SHAIKH AHMMAD AND ANR. Vs. SUDHIR KUMAR GHOSH

JUDGEMENT

(1.) This Rule involves a question of construction with respect to section 5(2) of the Calcutta Thika Tenancy (Amendment) Ordinance. 1952, which, we understand, has been causing some difficulty. The question has arisen out of the following facts : The petitioners are in occupation of a certain plot of land situated within the limits of the Municipality of Howrah and they or their predecessors have built some structures thereon. The land is held under the opposite party. On the 15th of March. 1950, the opposite party made an application before the Second Munsif at Howrah, sitting as a Controller under the Calcutta Thika Tenancy Act, praying for an order of ejectment against the petitioners on the ground that they were Thika tenants and had not only defaulted in paying arrears of rent, but had also let out a major part of the holding for more than six consecutive months. The application was thus an application under clauses (i) and (v) of section 3 of the Calcutta Thika Tenancy Act. 1949. By an ex parte order made on the 9th of September. 1950, the Controller allowed the application. He did not base his order on the ground of default. because he said that an order of ejectment on the ground of default could be averted by making a deposit under section 6 of the Act, but since the petitioners were liable to be ejected, in any event, on the other ground, it would serve no purpose to direct their ejectment on the ground of default He therefore, allowed the application on the ground of unauthorised sub-letting of a major part of the holding for more than six consecutive months and ordered the opposite party to pay compensation, as required by proviso (ii) to sec. 4 of the Act. As the petitioners failed to file a statement as to what compensation they would claim, although the Controller asked them to do so, an order was made appointing a Commissioner for the purpose. Further proceedings under the order last mentioned were proceeding when the petitioners filed an application for review under section 27 of the Act. That application was made on the 11th of December. 1050, and thereupon Miscellaneous Case No. 365 of 1950. was started. For some time the original case which was Miscellaneous Case No. 78 of 1950. and the review case, which was Miscellaneous Case No. 365 6i 1950. proceeded on parallel lines, but on the 9th of June. 1951, the Controller directed that Case No. 78 of 1950 would remain in abeyance till Case No. 365 of 1950 was disposed of and would be taken up after the disposal of that case. The review application was dismissed on the 5th of August. 1952, both on the merits and on the ground that it was barred by limitation. Proceedings in Case No. 78 of 1950 were then resumed, but before they could go far, the petitioners preferred an appeal, which was Miscellaneous Appeal No. 176 of 1952. When the appeal was pending, the Calcutta Thika Tenancy (Amendment) Ordinance of 1952, was promulgated and it came into force on the 21st of Oct., 1952. Thereafter on the 3rd of December. 1952, when the appeal was still pending, the petitioners made an application under section 5(2) of the Ordinance of 1952, but as the records were with the appellate Court, the Controller was unable to deal with the application. The appeal was subsequently dismissed and upon the receipt of the records from the appellate Court, the Controller directed the application under section 5(2) of the Ordinance to be registered on the 22nd of Dec., 1952. The application was in due course heard and it was dismissed on the 2nd of May, 1953. An appeal taken from the order of dismissal was also dismissed on the 27th of Feb., 1954. Thereafter, the petitioners moved this Court and obtained the present Rule.

(2.) Both the Controller and the learned Judge on appeal have held that section 5(2) of the Ordinance does not contemplate an application by a person who was sued as or found to be a Thika tenant even under the main Act of 1949 before its amendment by the Ordinance and against whom a decree or order for ejectment had been made in his capacity of a Thika tenant. "On reading section 5(2) of the Ordinance, "observes the learned Judge, "I cannot persuade myself to imagine a case of a Thika tenant who having had suffered an order of ejectment to be passed upon a footing that he was so within 1949 Act, could again come either to the Controller or to the Court to find him to be a Thika tenant under 1949 Act as amended by 1952 Ordinance". Both the Controller and the learned Judge have taken the view that the intention of section 5(2) of the Ordinance that it does not apply to a person who has already been found to be a Thika tenant, even within the meaning of the 1949 Act and has suffered a decree or order for ejectment in that character, appears from the terms of the section itself. The learned Judge, however, has -added a further ground in support of the view taken by him. He has said that under section 27(6) of the Act, an order made by the Controller shall, subject to any order that may be passed in review, be final and that finality also attaches under that section to any order made by an appellate authority. According to the learned Judge, the petitioners, having availed themselves of the provision for a review and having also appealed, but having failed both in their application for a review and in their appeal, could not fall bank upon section 5(2) of the Ordinance and commence a new attack on the order of ejectment. The orders suffered by them had become final.

(3.) It was contended before us on behalf of the petitioners that the construction placed by the Controller and the learned Judge on the terms of section 5(2) of the Ordinance was erroneous and that if the two preliminary conditions mentioned in the first part of the section were satisfied, the person against whom a decree or order for ejectment had been passed, would be entitled as of right to make an application under the sub-section, even though he might have been sued or proceeded against as a Thika tenant in the original proceeding and had been found to be so. The right given by the sub-section to the person against whom a decree or order for possession had been passed was, it was said, unqualified, save by the two conditions laid down in the opening part of the sub-section.