NALINAKHYA BYSACK versus SHYAM SUNDER HALDAR AND OTHERS

' ,. --

who is treated as agent under section 43 may not fall 19S3 within any of the several categories of income, profits T · · ' 4" Th 1 urnar or gams re erre to m section :6. anguage Mm·rison ct co., of section 43 will also attract the provisions of Ltd. section 40, for that section also contemplates v. person who is entitled to receive on behalf of the Commissioner [0]1 non-resident any income, profits and gains charge-l~~cotnBie-tao:,t . . 'es enga • le un er this Act an may even attract t provi-· sions of section 4(l)(a). In our opinion there is no Das J. warrant for the contention that an appointment of person as statutory agent under section 43 only attracts section 42 for such appointment is for all purposes of the Act and not only for the purposes of section 42.

In our judgment, for reasons stated above, the

answers given to the questions by the High Court, in so far as they relate to the assessment of income-tax with which alone we are now concerned, are correct and this appeal must be dismissed with costs.

Appeal dismissed.

Agent for the appellant: P. K. Mukherii. Agent for the respondent: G. H. Raiadhyaksha.

N ALINAKHYA BY SA OK

1959 Jan. 29.

SHYAM SUNDER HALDAR AND OTHERS. [MEHR CHAND MAHAJAN, DAS, and BHAGWATI JJ.]

West Bengal Premises Rent Control (Temporary Provisions) Act (XVII of 1950), s. 18 (I)- T-Vhether applies to orders for re-covery of possession made by Presidency Small Cause Court-" Decree for recovery of possession "-Construction of stat1ites-Mistakes of legislature.

The expression "decree for recovery of possession" in· s. 18 (1) of the West Bengal Premises Rent Control (Temporary Provi-sions) Act (Act XVII of 1950) does not include an order for re-covery of possession made under s. 43 of the Presidency Small Cause Courts Act, 1882, and person against whom an order fo1·

Nalinakhya Bysaclc v. Shyam Sunder Haldar. and Others.

534 SUPR:E:ME dOURT REPORTS (1953]

recovery of possession has been passed under s. 43 of the Presid-ency Small Cause Courts Act, 1882, is not therefore entitled to claim relief under the provisions of s. 18 (1) of Act XVII of 1950. •Bai Bahadiir Atiilya Dhan Banerjee v. Siidhangsu Bhiisan Dutta([l951] 55 0.W.N. 343), Dhanesh Prakash Pal v. Lalit Mohan Ghosh ([1951] 55 O.W.N. 347), Mohan Lal Khettry v. Ohuni Lal Khettry ([1951] 55 O.W.N. 421) Jethmull Sethia v. Aloke Ganguly ([1951] 55 O.W.N. 563), Iswari Prasad Goenka v. N. R. Sen ([1951] 55 O.W.N. 719) overruled.

In construing statute it is not com:Petent to any court' to proceed upon the assumption that the Legislature has made mistake and even if there is some de:fect in. the phraseology used by the Legisla~ure, the Court cannot aid the defective Phrasing of an Act or add and amend, or by construction, make up deficiencies which are left in the Act.

Oom1nissioner for Special Purposes of Income Tax v. Pemsel ([1891] A.O. 531); Crawford v. Spooner ([1846-51] 4 l\LI.A. 179) and Hansraj Gupta v. Official Liqi<idator of Dehra D"n Mi<ssourie Electric Tramway Go. Ltd. ([1933] 60 I.A. 13) referred to.

CrvIL APPELLATE JuRISDIOTION: Civil Appeal No. 96 of 1952. Appeal from the Judgment and Order dated the 9th April, 1951, of the High Court of Judi-cature at Calcutta (Sen and Chunder JJ.) in Civil Rule No. 1038of1950 arising out of the Order dated the 4th July, 1950, of the Court of the 6th Judge, Presidency Small Causes Court, Calcutta, in Eject-ment Suit No. 6571 of 1949.

Arun Kumar Dutta and Shivdas Ghosh for the -. appellant.

Panchanan Ghose (S. P. Ghose, with him) for the respondent.

1053. January 29. The .Judgment of the Court was delivered by .

, DAS J.-This appeal is directed against the judg-ment and order of Bench of the Calcutta High Uourt passed on the 9th April, 1951, iu Civil Rule No.1038 of 1950. The facts leading up to this appeal may be shortly stated as follows :

The respondents were, according to the appellant, monthly tenants under the appellant in respect of three rooms, one kitchen, one privy and bathroom on the groundfioor of premises No. 6, Roy Began

S.C.R. SUPREME COURT REPORTS

Street, Calcutta, at monthly rent of Rs. '35 payable according to the Bengali calendar month. On the 29th Baisakh 1356 B. S. the appellant gave notice to the respondents to quit the premises on or before the 7th Jaistha 1356 B.S. The respondents having failed to comply with tqe notice the appellant on the 1st June, 1949, instituted proceedings under Chapter VII of the Presidency Small Cause Courts Act, 1882, for the eviction of the respondents from the demised pre-mises on the allegation that the tenancy had deter-mined ipso fact.J for non-payment of rent for three consecutive months in terms of section 12 (3) of the West Bengal Premises Rent Control Act, 1948. The respondents on the 6th July, 1949, deposited into Court Rs. 233-7-0 and on the 8th July, 1949, entered appearance and filed written statement denying that they were in arrears with their rent or that their tenancy had been ipso facto determined. The said proceedings came up for hearing on the 27th Febru-ary, 1950, and the respondents not having appeared it wa·3 heard ex parte and an order was made directing the delivery of possession of the premises to the appellant on the 3rd May, 1950. In the meantime on the 31st March, 1950, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (Act XVII of 1950) came into force. On the 29th May, 1950, the respondents filed an application in the trial Court under section 18 of the said Act for vacating the order for possession. On the 5th June, 1950, the trial Court made an order upon terms which, as set out in the respondents' case, are as follows :

Nalinakhya

By sack

Shyam Sunder

Haldar and Others.

Das J .

"5 .. 6-50. On consent all arrears of rent up to J aistha 1357 B.S. with interest at 9% p.a. along with the costs of the suit including half Pleader's fee amounting to Rs. 399-3-0 on consent in total to be paid by the defendants to the plaintiff by 4-7-50. The date fixed for payment arid final orders. All proceed-ings :a.nd execution stayed until further orders."

The agreed amount having been paid the order for possession was vacated on the 4th July, 1950. The

The

' '536 SUPREME COURT REPORTS [1953]

order as recorded in the order sheet reads as follows:-

Nalinakhya Bysaak v. Shyam s,.nder Haldai· and Others.

• "4-7-50. Parties present as before. Defendant carries out the order of the learned Court, dated 5th June, 1950. Money deposited in Court as ordered. Accordingly order of decree for possession \s vacated. Money in Court is allowed to be withdrawn by the plaintiff's pleader under power."

Shyam s,.nder June, 1950.

Das J.

The appellant on the 1st August, 1950, moved the High Court under section 115 of the Code of Civil Procedure for setting aside the order of the trial Court passed on the 4th July, 1950. While the appli-cation was pending before the High Court the West Bengal Premises Hent Control (Temporary Provi-sions) (Amendment) Act, 1950 (Act LXII of 1950) came into force on the 30th November, 1950. On the 9th April, 1951, the High Court following an earlier .decision of another Bench of that Court in Rai Baha-dur Atulya Dhan Banerjee v. Sudhangsii Bhusan Dutta(') dismissed the. application. On the 30th November, 1951, the High Court granted leave to the appellant to appeal to this Court and issued certificate under the provisions of article 133 (1) (c) of the Constitution of India ..As already stated, the proceedings out of which 'the present appeal arises were instituted under Chap-ter VII of the Presidency Small Cause Courts Act, 1882. Chapter VII of that Act which is intituled "Recovery of Possession of Immovable Property" allmvs the· landlord, in certain circumstances, to "apply to the Small Cause Court for summons against the occupant calling upon him to show cause on day therein appointed why he should not be compelled to deliver up the property." Section 43 provides that if the occupant does not appear at the time appointed or show· cause to the contrary, the applicant landlord shall, if the Court is satisfied that he is entitled to apply under section 41, be entitled to an order addressed to Bailiff of the Court directing

(I) (1951 J 55 C.W.N. 343·

S.C.R. SUPREME COURT REPORTS

him to give possession of the property to the appli-1953 cant on such date as the Court thinks fit to name in Nalinakhya such order. Although under the rules framed under Bv,,ack the Act this application under section 41 is initiated v. by plaint there is no dispute that the proceeding is Shyam Sunde,. not 'a suit and the order for delivery of possession Haldar and Others. does not strictly spea kmg [. ]amount to ecree or recovery of possession. [See Rai Meherbai Sorabji Das J. Master v. Pherozshaw Sorabji Gazdar([1 ]) ]. Indeed, section 19 of the Act peremptorily provides, inter alia, that the Small Causes Court shall have no jurisdic-tion in suits for recovery of immovable property. The only question for consideration, therefore, is whether section 18(1) of Act XVII of 1950 applies to an order for possession made under section 43 of the Presidency Small Cause Courts Act, 1882.

Section 18(1) and the marginal note to that section run as follows :

"18. (1). ·where any decree for recovery Gf posses-

Power of Court to sion of any premises has been made rescind or vary on the ground of default in payment or decree~ to give and rehef in ~rdei:s of arrears of rent under the provisions . rending suits in of the vVest Bengal Premises Rent certaincases. Control (Temporary Provisions) Act, 1948, but the possession of such premises has not been recovered from the tenant, the tenant may apply to the trial Court within sixty days of the coming into force of this Act for vacating the decree for ejectment against him and within such period no order for delivery of possession shall be made by any Court, nor if an application is made by the tenant under this sub-section till the application has been dismissed under sub-section ( 4)."

In Rai Bahadur Atulya Dhan Banerjee v. Su-dhangsu Bhu,san Dutta it was held that the ex-pression "decree for recovery of possession" in sub-section (1) of section 18 includes an order for re-covery of possession made under Chapter VII of the Presidency Small Cause Courts Act, 1882. This case

(l) (1927) I.L.R. 51 Born, 385, (2) (1951) 55 C.W,N. ~i3•

Nalinakhya Bysack v.

Shyam Sunder Haldar and Others. Das J.

was followed, without further discussion, by different Benches of the same High Court in Dhanesh Prakash Pal v. Lalit Mohan Ghose ('), Mohan Lal Khettry v. C"kuni Lal Khettry ('), Jethmull Sethia v. Aloke Ganguly (') and also in the present case. Finally, the question was again considered by larger Bench of the Calcutta High Court in Iswari Prasad Goenka v. N. R. Sen('). The learned Judges agreed with the earlier decision in Rai Bahadur Atulya Dhan Banerjee v. Sudhangsu Bhusan Dutta ([5]). After hearing the able arguments advanced before us and giving the most anxious consideration to the decisions in the cases mentioned above we are unable to accept the conclusion arrived at by them in those cases as correct. Apart from the question whether the marginal note can at all be refened to in construing the provisions ol section of an Act, it is quite clear, on the authorities, that the marginal note cannot control the meaning of the body of the section if the language employed therein is clear and unambiguous. If the language of the section is clear then it may be that there is an accidental slip in the marginal note rather than that the marginal note is correct and the accidental slip is in the body of the section itself. Take for instance section 11 of the West Bengal Premises Rent Control Act, 1948. The sec-tion says that notwithstanding anything contained in certain Acts specified therein, "no order or decree for the recovery of possession of any premises shall be made so long as the tenant pays to the full extent the rent allowable by this Act and performs the condi-tions of the tenancy." The marginal note to that section simply says: " No order for ejectment ordinarily to be made if rent paid at allowable rate." In the marginal note the words "or decree" do not find place at all, fact which clearly shows that the marginal note was not prepared carefully and that it was not sure guide in the matter of the

(1) (1951) 55 C.W.N. 347· (4) (195r) 55 C.WN. 719.

(5) (1951) 55 C.W.N. J43·

' (2) (1951) 55 C.W.N. 421.

(3) (r951) 5~ C.w N. 563.

interpretation of the body of the section. We have, therefore, to r'ead the words used in the body of sec-tion 18(1) of the 1950 Act and if we find the meaw:i-ing clear and unambiguous, the marginal note should not be permitted to create an ambiguity in the section.

Section 18 (1), as it stood on the 4th July, :1.950, when the order for possession passed on the 27th February, 1950, was vacated, gave relief to tenant aga.inst whom any decree for recovery of possession of any premises had been made on the ground of default in payment of arrears of rent under the provisions of the 1948 Act, provided that the posses-sion of the premises had not been recovered from him. The relief given by this section is clearly against decree for possession which "has been made" under the 1948 Act. The language of section 18 (1) of the 1950 Act and in particular the specific reference therein to the Act of 1948 take us back to that Act. Section 11 of the 1948 Act refers "to order or decree for the recovery of possession of any premises". The reference in the non obstante clause of section 11 to the Presidency Small Cause Courts Act, 1882, clearly indicates that the order for the recovery of possession refers to orders passed under section 43 of the last mentioned Act on applications made under section 41 thereof. Section 11 speaks of both "order" for the recovery of possession and " decree " for the recovery of possession. Therefore, there can remain no manner of doubt that the two words " order " and " decree " in section 11 connote two different things. '.l'his is further made clear by the use of two words "suit" or "proceeding" in section 12 of the 1948 Act. I~ is, thus, quite clear that in the 1948 Act "suit" is different from "pro-ceeding" and "order" is different from "decree". Therefore, in construing the 1948 Act there can be no occasion for giving any extended meaning to the word" decree" so as to include "order", for the two are distinctly and separately provided for. Section 18 (I) of Act XVII of 1950 does not refer to "decree"

Na!inakhya Bysack

Shyam Sunder Haldar and Others.

Das J.

Nalinakhya Bysack v.

Shyavi Sunder Haldar and OtherR,

Das J.

simpliciter but to "auy decree for recovery of posses-sion of any premises on the grouud of default in pay-ment of arrears of rent under the pravisions of" the 1948 Act. Turning then to that Act we find that decree for possession on the ground of non-payment of rent under that Act is treated distinctly from an order for possession on the ground of non-payment of rent under the same Act. decree for the recovery of possession within the meaning of that Act can, therefore, only mean decree in snit for recovery of possession and eannot cover an order for posses-sion passed under section 43 on an application made under section 41 of the Presidency Small Cause Courts Act. In short, section 18(1) of Act XVII of 1950 expressly attracts the 1948 Act and under that Act there can be no necessity for giving an extended meamng . t o th wor "d ecree , or " " or er " . 1s sepa-rately dealt with in that Act.It is said that whatever the word "decree" may mean in the 1948 Act it is immaterial for the purposes of construing Act XVII of 1950 for the Court has to ascertain the meaning of the word ''decree" as u"sed in section 18(1) of the last mentioned Act. It has been already stated that the language of section 18 (1) attracts the relevant provisions of the 1948 Act and, therefore, the word "decree" occurring in section 18(1) must necessarily be construed in the light of the 1948 Act and it is clear that so construed it can-not cover "order" for possession made under Chapter VII of the Presidency Small Cause Courts Act. Apart from that consideration, the question still remains: What does the word "decree" in section 18 (1) mean? 'fhat word has not been defined either in the 1948 Act or in Act XVII of 1950 or in the Bengal General Clauses Act. '!.'hat word, however, has been defined in the Code of Civil Procedure, 1908, and, as there defined, it means the formal ex.pression of an adjudi-ca.tion which determines the rights of the parties with regard to the matter in controversy in the suit which last word prima facie means civil proceeding initiated by plaint (secti<;m 26 1J,nd Order IV, rule 11

S.C.R. SUPREME COURT REPORTS 54i

Civil Procedure Code). This is the ordinary accepted 1953 meaning of the word " decree" and if that meaning Nalinakhya is attributed to the word " decree " occurring in By sack section 18(1) then clearly it cannot cover an order Jor v. possession passed under section 43 of the Presidency Shyam Sunder Small Cause Courts Act on an application made under Haldar seotion 41 of that Act. and Others.

It is, however, urged that the word " decree" in section 18 (1) of Act XVII of 1950· should not be read in its strict sense. It is said that although the word "suit" ordinarily means proceeding instituted by plaint, it is also used in wider sense so as to cover proceedings which are not instituted by pla~nt and, therefore, an adjudication in those pro-ceedings which are also suits in that extended mean-ing may well be said to be "decree". Reference is made to the explanation of sub-section (1) of section 12 of Act XVII of 1~50, which expressly provides that in the proviso to sub-section (1) the term "suit" does not include proceeding under Chapter VII of the Presidency Bmall Cause Courts Act, 1882, and it is urged that this explanation inferentially means that tlie word "suit" occurring in the other sections of Act XVII of 1950 may include proceeding under Chapter VII of the Presidency Small Cause Courts Act and, therefore, an order made on such proceed-ing may be described as an adjudication in suit and, therefore, decree. It is not quite clear how this inference, even if it can be properly drawn, can have any bearing on the construction of the word "decree" in sub-section (1) of section 18 of the Act XVII of 1950 where the word " suit" is not used at all. Be that as it may, the argument founded on the aforesaid inference sought to be drawn from the explanation to section 12 (1) of Act XVII of 1950 will clearly appear to be untenable when the provisions of that Act are closely scrutinised, for it will then be found that the word "suit" does not and was not intended to cover any proceedin'g under Chapter VII of the Presidency Small Cause Courts Act. Section 12 (1) prohibits the making of any order or decree for the

Das J.

Nalinakhya Bysack v. Shyam Sundllr Haldar and Others. Das J.

recovery of possession by any Court, notwithstanding anything to the contrary in any other Act or !:ow. This sub-section (1), standing by itself, means that no oriler for possession can be passed by the Presidency Small Cause Court notwithslanding the Presidency Small Cause Courts Act and no decree for possession can be made by any Court in any suit notwithstanding the 'rransfer of Property Act or the Contract Act or the Code of Civil Procedure, 1908. The proviso to sub-section (1), however, saves "any suit for decree for such recovery of possession" against certain tenants or in certain circumstances. Therefore, it is clear that the proviso to sub-section (1) of section 12 does not save proceedings under Chapter VII of. the Presidency Small Cause Courts Act. The explanation to that sub-section stating that the word "suit" in the proviso does not include proceeding under Chapter VII of the Presidency SmaU Cause Courts Act appears to have been inserted out of abundant caution to put the position beyond any doubt. Section 16 of Act XVII of 1950 provides that notwithstanding anything contained in any other law suit by land-lord against tenant for recovery of possession "of any premises to which the Act applies shall lie to the Courts as set out in Schedule and that no other Court shall be competent to entertain or try such suit. According to Schedule B, where the premises are situate on land wholly within the ordinary original civil jurisdiction of the Calcutta High Court aud when the rent does not exceed Rs. 500 per month, the Chief Judge of the Calcutta Court of Small Causes shall entertain and try such suit .as Court of the District Judge, provided that he shall be entitled to transfer the suit to any other Judge of that Court who shall try it as Court of the Subordinate Judge. The result of sections 12 and 16 read with Schedule 'B is for all practical purposes to suspend the opera-tion of Chapter VII oft.he Presidency Small Cause Courts Act in Calcutta for no one will take proceed-ings in which no order can be made. The effect of those sections is to confer new jurisdiction on the

. ~ -. . . .. S.C.R. SUPREME COURT REPORTS

Chief Judge of the Calcutta Small Cause Court to 1953 entertain and try suits by landlords -against tenants for recovery of possession of premises situate within Nalinakhya By sack the ordinary original ci vii ju.risdiction of the Calcu1'ta v. High Court when the monthly rent does not exceed Shyam Sundei· Rs. 500. Thus after Act XVII of 1950 came into Haldar force the Calcutta Small Cause Court has ceased to and Others. have any power to pass an order for possession under Das J. Chapter VII of the Presidency Small Cause Courts Act and the Small Cause Court of Calcutta can, under that Act, only pass decree for possession in suit which is saved by the proviso to sub-section (1) of section 12 and with regard to which special jurisdiction is conferred on that Court by section 16 of that Act. That being the position, the word" suit " in none of the sections of Act XVII of 1950 can be said to have been used as including proceeding under Chapter VII of the Presidency Small Cause Courts Act. Therefore, the reasoning advanced in support of attributing an extended meaning to the word "suit" and then inferentially to the word "decrne" in section 18 (1) cannot be sustained.It is next ·argued that if the word "decree" is construed strictly it will give rise to startling results in that poor tenants against whom orders for posses-sion had been made under the 1948 Act will be deprived of the benefit of section 18 (1) while the wealthy tenants paying rents above Rs. 500 per month will get relief under that section and this will frustrate the i1:1tention of the Legislature. This argu-ment proceeds on the assumption that the Legislature intended .to give relief to all tenants against whom orders or decrees for possession had been made. The language of section 18 (1) clearly shows that the intention of the Legislature was to give relief only to certa;in tenants in certain circumstances. In the first place relief is given only with respect to decree for possession made on the specified ground and not with respect to decree for possession made on any other ground. In the next place reliHf is given only when the possession of the premises in respect of which

SUPREME COURT REP'ORTS [1953j

decree for possession had been made had not been made over by the tenant. Thus tenants against whom decree for possession had been made on grounds other than the.ground specifi~d in the sub-section and even tenants against whom decree for possession had been made on the specified ground but who had, voluntarily or otherwise, delivered posses-sion of the premises get no relief under section 18 (1). An order for possession i.s niade by the Presidency Small Cause Court under Section 43 on summary application under section 41 and the order directs the Bailiff of the Court to deliver possession to the applicant. This'order for the recovery of possession which under section 37 of the Presidency Small Cause Courts Act is final and conclusive and from which there is no appeal or new trial under section 38 of that Act does not ordinarily take much time to be obtained or to be carried out and certainly much less than what is taken to obtain decree for possession in snit and to execute such decree, because both the decree for possession in suit arid the order for execution thereof are subject to appeal. The Legis-lature may well have thought that cases where orders for possession had been made under Chapter VII of the Presidency Small Cause Courts Act with respect ' to premises which were situate within the small area of the ordinary original civil jurisdiction of the Calcutta High Court and which, in spite of such orders, were sti]j in the possession of the tenants at the date of the commencement of Act XVII of 1950 would be few in number as compared to the number . of cases where decrees for possession had been made with respect to premises which were situate within very much larger area and which were still in the possession of the tenants and, therefore, did not think fit to provide for those few cases. It, must always be borne in mind, as said by Lord Halsbury in Commissioner for Special Piirposes of Income Tax v. Pemsel ('),that it is not competent to any Court to proceed upon the assumption that the Legislature (I) L, R. [t891) A. C, 531 at p. 5+9·

Nalinakhya By sack v. Shyani Sunder Haldar and Others.

Das·J.

S.C.R. SUPREME COUR'r REPORTS

has made mistake. The Court must proceed on the 1958 footing that the Legislature intended what it has Nalinakhya said. Even if there is some defect in the phraseology Bysack . used by the Legislature the Court cannot, as poinwed v. out in Crawford y. Spooner (1), aid the Legislature's Shyam Sunder defective phrasing of an Act or add and amend or, Haldar by construction, make up ciencies w fi [· ]· h' 10 are l t and Others. in the Act. Even where there is casus omissus, it is, Das J . as said by Lord l:tussell of Killowen in Hansraj Gupta v. Official Liquidator of Dehra Dun-Mussoorie Electric Tramway Co., Ltd. ([2]), for others tlian the Courts to remedy the defect. In our view it is uot right to gi.ve to· the word " decree" meaning other than its ordinary accepted meaning and we are bound to say, in spite of our profound respect for the opinions of the learned Judges who decided them, that the several cases relied on by the respondent were not correctly decided.

Reference was made, in course of argument, to section 6 of the West Bengal Act LXII of 1950. That section refers to orders or decrees made between the commencement of Act XVII of 1950 and Act LXII of 1950, i.e., between the 30th March, 1950, and the 30th November, 1950, and cannot have any application to the order for possession made in this case on the '27th February, 1950.

For reasons stated above this appeal must be allowed and the order made by the High Court should be set aside and the respondents' application under section 18 (1) of Act XVII of 1950 should be dis-missed and we order accordingly. In the circum-stances of this case we make no order as to costs except that the parties should bear their own costs throughout.

Appeal allowed.

Agent for the appellant: S. C. Bannerji.

Agent for' the r~spondent : Sukumar Ghose.

(1) 6 Moo. P.C. l; 4 MJ.A. 179·

(2) (19~3) L.R. 60 I.A, 13; A.l.R. 193~ P.C. 6~,