JAHUR MIA Vs. ABDUL GAFFUR MIA

JUDGEMENT

(1.) The question in this rule is whether the Court below was justified in staying the hearing of an appeal pending before it. The appeal arose out of a suit for ejectment, and the order for stay purported to be made under Section 3, Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940. This is a recent enactment of the Bengal Legislature which came into force on 30 May 1940, and is designed to give temporary relief to non-agricultural tenants by staying all suits and proceedings against them for ejectment for the period of the Act, namely, a period of two years from the date of its commencement. The material portion of Section 3 is as follows: Notwithstanding anything contained in any other law for the time being in force every suit and proceeding in any Court for ejectment of a non-agricultural tenant other than a suit or proceeding for ejectment on account of the non-payment of rent by such tenant, shall be stayed for the period during which this Act continues in force.

(2.) There is no question of ejectment for nonpayment of rent here, and the suit is not, therefore, excepted from the operation of the section by virtue of the exceptional clause therein, whatever that clause might mean. The learned Judge was of opinion that the suit came within the terms of the section, and presumably taking the view that an appeal is a continuation of the suit, felt bound to stay the appeal. The petitioners before us are the plaintiffs in the suit and challenge the propriety of the order on a variety of grounds. The learned Advocate appearing for them did not, however, argue the question of the Act being ultra vires of the Bengal Legislature, though this was the first and foremost ground taken in their petition. He was content to support the rule on other grounds, which in effect amounted to saying that the case did not come within the provisions of Section 3. To appreciate the arguments, it is necessary to set out a few facts.

(3.) There were two sets of defendants in the suit. The principal defendants were defendants 1 to 8, the modaks, who were direct tenants under the plaintiffs in respect of certain bhiti lands in the town of Narayanganj, and it is not disputed that they would come within the definition of non-agricultural tenants under the Act. The lands which they held were non-agricultural, there was an agreement under the terms of which they were entitled to hold the lands for homestead or residential purposes, and there were no structures thereon erected or owned by the landlords. The evidence is, and it is admitted, that the tenants themselves put up certain tin-sheds. The other set of defendants, of whom defendant 9 was one, were persons who had taken a sub-lease of some of these tin-sheds from the modaks, and in the document creating the sub-lease, they were described as "bharatias" of the structures which were expressly stated to be the property of the modaks. It appears that during the pendency of the suit, the principal defendants came to terms with the plaintiffs with the result that a solenama was filed, whereby they admitted the title of the plaintiffs as landlords and offered to deliver up possession of the lands with the structures, the plaintiffs agreeing to pay them a sum of Rs. 1000 as the price of the structures. The solenama was filed on 7 September 1939, and on 14 December following, the learned Munsif passed a decree in favour of the plaintiffs against defendants 1 to 8 in terms thereof. As regards the other defendants, as they were absent on call, the suit was decreed ex parte against them, costs being awarded against defendant 9 only. From this ex parte decree defendant 9 took an appeal to the third Subordinate Judge of Dacca, and while this appeal was pending, the new Act came into force. Defendant 9 thereupon made an application for stay, and as already stated, a stay was granted. It is against this order that the plaintiffs have obtained the present rule, defendant 9 being the sole opposite party.