PANCHANON SHAW Vs. SATYABANDHU MUKHERJEE

JUDGEMENT

(1.) THIS is a Rule against an order of the Munsif, 1st Court, Alipore purporting to be under Section 28, Calcutta Thika Tenancy Act, 1949, rescinding a compromise decree for ejectment made in the suit before him on 15th July 1948. The petitioner here, as plaintiff, brought a suit on 9th April 1948, for ejectment of the opposite party alleging that five months' rent was due and also that notice under Section 106, T. P. Act, had been served requiring the defendant to vacate on the expiry of the month of October 1947. It may be noted that in his petition the petitioner alleges that the tenant was in occupation on two leases which expired with the month of October, 1947 and that the notice in question was merely issued out of abundant caution. No reference to the fact of the leases, however, was made in the original suit. The suit was compromised and a decree passed in accordance with the terms thereof. These were, briefly: The plaintiff was to get a decree for ejectment with costs and also a decree for Rs. 125 on account of arrears of rent and Rs. 40 as damages, but the defendant was given an option to remain on the land until the 15th October and then give up peaceful possession by removing some of the structures. For the remainder the plaintiff was to pay Rs. 500. Further, if the tenant vacated in accordance with the terms he was to get an extra Rs. 250 as compensation and then the decree was to have no effect. The decretal amount for arrears of rent, damages and costs was to be deemed to be fully satisfied. If the terms were not complied with, the decree was to remain in full force and effect. The tenant did not vacate and comply with the terms of the contrast although the plaintiff deposited Rs. 750 in Court. On 28th February 1949, the Calcutta Thika Tenancy Act came into force and thereafter the tenant made an application under Section 28 thereof and the Munsif has allowed the application and rescinded the decree.

(2.) THE Munsif had power under Section 28 of the Act to rescind the decree if he was 'of opinion that the decree or order was not in conformity with any provision of this Act other than Sub -section (1) of Section 6 or Section 27.' The Munsif has interpreted this to mean that he is to treat the suit as though wholly governed by the provisions of the Act although the Act was not in force either at the time of institution of the suit or at the time of the decree. He has held that although strictly speaking the decree could not be said to have been made or the 'ground' of existence of arrears of rent, a ground which, in Section 3 (1) of the Act, has been now made one of the grounds for eviction, nevertheless as there was a claim for arrears and a decree for arrears, he thought that the decree was, even on his interpretation, in this respect in conformity with the provisions of the Act. He has however held that it is not in conformity with the provisions of the Act because the notice given, as appears from the record, was not in accordance with the provisions of Section 4 of the Act which requires at least one month's notice in writing expiring with the end of the month of the tenancy. A notice was sent by ordinary post on 30th September and there was a registered notice, the receipt whereof shows that the notice was refused on 2nd October. Without going into the question further the Munsif has assumed that this shows that at least one month's notice was not in fact given.

(3.) MANY points were canvassed before me which I do not think it necessary to discuss. In my opinion, the special feature of this case is that the decree in question was a consent decree and although Section 31 of the Act specially provides that nothing in any contract between a landlord and a Thika tenant after the commencement of the Act shall take away or limit the rights of the tenant, by implication there is no bar in the case of a contract made, as in the case of this consent decree, prior to the commencement of the Act.