PRAN KRISHNA MUKHERJEE Vs. JNANANDA (JNANANANDA) ROY

JUDGEMENT

(1.) The question we are called upon to decide in this rule is whether the Court below was competent to stay the hearing of an appeal pending before it. The appeal arose out of a suit for ejectment of a non-agricultural tenant, and was preferred by the tenant defendant against whom a decree for ejectment had been made by the trial Court. While the appeal was pending, the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, came into force, and thereupon the appellant himself applied for stay of the appeal, claiming that he was entitled to it as of right under the provisions of this Act. Agreeing with this contention, the lower appellate Court made the order for stay, and it is against this order that the plaintiff landlord has obtained this rule.

(2.) The petitioner's main point is that the Act is ultra vires of the Provincial Legislature. This is a question involving the construction of certain sections of the Government of India Act, 1935, which requires careful consideration, but we do not propose to go into that matter in the present rule, as in our opinion we can dispose of it on the other ground which the petitioner raises, namely that the provisions for stay contained in this Act do not apply to an "appeal." These provisions are embodied in Section 3 and also in Section 6, the difference between the two sections being that the former refers to suits and proceedings commenced after the Act has come into force, and the latter to suits and proceedings which were pending at the date of commencement of the Act. Section 6, however, attracts in terms of the provisions of Section 3. The short point which arises is whether the words "every suit and proceeding in any Court for ejectment of a non-agricultural tenant" used in these sections can be said to include an appeal. I had occasion recently to consider this very question in Jahur Mia V/s. Abdul Gaffur Mia Reported in , which came on for hearing before Mukerjee J., and myself, and I took the view that an appeal does not come within the scope of these words, though my learned brother reserved his opinion on the point. In coming to this conclusion, I held that the scope and intendment of the Act should be the guide to a correct interpretation.

(3.) An appeal undoubtedly arises out of a suit, and may in a sense be regarded as a proceeding in the suit itself, in the same way as an execution proceeding may be so regarded. It does not follow, however, that the word "suit" must, therefore, in every case and for all purposes include an appeal. Whether it will or will not include an appeal, will, in my opinion, depend on the subject and context in connexion with which the word is used. Mr. Prafulla Kumar Roy, advocate for the opposite party, arguing against the view expressed in my judgment in the other case, was content to rely on the word "suit," and not "proceeding," as covering an appeal, and his contention was that the word must be given the wider meaning, unless the subject and context required a more limited interpretation. In support of this argument, he referred to a number of sections of the Civil P. C., and endeavoured to show that in these sections a suit could not but be regarded as including an appeal. He made the point that while the adoption of this construction would give these provisions a consistent and reasonable meaning, involving no repugnancy whatever, to hold otherwise would lead to the anomalous result of the Code making provision for certain matters in respect of suits, but no corresponding provision for appeals. I am not much impressed with this argument. In the first place, it is not right or relevant to refer to or rely on the provisions of one statute in construing those of another, particularly when it is not in pari materia, and secondly taking the Civil Procedure Code itself, I think the Code clearly recognizes the distinction between a suit and an appeal which are in fact regarded as representing two distinct proceedings, and while it may be that in regard to certain matters no separate provision is expressly made for appeals, the context will probably show that in these respects appeals are intended to be governed by the same provisions as apply to suits.