DULICHAND MAHESRI Vs. PROHLAD CHANDRA

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiffs in a suit for ejectment of the defendants from a piece of land in the town of Jalpaiguri on service on them of a notice to quit. There were three defendants, but the suit was contested by only two of them, viz., defendants 1 and 8. The defence was three-fold. In the first place it was alleged that the tenancy was a permanent one, secondly the sufficiency of the notice to quit was questioned and lastly the defendants claimed protection from ejectment under Section 182, Ben. Ten. Act. The learned Munsiff of Jalpaiguri who tried the suit in the first instance gave the plaintiffs a decree. On appeal that judgment was reversed by the learned Subordinate Judge. Both the Courts agreed in turning down the plea of permanency as well as that based on the alleged invalidity of the notice to quit. As regards the bar of Section 182, Ben. Ten. Act, it is common case that so far as defendants 1 and 2 are concerned, none of them was a raiyat and they could not consequently avail themselves of this defence. As regards defendant 3, however, the learned Munsiff held that the question did not arise at all in his case, as he had failed to prove that he had acquired any interest in the disputed holding. The learned Subordinate Judge on the other hand, found that defendant 8 was a tenant, and that having regard to the fact that he had acquired a number of raiyati holdings in the same mouza in which the disputed tenancy was situated, the learned Judge held that he was entitled to claim the protection of Section 182. The only point that has been argued in this appeal relates to applicability of this section.

(2.) A preliminary objection was taken by Mr. Gupta on behalf of the defendants-respondents to the hearing of this appeal under the provisions 8f Section 6 read with Section 3, Bengal Non-Agricultural Tenancy (Temporary Provisions) Act of 1940. Section 3 of this Act provides for a compulsory stay of all suits and proceedings for the ejectment of a non-agricultural tenant for the period of the Act, and Section 6 makes the same provision applicable in the case of suits and proceedings which were pending at the date the Act came into operation. The suit here was instituted on 22 November, 1937 and the judgment of the trial Court was pronounced on 23 December 1938 and that of the lower appellate Court on 5 March 1940: Thereafter the present appeal to this Court was presented on 16 May 1940. During the pendency of this appeal, the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act of 1940 came into force. Mr. Gupta argued that the word suit as used in Section 3 or in Section 6 of the Act refers to a suit in any stage, whether original or appellate, just as the word proceeding would include a proceeding in the Court of first instance as well as in the appellate Court. It would, he maintained, be inconsistent to restrict the meaning of the word suit but not of the word proceeding . It was further contended that where legislation affected pending litigation, the rule was that it must be deemed to affect the litigation in whatever stage it might be pending, unless the Legislature expressly provided to the contrary. This particular legislation was obviously made retrospective in its operation by the terms of Section 6 and it followed accordingly that it should hit any proceeding which might be pending at the relevant date in any Court. In support of this principle, reliance was placed on the decision of the Judicial Committee in Mukerji, Official Receiver V/s. Bamratan Kuar , and on the judgment of the Federal Court in Jagadish Jha V/s. Aman Khan .

(3.) The question as to whether the word "suit" in Section 3 or Section 6, Bengal Non- Agricultural Tenancy (Temporary Provisions) Act, 1940, includes an appeal was raised in Jahur Mia V/s. Abdul Gaffur , where I took the view that it does not, but my learned brother Mukherjea J. thought it sufficient merely to hold that the other word in the section "proceeding" was wide enough to include an appeal. In a later case, viz., the ease in Pran Krishna Mukherjee v. Jnanada Ray which was decided by my learned brother Edgley J. and myself, the view I had expressed in the earlier judgment was affirmed by both the members of the Bench. With reference to these (sic) Mr. Gupta pointed out that these were (sic) appeals directed against decrees for ejectment which had been passed against them by the Court below, and it was sufficient to hold that such appeals, which could not obviously be regarded in any case as proceedings for ejectment of the tenants, could not and did not come within the meaning of the words " suits for ejectment". Mr. Gupta maintained that the decision as to the meaning of the word "suit" as laid down in these judgments must be taken with reference to the particular facts which were in dispute in those cases.