2010 is disposed of by adjourning the hearing of the present second appeal till the disposal of the aforesaid proceeding pending before the Thika Controller concerned or until further orders, whichever is earlier. Parties will be at liberty to mention with regard to the hearing of the second appeal after the disposal of the aforesaid proceedings before the Thika Controller concerned.
Urgent certified Xerox copy of this order, if applied for, be given to the parties on compliance of all necessary formalities.
( TAPAN KUMAR DUTT, J. ) 43 Later:
After the above order is passed, learned Advocate appearing on behalf of the respondent/opposite party prays for stay of operation of the above order.
Learned Advocate for the petitioner seriously opposes the prayer made on behalf of the respondent/opposite party and he submits that the next date fixed before the Thika Controller concerned is 14th June, 2011.
Considering the submissions made by the learned Advocates for the respective parties, this court is not inclined to grant stay of the 44 above order but this court directs that an urgent Xerox certified copy of the above order and this order, if applied for, be given to the parties within seven days from the date of making of the application for such urgent xerox certified copy of the above order and this order on compliance of usual formalities.
( TAPAN KUMAR DUTT, J. )