Patna High Court
Dasrathi Rai Chaudhury vs Kali Charan Ghosh on 1 February, 1950
Equivalent citations: AIR1951PAT372, AIR 1951 PATNA 372
JUDGMENT Reuben, J.
1. This appeal is directed against an order of the District Judge of Patna, dated 19-7-1949, modifying a decision of the Munsif, first Court, Patna, dated 24-5-1949. It arises in the following circumstances.
2. The respondent as the owner of a house situated in Holding 189, Circle 18, Ward 10, in the Patna City Municipality, obtained on 18-9-1948, an order from the Controller under Section 11, Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III [3] of 1947), which I shall refer to for convenience as Act III [3], directing the appellant as the tenant to vacate the house in favour of the respondent within three months from the date of the order. An appeal against this order was dismissed by the Commissioner on 26-2-1949. The appellant not having vacated the house as directed, the respondent, on 21-3-1949, applied to the Munsif, first Court, Patna, under Section 17 of the Act III [3] for the execution of the order. On 24-5-1949, the appellant filed an application under Section 47, Civil P.C., challenging the executability of the order against him. This was summarily dismissed by the Munsif. In appeal, the District Judge has made a slight modification in the Munsiffs order. Among other grounds of objection, the appellant objected that he is not the tenant of the respondent in respect of Holding 189, and that it is being sought by mentioning boundaries not included in the order of the Controller to execute the order against Holding 175 which is in his occupation. The District Judge has directed :
"That the respondent will get delivery of possession over the house situated in Holding 189 and not over any house situated in Holding 175 unless he gets the Commissioner to amend his order."
3. Six points have been urged before us: (1) that owing to a delegation of legislative power to the Provincial Government under Sub-section (3) of Section 1, Act III [3] never came into operation ; (2) that under Section 17 of the Act the Small Cause Court and not the Munsif, first Court, in his ordinary civil jurisdiction, can entertain an application for execution of the order ; (3) that the application for execution having been filed within three months of the Commissioner's order it is premature, (4) that the execution cannot proceed against Holding 175 which is in the occupation of the appellant, (5) that the objection under Section 47 should not have been summarily dismissed, and (6) that the respondent by filing a suit for the recovery of arrears of rent in respect of this holding for a period subsequent to the orders of the Controller and the Commissioner has created a new tenancy, which is entitled to protection under Section 11 of Act III [3], and, therefore, the order of eviction is no longer executable.
4. For his first contention, the learned counsel relies on the decision of the Federal Court reported in Jatindra Nath v. Province of Bihar, A.I.R. (36) 1949 P.C. 175 : (50 Cr. L.J. 897) in which their Lordships considered the provisions of Section 1 (3), Bihar Maintenance of Public Order Act, 1947. The duration of that Act was by the statute fixed for one year, but there was a proviso that the Provincial Government may, by notification, on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council, direct that the Act shall remain in force for a further period of one year with such modification, if any, as may be directed in the notification. The power given to the Provincial Government under the Proviso was held to be legislative power and the delegation of it to the Provincial Government to be ultra vires of the Legislature. The impugned portion of Act III [3] is Sub-section (3) of Section 1, the relevant portion of which is as follows:
"It shall remain in force for such period as the Provincial Government may, by notification, fix;
Provided that the Provincial Government may, from time to time, by notification, extend such period."
5. There is, thus a two-fold power given to the Provincial Government. Firstly, it can determine at the initial stage the duration of the Act. Secondly, it may, from time to time, extend that period. According to the learned counsel, the delegation is in both respects delegation of legislative power and, therefore, ultra vires of the Legislature. This view, according to him, follows from the decision of the Federal Court as was held by Meredith J., in the recent Full Bench decision in Kishori Lal v. Debi Prasad, S.A. No. 201 of 1948 : (A.I.R. (37) 1950 Pat. 50 FB). He contends that the further deduction of Meredith J., that Sub-section (3) of Section 1 was separable from the Act and that, in the absence of this provision, the Act would operate as a permanent Act commencing from the publication on 15-3-1947, in the Bihar Gazette of the Governor-General's assent, is incorrect. It is not open, according to the learned counsel, to the Court, by interpretation, to give an Act an effect contrary to its clear intention. He points out that the second proviso contained in Sub-section (3) contemplates an Act which is not permanent, and argues that this Sub-section cannot be ignored so as to make the Act a permanent Act.
6. It is not necessary for me, nor will it be proper to consider whether this contention of the learned counsel has any substance, for the learned counsel concedes that the effect of the decision of the Full Bench is that it is no longer open to this Bench to consider whether the delegation to the Provincial Government of the power to fix the initial duration of the Act is ultra vires or not. My Lord the Chief Justice and Ramaswami J., who were the other members of the Full Bench took a different view from Meredith J. They distinguished the case of Jatindra Nath v. Province of Bihar, A.I.R. (36) 1949 F.C. 175 : (50 Cr. L.J. 897) (ante) and held that the delegation made in Sub-section (3) of Section 1 is intra vires of the Legislature. This is a decision which is binding so far as we are concerned. Therefore, while not conceding the correctness of this decision, the learned counsel has argued the case on the basis that, to the extent of the delegation of authority to determine the initial duration, Sub-section (3) was intra vires. According to him, this is all that the decision of the Pull Bench is an authority for; the question as to whether the delegation contained in the first proviso to Sub-section (3) is ultra vires of the Legislature is still open.
7. To understand the argument of the learned counsel, it is necessary to give a few further facts relating to Act III [3]. By Notfn. No. 6208, dated 15-3-1947, the Provincial Government fixed the initial period of duration as one year. This period was extended for another period of one year by Notfn. No. 5641 dated 1-3-1948, and for a further period of one year by Notfn. No. 7804 dated 7-3-1949. The subsection was then repealed by the Bihar Buildings (Lease, Rent and Eviction) (Amending and Validating) Ordinance, 1949, and, in its place, was substituted the following: "(3) It shall remain in force for five years." According to the learned counsel, the first notification was effective, so that the Act remained in force for one year; the other two notifications were of no effect because the delegation was ultra vires. The Act, therefore, expired at the end of the first year, and, since the Ordinance purports to amend an existing Act, it did not have the effect of revising the Act. In consequence there was no such Act in existence after 15-3-1948, and the orders of the Controller and the Commissioner were without jurisdiction.
8. The point raised by the learned counsel is of interest, but, in my opinion, it is not open to this Bench to investigate it as it is concluded by the decision of the Pull Bench. That decision was given on a reference made in a first appeal arising out of an ejectment suit. The plaintiff in that suit, following an unsuccessful attempt to evict the defendants under the provisions of the House Rent Control Order, 1942, filed a suit in ejectment treating the defendants as trespassers. By that time, Act III [3] had replaced Ordinance II [2] of 1946, which had itself replaced the House Rent Control Order, 1942. The defence set up was that the defendants were tenants within the very wide definition of this term contained in Clause (h) of Section 2 of the Act, and, under the provisions of Section 11 the civil Court has no jurisdiction to evict them. The defendants' case succeeded and the suit was dismissed on 8-4-1948, that is to say, in the period following the initial period of one year of the duration of Act III [3]. Obviously, the defence was of no avail, unless the Act was in existence. The point for consideration before the Pull Bench, therefore, was whether this was so or not. The learned counsel stresses that the decision of the majority of the Pull Bench is to the effect that Sub-section (3) of Section 1 is intra vires of the Provincial Legislature, and he has argued that this decision confines itself to the main provision of the section, that is to say, the delegation of the power to fix the initial period. On a perusal of the judgments it is clear that there is no substance in this argument. Both their Lordships set out the provisions of Sub-section (3) including the first proviso. They mentioned the successive notifications by which the duration was first fixed for one year and then extended from time to time. Then, having referred to the Ordinance of 1949, they came to the definite conclusion that the Act is now an Act whose period is five years from its commencement, that is to say, that it is an Act which is in existence now, so that its protection was available to the defendants in that case. This also was the effect of the decision of Meredith J. according to whose view the Act first took effect as a permanent Act and now, as a result of the Ordinance of 1949, is an Act for five years.
9. It has been suggested that, even if this is the effect of the decision of the Pull Bench, the decision is obiter that it is not covered by either of the two points that were referred to the Pull Bench. The relevant point was thus stated by the referring Bench :
"Whether the annual extension of the Act aforesaid by the Provincial Government is ultra vires of the Legislature."
10. This was a clear reference as regards the first proviso to Sub-section (3) of Section 1. It is unthinkable that the Pull Bench would not decide the very point which was referred to them. But, the argument is, there was no reference so far as the Ordinance of 1949 was concerned. This Ordinance was only promulgated on 12-10-1949, probably after the reference had been made to the Pull Bench. This may explain why it is not mentioned in the order of the referring Bench. Whether it was mentioned in that order or not, a consideration of its effect was obviously necessary. The entire point of the reference was to ascertain whether Act III [3] was still in force and its provisions were available to protect the defendants. In giving its reply, it was surely open to the Pull Bench to determine what was the real question referred and not to consider itself bound by the exact words used in the reference.
11. This brings me to the second point. Section 17 is as follows :
"Every order of the Controller passed under this Act and every order of the Commissioner passed on appeal under Section 18, shall be executed by the Court having jurisdiction to entertain a suit for the recovery of arrears of rent in respect of the building in relation to which the order to be executed is passed, as if such order were a decree passed by such Court."
12. It is pointed out that the tenancy in question was a monthly tenancy, the rental being Rs. 16 per month. It is urged that, under the provisions of Sections 15 and 16, Provincial Small Cause Courts Act, read with Article 8 of the Schedule to the Act, a suit for the recovery of arrears of rent in respect of the building was entertainable by the Small Cause Court and not by the Munsif in his ordinary civil jurisdiction. It is conceded that the Munsif in question is vested with the powers of a Court of Small Causes, and that, in that capacity, he can entertain a rent suit in respect of this building. But it is contended that the execution petition was filed before him in his ordinary jurisdiction and, therefore, is not entertainable.
13. There has been an argument at some length as to the identity of the Court authorised under Section 17 to execute an order under the Act. The particular Court in which a suit for arrears of rent will lie will depend upon the valuation of the suit. Up to Rs. 500 the suit would lie before the Small Cause Court, beyond that it would go to the Munsif, and, if it exceeds the pecuniary jurisdiction of the Munsif, it will have to be filed before the Subordinate Judge. In fact, in the rent suit to which a reference has been made in stating the sixth point, the arrears claimed exceeded Rs. 500 and the suit has been instituted before the Munsif in his ordinary civil jurisdiction. The section does not say how the valuation of the notional suit contemplated by it is to be determined. Are we to take the arrears of rent, actual or as claimed by the landlord, at any particular time, say at the time of the application to the Controller, or at the time of the order which is under execution, or at the time when the application for execution is made? And what is to happen if there are no arrears ? Are we to take a notional sum, say the rent for one month or one year, as being the arrears recoverable? Another possibility is that the section gives the person in whose favour the order stands (for convenience, I will describe him as the decree-holder), a power of election between the two or the three Courts coming within the description in Section 17, a supposition which seems unlikely in view of the words "the Court" used in the section.
14. The difficulty as between the Small Cause Court and the civil Court in its ordinary jurisdiction is, to my mind, only an apparent one. The solution lies in the manner in which the Small Cause Court's jurisdiction has been created in this Province. Our Courts of Small Causes are not Courts established under Section 5, Provincial Small Cause Courts Act; they are the ordinary civil Courts empowered under Section 25, Bengal, Agra and Assam Civil Courts Act, 1887, to exercise the jurisdiction of a Judge of a Court of Small Causes. There is a difference between a Court of Small Causes, a term defined in Section 4, Provincial Small Cause Courts Act, and a civil Court empowered under Section 25, Civil Courts Act. The two are spoken of separately in Sub-section (2) of Section 35, Provincial Small Cause Courts Act, and Section 32 of that Act provides that certain portions of that Act applicable to Courts of Small Causes shall apply to Courts invested with the jurisdiction of such Courts. A civil Court, therefore, which is invested with Small Cause Court powers under Section 25, Civil Courts, Act, does not thereby become a different Court. It is only for the purposes of the Small Cause Courts Act and of the Code of Civil Procedure that it will be treated as being a different Court in each of its two capacities (vide Section 33, Small Cause Courts Act). It follows that, for the purposes of Section 17 of Act III [3] the Munsif, first Court, should be regarded as the same Court whether exercising his ordinary jurisdiction or his Small Cause Court powers. It is in this sense that the Court is spoken of in Section 17, and this explains the further difficulty in the way of the decree-holder which was suggested to us in the course of the argument, namely, that the only Court competent to execute the order is the Small Cause Court and that Court cannot execute the decree because it is a decree for ejectment. If it was necessary, I was prepared, to hold that, when the Legislature in Section 17 indicated to Small Cause Court as the proper Court to execute the order, it thereby empowered that Court to execute that order, although in its ordinary jurisdiction as such Court it is not authorised to execute such an order. It is not necessary, however, to go so far. It is unlikely that, with Civil Courts exercising such jurisdiction available for the purpose, the Legislature would delegate to Small Cause Courts the duty of executing orders of eviction under Section 11 or enforcing the restoration of amenities under Section 10. This consideration is, on the contrary, a further reason for holding that the Court indicated in Section 17 is the civil Court exercising its ordinary jurisdiction.
15. The difficulty as regards the choice between the Court of the Munsif and that of the Subordinate Judge, within whose local jurisdiction the building in question lies, is not likely to arise where the rent of the building is so small that the accumulated arrears for the whole period of limitation for the filing of such a suit will not exceed the jurisdiction of the Munsif. The solution of the difficulty in cases where such a difficulty does arise seems to me to lie in the application of the principle which has found statutory sanction in Section 15, Civil P.C. namely, that the superior Court should be protected from overcrowding: Mohini Mohan v. Kunjabehari, A.I.R. (30) 1943 Cal. 450 : (209 I.C. 225). All that Section 17 speaks of is "the Court having jurisdiction to entertain a suit for the recovery of arrears of rent in respect of the building." However high the rent may be, it is always possible that only a small portion of that rent is in arrear. Therefore, the Court of the Munsif will always come within this description. The section does not indicate that the notional rent suit is to have any particular valuation. There is no reason, therefore, why the Court before which execution is sought to be taken out should be required to enter upon an investigation as to existing arrears at any particular moment of time or to assume that the section requires it to proceed on a notional valuation. All it has to ask is whether it has jurisdiction to entertain "a suit" for the recovery of arrears of rent in respect of the building, and, if it has, whether it is the Court of the lower jurisdiction which can do so. If it is, then it is a Court which has jurisdiction to execute the order.
16. The Munsif, first Court, was in the present case the Court of the lower jurisdiction in which a suit for arrears of rent of the building would lie. Hence, the execution petition was rightly presented in this Court.
17. There is no force in the third contention. The Controller gave the appellant three months within which to vacate the premises. It was open to the Commissioner, if he thought it proper, to extend this period. He has not done so and has allowed the order of the Controller to stand as it is. I see no reason to hold, in the circumstances, that the appellant is entitled to a further period of three months from the date of the Commissioner's order before he can be evicted. The petition in execution is not, therefore, premature.
18. The fourth and the fifth points are interconnected. There is no authority for the proposition that an application under Section 47 should not be summarily dismissed. It is always open to a Court to which a petition is presented to consider it on its merits at the time of the presentation. If it is clear that the contentions raised in the petition have no merits, it is not right that public time and money should be wasted and the opposite party harassed and put to additional expense by deferring the passing of orders until both parties have been heard at length. It is necessary, however, that the party filing the application should have a full hearing on the points raised and where necessary, should be given an opportunity of establishing them. So far as an objection concerns a pure matter of law, it is possible that the matter may be so clear that the Court will have no difficulty in coming to a decision on the point at once. "Where considerations of fact arise, this will not generally be possible. In the present case, there was such a consideration, namely, that, according to the appellant, the order relates to Holding 189 and the respondent is trying to execute it in respect of Holding 175. The orders of the Controller and the Commissioner, which are on the record, mention merely the number of the holding and give no boundaries. The execution petition gives certain boundaries which, according to the appellant, are the boundaries of Holding 175. Without some sort of investigation, it is not possible to deal with the objection of the respondent. It is necessary that the executing; Court should proceed only against the building in respect of which the order under execution was passed. Had the Munsif investigated the matter, the difficulty would have been cleared up at once. As it is, in the absence of any evidence, the District Judge gave the only directions which were open to him, namely, that the order be executed strictly in accordance with its terms. During the hearing we were informed that the decree-holder has since got the order amended. In the circumstances, it is not necessary for us to interfere with the order passed by the Courts below.
19. This brings me to the point about the-filing of the suit for recovery of rent. The application for execution was made on 21-3-1949. In May of the same year, the respondent filed: Money Suit No. 435 of 1949 in the Court of the-same Munsif in respect of Holding 189, seeking recovery from the appellant of arrears of rent from May 1946 to April 1949 amounting to Rs. 576. It is contended that this suit constitutes the appellant a statutory tenant under Act III [3] and, therefore, he is entitled to claim protection from eviction under the Act. The relevant provision is in Section 11 and is as-follows:
"Notwithstanding anything contained in any agreement or law to the contrary .... where a tenant is in possession of any building, he shall not be liable to-be evicted therefrom, whether in execution of a decree or otherwise."
20. It is obvious that this protection cannot avail the tenant against an order of eviction passed under the Act itself. The contention of the learned counsel, however, is that, by filing the rent suit, a new tenancy has come into being and, therefore, the tenant can claim protection. The conception of a tenant as conceived by this Act is entirely novel and not in keeping with the ordinary ideas as to what a tenant is. I reproduce the definition below :
" 'Tenant' means any person by whom or on whose account, rent is payable for a building and includes a person continuing in possession after the termination of the tenancy in his favour."
21. According to our ordinary conception of a tenant, he ceases to be a tenant when the tenancy terminates. If he continues to occupy the tenancy after the termination, he does so as a trespasser and continues to be a trespasser, however long he remains in possession after this period, unless the landlord, by accepting rent or by otherwise indicating his recognition of the relationship of landlord and tenant between them, brings a tenancy into being between them. Under Act III [3], however, no such thing is necessary; even after the tenancy has terminated, the lessee is still a tenant provided he remains in possession. This is so even after the passing of an order under Section 11 for vacating the building in favour of the landlord. The order of eviction given by the Controller is also different in nature from an order of eviction passed by a civil Court, It is based on grounds which do not necessarily terminate the tenancy, for instance, for non-payment of rent or because the landlord requires the building for his own occupation whereas the civil Court ejects a lessee as a trespasser after the tenancy between him and the lessor has been terminated. In the present ease, therefore, the mere fact that an order was passed against the appellant to evict the building would not necessarily terminate his tenancy and the suit to recover rent would not bring a new tenancy into being.
22. The principle underlying the waiver of forfeiture of a tenancy is that the lessor by some act has indicated an intention to treat the lease as still subsisting. It is illustrated by Section 112, T.P. Act, which provides that a forfeiture under Clause (g) of Section 111 of the Act is waived by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting. There is a relevant exception to this section, namely, where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture. Apparently, once the lessor has made his intention of terminating the relationship clear by instituting a suit for ejectment, his acceptance of rent is not to be interpreted in the manner indicated in the section. This exception is not extended by Section 113, T.P. Act, to waiver of a notice to quit, but the view has been expressed by a Judge of this Court that the inclusion in a suit for ejectment of a claim to such rent would not have the effect of waiver: Shah Wali Ahmad v. Hussaini Begam, 2 Pat. L. J. 595 : (A.I.R. (4) 1917 Pat. 469). These sections are concerned with waiver before the landlord has obtained a decree for ejectment. Here, we are concerned with a case where the landlord has actually got an order for ejectment and has filed a petition for execution in order to give effect to it. Act III [3] does not contain any special provisions to enable the landlord to recover his arrears of rent. He has for this purpose to go to the civil Courts and he has done so in the present case. I have indicated above that the legal position of the tenant after the Controller has passed an order under Section 11, directing him to vacate the building is uncertain. He may or may not continue as a tenant. In these circumstances, if the landlord, in his suit, describes as rent the sum which he claims to recover from him on account of his occupation of the building subsequent to the order of the Controller, it cannot be said that he shows thereby an intention to continue the tenancy and to waive his rights under the order of the Controller. A copy of the plaint in the suit was produced before us, and it certainly does not indicate any such intention.
22A. On the above grounds, the appeal fails and must be dismissed with costs.
Das, J.
23. I agree with my learned brother that this appeal must be dismissed with costs.
24. As to the first point of delegated legislation, I am clearly of the opinion that the Pull Bench decision, Kishori Lal v. Debi Prasad, (A.I.R. (37) 1950 Pat. 50 F.B.) referred to by my learned brother covers the point now raised by learned counsel for the appellant. It would, I think, serve no useful purpose to repeat what my learned brother has said with regard to it.
25. I should like to say a few words about, the second point which relates to the interpretation of Section 17, Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, hereinafter to be referred to as Bihar Act III [3] of 1947. The particular words used in the section which have given rise to difficulties are "shall be executed by the Court having jurisdiction to entertain a suit for the recovery of arrears of rent in respect of the building in relation to which the order to be executed is passed, as if such order were a decree passed by such Court." The difficulties are these. It appears that there are three kinds of orders which may be passed by the Controller or the Commissioner on appeal, where the question of execution of the order may arise. Under Section 9, the Controller may direct, on application by the tenant, that;. certain repairs be made by the tenant and the cost thereof may be deducted from rent which is payable by him. Under Section 10, the Controller may make an order directing the landlord to restore amenities which the landlord has without just or sufficient cause cut or withheld. Under Section 11, the Controller may pass an order of eviction directing the tenant to put the landlord in possession of the building. With regard to, at least, two of the aforesaid orders, namely, the order directing the landlord to restore amenities and the order directing the tenant to put the landlord in possession, the question of execution of the order will undoubtedly arise. The only section in Bihar Act III [3] of 1947 relating to execution is Section 17. That section seeks to indicate the Court which shall execute every order of the Controller passed under the Act and the order of the Commissioner passed on appeal under Section 18. In terms, the section states that the order shall be executed by the Court having jurisdiction to entertain a suit for the recovery of arrears of rent in respect of the building in relation to which the order to be executed is passed, as if such order were a decree passed by such Court. The first difficulty that arises is that there may be cases where in fact there are no arrears of rent. The second difficulty is even when there are arrears of rent, which amount should be taken for the purpose of determining the Court of execution, the amount of arrears at the date of the order of the Controller or the amount of arrears at the date of the order of the Commissioner on appeal, or the amount of arrears at some earlier date, say the arrears outstanding at the date when the application for the order was made. The jurisdiction of a Court is of various kinds, personal, territorial and pecuniary. There will be no difficulty in determining the territorial jurisdiction; but there may be difficulty in determining the pecuniary jurisdiction, and the Court will be different according as one view or other of the views mentioned above is taken. I have been at some pains to find out one solution which would meet all difficulties; but Section 17 is so 'worded that it is difficult to get one solution for all the difficulties which may arise.
26. Personally, I think that as between the Court of Munsif and that of a Subordinate Judge the determination will depend on the amount of arrears, and that amount must be the amount outstanding at the date of the order which is under execution. If the amount as beyond the pecuniary jurisdiction of a Munsif, the order must be executed by the Subordinate Judge ; if the amount is within the pecuniary jurisdiction of a Munsif, the order will be executed by the. Munsif. The question may be asked--what about cases where there are no outstanding arrears of rent ? In such cases, I think, a notional arrear has to be resorted to in order to give effect to the words used in Section 17. The arrears then would be notionally at least, one month's rent if a monthly tenancy or one year's rent, if an annual tenancy, or periodical rent if the tenancy is created for a particular period. Without; any such notional arrear it will be impossible to determine to which Court to go for execution of the order.
27. Where, however, the amount of arrears, either actual or notional, is within the pecuniary jurisdiction of a Munsif, I do not think any difficulty is created. I agree with my learned brother that Section 33, Provincial Small Cause Courts Act, solves the difficulty. That section states that a Court invested with the jurisdiction of a Court of Small Causes with respect to the exercise of the jurisdiction, and the same Court with respect to the exercise of its jurisdiction in suits of a civil nature which are not cognizable by a Court of Small Causes, shall, for the purposes of the Small Cause Courts Act and the Code of Civil Procedure, be deemed to be different Courts. It is worthy of note that they will be different Courts only for the purpose of the two Acts--the Provincial Small Cause Courts Act and the Code of Civil Procedure. I do not think that Section 17, Bihar Act III [3] of 1947, contemplates that a Munsif who is vested with the powers of a Small Cause Court under Section 25, Bengal, Agra and Assam Civil Courts Act, 1887, and the same Munsif who exercises jurisdiction in suits of a civil nature not cognizable by a Court of Small Causes, shall for the purposes of Bihar Act, III [3] of 1947, be deemed to be different Courts. The Legislature must have been aware of the provisions of Section 33, Provincial Small Cause Courts Act. It is to be observed that the words used in Section 33 are "be deemed to be different Courts" which mean not that they are different Courts, but that they shall be deemed to be different Courts for a limited purpose only. If the intention was to treat them as different Courts for Section 17, Bihar Act III [3] of 1947, the Legislature would have said so in clear terms. There is, therefore, no antithesis between a Munsif exercising the powers of a Small Cause Court and a Munsif exercising ordinary jurisdiction in suits of a civil nature not cognizable by a Court of Small Causes, so far as the provisions of Section 17, Bihar Act III [3] of 1947, are concerned.
28. Therefore, in either view of the matter the order in the present case was properly executed in the Court of the first Munsif, Patna, who had both territorial and pecuniary jurisdiction. I have examined the order of the Controller dated 18-9-1948, as also the order of the Commissioner on appeal dated 26-2-1949. I think it is the order of the Commissioner which is in execution, and on the date of that order the arrears amounted to more than Rs. 500. Under Section 15 (2), Provincial Small Cause Courts Act, the Small Cause Court had no jurisdiction as the value exceeded Rs. 500. This would be the result if the view is taken that there is a distinction between the Munsif exercising Small Cause Court powers and the Munsif not exercising such powers. I do not, however, think there is any such distinction, and if there be no such distinction, then clearly enough the proper Court of execution of the order of eviction was the Court of the first Munsif, Patna.
29. I agree with my learned brother with regard to points 3, 5 and 6, and have nothing useful to add. With regard to point 4, I do not think there is any difficulty. It was stated at the Bar that the order in question had been amended so as to relate to Holding 175. If such an amendment has been made, then there is no question of making any further enquiry as to whether Holding No. 189 was the old number of the holding which is now 175 as is stated by learned counsel for the respondent. If no amendment has been made, then the order of the learned District Judge makes it quite clear that the execution will be in respect of the holding mentioned in the order. The respondent has not made any grievance of the order of the learned District Judge, and I fail to see how the appellant can make a grievance of it.