# Nalinakhya Bysaclc v. Shyam Sunder Haldar. and Others

- **Citation:** [1953] 1 S.C.R. 533
- **Court:** Supreme Court of India
- **Decided:** 1951-04-09
- **Bench:** Mehr Chand Mahajan, Das, Bhagwati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nalinakhya-bysaclc-v-shyam-sunder-haldar-and-others-46
- **Pages:** 13

## Headnote

West Bengal Premises Rent Control (Temporary Provisions)
Act (XVII of 1950), s. 18 (I)- T-Vhether applies to orders for recovery of possession made by Presidency Small Cause Court-" Decree
for recovery of possession "-Construction of stat1ites-Mistakes of
legislature.
The expression "decree for recovery of possession" in· s. 18
(1) of the West Bengal Premises Rent Control (Temporary Provisions) Act (Act XVII of 1950) does not include an order for recovery of possession made under s. 43 of the Presidency Small
Cause Courts Act, 1882, and a person against whom an order fo1·
1959
Jan. 29.
1953
Nalinakhya
Bysaclc
v.
Shyam Sunder
Haldar.
and Others.
534
SUPR:E:ME dOURT REPORTS
(1953]
recovery of possession has been passed under s. 43 of the Presidency Small Cause Courts Act, 1882, is not therefore entitled to
claim relief under the provisions of s. 18 (1) of Act XVII of 1950.
•Bai Bahadiir Atiilya Dhan Banerjee v. Siidhangsu Bhiisan
Dutta([l951] 55 0.W.N. 343), Dhanesh Prakash Pal v. Lalit Mohan
Ghosh ([1951] 55 O.W.N. 347), Mohan Lal Khettry v. Ohuni Lal
Khettry ([1951] 55 O.W.N. 421) Jethmull Sethia v. Aloke Ganguly
([1951] 55 O.W.N. 563), Iswari Prasad Goenka v. N. R. Sen ([1951]
55 O.W.N. 719) overruled.
In construing a statute it is not com:Petent to any court' to
proceed upon the assumption that the Legislature has made
a mistake and even if there is some de:fect in. the phraseology
used by the
Legisla~ure, the Court cannot aid the defective
Phrasing of an Act or add and amend, or by construction, make up
deficiencies which are left in the Act.
Oom1nissioner for Special Purposes of Income Tax v. Pemsel
([1891] A.O. 531); Crawford v. Spooner ([1846-51] 4 l\LI.A. 179) and
Hansraj Gupta v. Official Liqi<idator of Dehra D"n Mi<ssourie
Electric Tramway Go. Ltd. ([1933] 60 I.A. 13) referred to.
CrvIL APPELLATE JuRISDIOTION:
Civil Appeal
No. 96 of 1952. Appeal from the Judgment and Order
dated the 9th April, 1951, of the High Court of Judicature at Calcutta (Sen and Chunder JJ.) in Civil
Rule No. 1038of1950 arising out of the Order dated
the 4th July, 1950, of the Court of the 6th Judge,
Presidency Small Causes Court, Calcutta, in Ejectment Suit No. 6571 of 1949.
Arun Kumar Dutta and Shivdas Ghosh for the
appellant.
-.
Panchanan Ghose (S. P. Ghose, with him) for the
respondent.
1053. January 29. The .Judgment of the Court
was delivered by
.
, DAS J.-This appeal is directed against the judgment and order of a Bench of the Calcutta High Uourt
passed on the 9th April, 1951, iu Civil Rule No.1038
of 1950. The facts leading up to this appeal may be
shortly stated as follows :
The respondents were, according to the appellant,
monthly tenants under the appellant in respect of
three rooms, one kitchen, one privy and a bathroom
on the groundfioor of premises No. 6, Roy Began
•
. -
S.C.R. SUPREME COURT REPORTS
535
Street, Calcutta, at a monthly rent of Rs. '35 payable
according to the Bengali calendar month.
On the
29th Baisakh 1356 B. S. the appellant gave notice to
the respondents to quit the premises on or before the
7th Jaistha 1356 B.S. The respondents having failed
to comply with tqe notice the appellant on the 1st
June, 1949, instituted proceedings under Chapter VII
of the Presidency Small Cause Courts Act, 1882, for
the eviction of the respondents from the demised premises on the allegation that the tenancy had determined ipso fact.J for non-payment of rent for three
consecutive months in terms of section 12 (3) of the
West Bengal Premises Rent Control Act, 1948. The
respondents on the 6th July, 1949, deposited into
Court Rs. 233-7-0 and on the 8th July, 1949, entered
appearance and filed a written statement denying that
they were in arrears with their rent or that their
tenancy had been ipso facto determined.
The said
proceedings came up for hearing on the 27th February, 1950, and the respondents not having appeared
it wa·3 heard ex parte and an order was made directing
the delivery of possession of the premises to the
appellant on

## Text

•
' ,. --
S.C.R. SUPREME COURT REPORTS
533
who is treated as agent under section 43 may not fall
19S3
within any of the several categories of income, profits
T
·
f
d
·
'
4"
Th
1
urnar
or gams re erre
to m section
:6.
e anguage Mm·rison ct co.,
of section 43 will also attract the provisions of
Ltd.
section 40, for that section also
contemplates a
v.
person who is entitled to receive on behalf of the Commissioner 01
non-resident any income, profits and gains chargel~~cotnBie-tao:,t
b
d
.
d
h
.
'es
enga •
a le un er this Act an may even attract t e provi-
·
sions of section 4(l)(a). In our opinion there is no
Das J.
warrant for the contention that an appointment of a
person as a statutory agent under section 43 only
attracts section 42 for such appointment is for all
purposes of the Act and not only for the purposes of
section 42.
In our judgment, for reasons stated above, the
answers given to the questions by the High Court,
in so far as they relate to the assessment of incometax with which alone we are now concerned, are
correct and this appeal must be dismissed with costs.
Appeal dismissed.
Agent for the appellant: P. K. Mukherii.
Agent for the respondent: G. H. Raiadhyaksha.
N ALINAKHYA BY SA OK
v.
SHYAM SUNDER HALDAR AND OTHERS.
[MEHR CHAND MAHAJAN, DAS, and BHAGWATI JJ.]
West Bengal Premises Rent Control (Temporary Provisions)
Act (XVII of 1950), s. 18 (I)- T-Vhether applies to orders for recovery of possession made by Presidency Small Cause Court-" Decree
for recovery of possession "-Construction of stat1ites-Mistakes of
legislature.
The expression "decree for recovery of possession" in· s. 18
(1) of the West Bengal Premises Rent Control (Temporary Provisions) Act (Act XVII of 1950) does not include an order for recovery of possession made under s. 43 of the Presidency Small
Cause Courts Act, 1882, and a person against whom an order fo1·
1959
Jan. 29.
1953
Nalinakhya
Bysaclc
v.
Shyam Sunder
Haldar.
and Others.
534
SUPR:E:ME dOURT REPORTS
(1953]
recovery of possession has been passed under s. 43 of the Presidency Small Cause Courts Act, 1882, is not therefore entitled to
claim relief under the provisions of s. 18 (1) of Act XVII of 1950.
•Bai Bahadiir Atiilya Dhan Banerjee v. Siidhangsu Bhiisan
Dutta([l951] 55 0.W.N. 343), Dhanesh Prakash Pal v. Lalit Mohan
Ghosh ([1951] 55 O.W.N. 347), Mohan Lal Khettry v. Ohuni Lal
Khettry ([1951] 55 O.W.N. 421) Jethmull Sethia v. Aloke Ganguly
([1951] 55 O.W.N. 563), Iswari Prasad Goenka v. N. R. Sen ([1951]
55 O.W.N. 719) overruled.
In construing a statute it is not com:Petent to any court' to
proceed upon the assumption that the Legislature has made
a mistake and even if there is some de:fect in. the phraseology
used by the
Legisla~ure, the Court cannot aid the defective
Phrasing of an Act or add and amend, or by construction, make up
deficiencies which are left in the Act.
Oom1nissioner for Special Purposes of Income Tax v. Pemsel
([1891] A.O. 531); Crawford v. Spooner ([1846-51] 4 l\LI.A. 179) and
Hansraj Gupta v. Official Liqi<idator of Dehra D"n Mi<ssourie
Electric Tramway Go. Ltd. ([1933] 60 I.A. 13) referred to.
CrvIL APPELLATE JuRISDIOTION:
Civil Appeal
No. 96 of 1952. Appeal from the Judgment and Order
dated the 9th April, 1951, of the High Court of Judicature at Calcutta (Sen and Chunder JJ.) in Civil
Rule No. 1038of1950 arising out of the Order dated
the 4th July, 1950, of the Court of the 6th Judge,
Presidency Small Causes Court, Calcutta, in Ejectment Suit No. 6571 of 1949.
Arun Kumar Dutta and Shivdas Ghosh for the
appellant.
-.
Panchanan Ghose (S. P. Ghose, with him) for the
respondent.
1053. January 29. The .Judgment of the Court
was delivered by
.
, DAS J.-This appeal is directed against the judgment and order of a Bench of the Calcutta High Uourt
passed on the 9th April, 1951, iu Civil Rule No.1038
of 1950. The facts leading up to this appeal may be
shortly stated as follows :
The respondents were, according to the appellant,
monthly tenants under the appellant in respect of
three rooms, one kitchen, one privy and a bathroom
on the groundfioor of premises No. 6, Roy Began
•
. -
S.C.R. SUPREME COURT REPORTS
535
Street, Calcutta, at a monthly rent of Rs. '35 payable
according to the Bengali calendar month.
On the
29th Baisakh 1356 B. S. the appellant gave notice to
the respondents to quit the premises on or before the
7th Jaistha 1356 B.S. The respondents having failed
to comply with tqe notice the appellant on the 1st
June, 1949, instituted proceedings under Chapter VII
of the Presidency Small Cause Courts Act, 1882, for
the eviction of the respondents from the demised premises on the allegation that the tenancy had determined ipso fact.J for non-payment of rent for three
consecutive months in terms of section 12 (3) of the
West Bengal Premises Rent Control Act, 1948. The
respondents on the 6th July, 1949, deposited into
Court Rs. 233-7-0 and on the 8th July, 1949, entered
appearance and filed a written statement denying that
they were in arrears with their rent or that their
tenancy had been ipso facto determined.
The said
proceedings came up for hearing on the 27th February, 1950, and the respondents not having appeared
it wa·3 heard ex parte and an order was made directing
the delivery of possession of the premises to the
appellant on the 3rd May, 1950. In the meantime
on the 31st March, 1950, the West Bengal Premises
Rent Control (Temporary Provisions) Act, 1950 (Act
XVII of 1950) came into force.
On the 29th May,
1950, the respondents filed an application in the trial
Court under section 18 of the said Act for vacating
the order for possession.
On the 5th June, 1950, the
trial Court made an order upon terms which, as set
out in the respondents' case, are as follows :
"5 .. 6-50.
On consent all arrears of rent up to
J aistha 1357 B.S. with interest at 9% p.a. along with
the costs of the suit including half Pleader's fee
amounting to Rs. 399-3-0 on consent in total to be
paid by the defendants to the plaintiff by 4-7-50. The
date fixed for payment arid final orders. All proceedings :a.nd execution stayed until further orders."
The agreed amount having been paid the order for
possession was vacated on the 4th July, 1950.
The
1953
Nalinakhya
By sack
v
Shyam Sunder
Haldar
and Others.
Das J .
'536
SUPREME COURT REPORTS
'
.
[1953]
1953
order as recorded in the order sheet reads as
follows:-
Nalinakhya
Bysaak
• "4-7-50. Parties present as before. Defendant
v.
carries out the order of the learned Court, dated 5th
Shyam s,.nder June, 1950.
Money deposited in Court as ordered.
Haldai·
Accordingly order of decree for possession \s vacated.
and Others.
Money in Court is allowed to be withdrawn by the
Das J.
plaintiff's pleader under power."
The appellant on the 1st August, 1950, moved the
High Court under section 115 of the Code of Civil
Procedure for setting aside the order of the trial
Court passed on the 4th July, 1950. While the application was pending before the High Court the West
Bengal Premises Hent Control (Temporary Provisions) (Amendment) Act, 1950 (Act LXII of 1950)
came into force on the 30th November, 1950. On the
9th April, 1951, the High Court following an earlier
.decision of another Bench of that Court in Rai Bahadur Atulya Dhan Banerjee v. Sudhangsii Bhusan
Dutta(') dismissed the. application.
On the 30th
November, 1951, the High Court granted leave to
the appellant to appeal to this Court and issued a
certificate under the provisions of article 133 (1) (c)
of the Constitution of India ..
As already stated, the proceedings out of which
'the present appeal arises were instituted under Chapter VII of the Presidency Small Cause Courts Act,
1882.
Chapter VII of that Act which is intituled
"Recovery of Possession of Immovable Property"
allmvs the· landlord, in certain circumstances, to
"apply to the Small Cause Court for a summons
against the occupant calling upon him to show cause
on a day therein appointed why he should not be
compelled to deliver up the property."
Section 43
provides that if the occupant does not appear at the
time appointed or show· cause to the contrary, the
applicant landlord shall, if the Court is satisfied that
he is entitled to apply under section 41, be entitled to
an order addressed to a Bailiff of the Court directing
(I) (1951 J 55 C.W.N. 343·
"
' .
·""
S.C.R.
SUPREME COURT REPORTS
537
him to give possession of the property to the applicant on such date as the Court thinks fit to name in
1953
Nalinakhya
such order.
Although under the rules framed under
Bv,,ack
the Act this application under section 41 is initiated
v.
by a plaint there is no dispute that the proceeding is Shyam Sunde,.
not 'a suit and the order for delivery of possession
Haldar
k.
d
f
and Others.
does not strictly spea mg amount to a ecree or
recovery of possession.
[See Rai Meherbai Sorabji
Master v. Pherozshaw Sorabji Gazdar(1 ) ].
Indeed,
section 19 of the Act peremptorily provides, inter alia,
that the Small Causes Court shall have no jurisdiction in suits for recovery of immovable property.
The only question for consideration, therefore, is
whether section 18(1) of Act XVII of 1950 applies to
an order for possession made under section 43 of the
Presidency Small Cause Courts Act, 1882.
Section 18(1) and the marginal note to that section
run as follows :
"18. (1). ·where any decree for recovery Gf possession of any premises has been made
Power of Court to
rescind
or
vary on the ground of default in payment
decree~ and ~rdei:s of arrears of rent under the provisions
or to give rehef in
.
rending suits
in of the vVest Bengal Premises Rent
certaincases.
Control (Temporary Provisions) Act,
1948, but the possession of such premises has not
been recovered from the tenant, the tenant may
apply to the trial Court within sixty days of the
coming into force of this Act for vacating the decree
for ejectment against him and within such period no
order for delivery of possession shall be made by any
Court, nor if an application is made by the tenant
under this sub-section till the application has been
dismissed under sub-section ( 4)."
In Rai Bahadur Atulya Dhan Banerjee v. Sudhangsu Bhu,san Dutta it was held that the expression "decree for recovery of possession" in subsection (1) of section 18 includes an order for recovery of possession made under Chapter VII of the
Presidency Small Cause Courts Act, 1882. This case
(l) (1927) I.L.R. 51 Born, 385,
(2) (1951) 55 C.W,N. ~i3•
Das J.
1953
Nalinakhya
Bysack
v.
Shyam Sunder
Haldar
and Others.
Das J.
538
SUPREME COURT REPORTS
[1953]
was followed, without further discussion, by different
Benches of the same High Court in Dhanesh Prakash
Pal v. Lalit Mohan Ghose ('), Mohan Lal Khettry v.
C"kuni Lal Khettry ('), Jethmull Sethia
v. Aloke
Ganguly (') and also in the present case.
Finally, the
question was again considered by a larger Bench of
the Calcutta High Court in Iswari Prasad Goenka v.
N. R. Sen(').
The learned Judges agreed with the
earlier decision in Rai Bahadur Atulya Dhan Banerjee
v.
Sudhangsu Bhusan Dutta (5 ).
After
hearing
the able arguments advanced before us and giving
the most anxious consideration to the decisions in the
cases mentioned above we are unable to accept the
conclusion arrived at by them in those cases as
correct.
Apart from the question whether the marginal note
can at all be refened to in construing the provisions
ol a section of an Act, it is quite clear, on the
authorities, that the marginal note cannot control
the meaning of the body of the section if the language
employed therein is clear and unambiguous. If
the language of the section is clear then it may be
that there is an accidental slip in the marginal note
rather than
that the marginal
note is correct
and the accidental slip is in the body of the section
itself.
Take for instance section 11 of the West
Bengal Premises Rent Control Act, 1948.
The section says that notwithstanding anything contained in
certain Acts specified therein, "no order or decree for
the recovery of possession of any premises shall be
made so long as the tenant pays to the full extent the
rent allowable by this Act and performs the conditions of the tenancy."
The marginal note to that
section simply says:
" No order for ejectment
ordinarily to be made if rent paid at allowable rate."
In the marginal note the words "or decree" do not
find a place at all, a fact which clearly shows that
the marginal note was not prepared carefully and
that it was not a sure guide in the matter of the
(1) (1951) 55 C.W.N. 347·
' (2) (1951) 55 C.W.N. 421.
(3) (r951) 5~ C.w N. 563.
(4) (195r) 55 C.WN. 719.
(5) (1951) 55 C.W.N. J43·
)
S.O.R.
SUPREME COURT REPORTS
539
interpretation of the body of the section.
We have,
therefore, to r'ead the words used in the body of section 18(1) of the 1950 Act and if we find the meaw:iing clear and unambiguous, the marginal note should
not be permitted to create an ambiguity in the section.
Section 18 (1), as it stood on the 4th July, :1.950,
when the order for possession passed on the 27th
February, 1950, was vacated, gave relief to a tenant
aga.inst whom any decree for recovery of possession
of any premises had been made on the ground of
default in payment of arrears of rent under the
provisions of the 1948 Act, provided that the possession of the premises had not been recovered from
him.
The relief given by this section is clearly
against a decree for possession which "has been made"
under the 1948 Act.
The language of section 18 (1)
of the 1950 Act and in particular the specific
reference therein to the Act of 1948 take us back to
that Act. Section 11 of the 1948 Act refers "to order
or decree for the recovery of
possession of any
premises".
The reference in the non obstante clause
of section 11 to the Presidency Small Cause Courts
Act, 1882, clearly indicates that the order for the
recovery of possession refers to orders passed under
section 43 of the last mentioned Act on applications
made under section 41 thereof.
Section 11 speaks of
both "order" for the recovery of possession and
" decree " for the recovery of possession.
Therefore,
there can remain no manner of doubt that the two
words " order " and " decree " in section 11 connote
two different things.
'.l'his is further made clear by
the use of two words "suit" or "proceeding" in
section 12 of the 1948 Act.
I~ is, thus, quite clear
that in the 1948 Act "suit" is different from "proceeding" and "order" is different from "decree".
Therefore, in construing the 1948 Act there can be
no occasion for giving any extended meaning to the
word" decree" so as to include "order", for the two
are distinctly and separately provided for.
Section
18 (I) of Act XVII of 1950 does not refer to "decree"
7q
. 1953
Na!inakhya
Bysack
V,
Shyam Sunder
Haldar
and Others.
Das J.
1958
Nalinakhya
Bysack
v.
Shyavi Sunder
Haldar
and OtherR,
Das J.
540
SUPREME COURT REPORTS
[1953]
simpliciter but to "auy decree for recovery of possession of any premises on the grouud of default in payment of arrears of rent under the pravisions of" the
1948 Act.
Turning then to that Act we find that a
decree for possession on the ground of non-payment
of rent under that Act is treated distinctly from an
order for possession on the ground of non-payment of
rent under the same Act.
A decree for the recovery
of possession within the meaning of that Act can,
therefore, only mean a decree in a snit for recovery
of possession and eannot cover an order for possession passed under section 43 on an application made
under section 41 of the Presidency Small Cause Courts
Act. In short, section 18(1) of Act XVII of 1950
expressly attracts the 1948 Act and under that Act
there can be no necessity for giving an extended
.
t th
d "d
" f
"
d
" .
meamng o
e wor
ecree , or
or er
1s separately dealt with in that Act.
It is said that whatever the word "decree" may
mean in the 1948 Act it is immaterial for the purposes
of construing Act XVII of 1950 for the Court has to
ascertain the meaning of the word ''decree" as u"sed
in section 18(1) of the last mentioned Act. It has
been already stated that the language of section 18
(1) attracts the relevant provisions of the 1948 Act
and, therefore, the word "decree" occurring in section
18(1) must necessarily be construed in the light of
the 1948 Act and it is clear that so construed it cannot cover "order" for possession made under Chapter
VII of the Presidency Small Cause Courts Act. Apart
from that consideration, the question still remains:
What does the word "decree" in section 18 (1) mean?
'fhat word has not been defined either in the 1948
Act or in Act XVII of 1950 or in the Bengal General
Clauses Act.
'!.'hat word, however, has been defined
in the Code of Civil Procedure, 1908, and, as there
defined, it means the formal ex.pression of an adjudica.tion which determines the rights of the parties with
regard to the matter in controversy in the suit which
last word prima facie means a
civil proceeding
initiated by a plaint (secti<;m 26 1J,nd Order IV, rule 11
S.C.R.
SUPREME COURT REPORTS
54i
Civil Procedure Code). This is the ordinary accepted
meaning of the word " decree" and if that meaning
is attributed to the word " decree " occurring in
section 18(1) then clearly it cannot cover an order Jor
1953
Nalinakhya
By sack
v.
possession passed under section 43 of the Presidency Shyam Sunder
Small Cause Courts Act on an application made under
Haldar
seotion 41 of that Act.
and Others.
It is, however, urged that the word " decree" in
section 18 (1) of Act XVII of 1950· should not be
read in its strict sense. It is said that although the
word "suit" ordinarily means a proceeding instituted
by a plaint, it is also used in a wider sense so as to
cover proceedings which are not instituted by a
pla~nt and, therefore, an adjudication in those proceedings which are also suits in that extended meaning may well be said to be a "decree". Reference is
made to the explanation of sub-section (1) of section
12 of Act XVII of
1~50, which expressly provides
that in the proviso to sub-section (1) the term "suit"
does not include proceeding under Chapter VII of the
Presidency Bmall Cause Courts Act, 1882, and it is
urged that this explanation inferentially means that
tlie word "suit" occurring in the other sections of
Act XVII of 1950 may include a proceeding under
Chapter VII of the Presidency Small Cause Courts
Act and, therefore, an order made on such a proceeding may be described as an adjudication in a suit and,
therefore, a decree. It is not quite clear how this
inference, even if it can be properly drawn, can have
any bearing on the construction of the word "decree"
in sub-section (1) of section 18 of the Act XVII of 1950
where the word " suit" is not used at all.
Be that as
it may, the argument founded on the aforesaid
inference sought to be drawn from the explanation to
section 12 (1) of Act XVII of 1950 will clearly
appear to be untenable when the provisions of that
Act are closely scrutinised, for it will then be found
that the word "suit" does not and was not intended
to cover any proceedin'g under Chapter VII of the
Presidency Small Cause Courts Act.
Section 12 (1)
prohibits the making of any order or decree for the
Das J.
1953
Nalinakhya
Bysack
v.
Shyam Sundllr
Haldar
and Others.
Das J.
542
SUPREME COURT REPORTS
[i953]
recovery of possession by any Court, notwithstanding
anything to the contrary in any other Act or !:ow.
This sub-section (1), standing by itself, means that no
oriler for possession can be passed by the Presidency
Small Cause Court notwithslanding the Presidency
Small Cause Courts Act and no decree for possession
can be made by any Court in any suit notwithstanding
the 'rransfer of Property Act or the Contract Act or
the Code of Civil Procedure, 1908.
The proviso to
sub-section (1), however, saves "any suit for decree
for such recovery of possession" against certain
tenants or in certain circumstances.
Therefore, it is
clear that the proviso to sub-section (1) of section 12
does not save proceedings under Chapter VII of. the
Presidency Small Cause Courts Act. The explanation
to that sub-section stating that the word "suit" in
the proviso does not include a proceeding under
Chapter VII of the Presidency SmaU Cause Courts
Act appears to have been inserted out of abundant
caution to put the position beyond any doubt. Section
16 of Act XVII of 1950 provides that notwithstanding
anything contained in any other law a suit by a landlord against a tenant for recovery of possession "of
any premises to which the Act applies shall lie to the
Courts as set out in Schedule B and that no other
Court shall be competent to entertain or try such
suit. According to Schedule B, where the premises
are situate on land wholly within the ordinary original
civil jurisdiction of the Calcutta High Court aud
when the rent does not exceed Rs. 500 per month,
the Chief Judge of the Calcutta Court of Small
Causes shall entertain and try such suit .as a Court of
the District Judge, provided that he shall be entitled
to transfer the suit to any other Judge of that Court
who shall try it as a Court of the Subordinate Judge.
The result of sections 12 and 16 read with Schedule
'B is for all practical purposes to suspend the operation of Chapter VII oft.he Presidency Small Cause
Courts Act in Calcutta for no one will take proceedings in which no order can be made. The effect of
those sections is to confer a new jurisdiction on the
•
...
S.C.R.
.
~
-
.
.
.
..
SUPREME COURT REPORTS
543
1953
Chief Judge of the Calcutta Small Cause Court to
entertain and try suits by landlords -against tenants
for recovery of possession of premises situate within
Nalinakhya
By sack
the ordinary original ci vii ju.risdiction of the Calcu1'ta
v.
High Court when the monthly rent does not exceed Shyam Sundei·
Rs. 500.
Thus after Act XVII of 1950 came into
Haldar
force the Calcutta Small Cause Court has ceased to
and Others.
have any power to pass an order for possession under
Chapter VII of the Presidency Small Cause Courts
Act and the Small Cause Court of Calcutta can,
under that Act, only pass a decree for possession in a
suit which is saved by the proviso to sub-section (1)
of section 12 and with regard to which a special
jurisdiction is conferred on that Court by section 16
of that Act. That being the position, the word" suit "
in none of the sections of Act XVII of 1950 can be
said to have been used as including a proceeding
under Chapter VII of the Presidency Small Cause
Courts Act.
Therefore, the reasoning advanced in
support of attributing an extended meaning to the
word "suit" and then inferentially to the word
"decrne" in section 18 (1) cannot be sustained.
It is next ·argued that if the word "decree" is
construed strictly it will give rise to startling results
in that poor tenants against whom orders for possession had been made under the 1948 Act will be
deprived of the benefit of section 18 (1) while the
wealthy tenants paying rents above Rs. 500 per
month will get relief under that section and this will
frustrate the i1:1tention of the Legislature. This argument proceeds on the assumption that the Legislature
intended .to give relief to all tenants against whom
orders or decrees for possession had been made. The
language of section 18 (1) clearly shows that the
intention of the Legislature was to give relief only to
certa;in tenants in certain circumstances. In the first
place relief is given only with respect to decree for
possession made on the specified ground and not with
respect to a decree for possession made on any other
ground. In the next place reliHf is given only when
the possession of the premises in respect of which a
Das J.
1958
Nalinakhya
By sack
v.
Shyani Sunder
Haldar
and Others.
Das·J.
544
SUPREME COURT REP'ORTS
[1953j
decree for possession had been made had not been
made over by the tenant. Thus tenants against
whom a decree for possession had been made on
grounds other than the.ground specifi~d in the subsection and even tenants against whom a decree for
possession had been made on the specified ground but
who had, voluntarily or otherwise, delivered possession of the premises get no relief under section 18 (1).
An order for possession i.s niade by the Presidency
Small Cause Court under Section 43 on a summary
application under section 41 and the order directs
the Bailiff of the Court to deliver possession to the
applicant. This'order for the recovery of possession
which under section 37 of the Presidency Small Cause
Courts Act is final and conclusive and from which
there is no appeal or a new trial under section 38 of
that Act does not ordinarily take much time to be
obtained or to be carried out and certainly much less
than what is taken to obtain a decree for possession
in a snit and to execute such decree, because both the
decree for possession in a suit arid the order for
execution thereof are subject to appeal.
The Legislature may well have thought that cases where orders
for possession had been made under Chapter VII of
the Presidency Small Cause Courts Act with respect '
to premises which were situate within the small area
of the ordinary original civil jurisdiction of the
Calcutta High Court and which, in spite of such
orders, were sti]j in the possession of the tenants at
the date of the commencement of Act XVII of 1950
would be few in number as compared to the number
. of cases where decrees for possession had been made
with respect to premises which were situate within a
very much larger area and which were still in the
possession of the tenants and, therefore, did not
think fit to provide for those few cases.
It, must
always be borne in mind, as said by Lord Halsbury
in Commissioner for Special Piirposes of Income Tax
v. Pemsel ('),that it is not competent to any Court to
proceed upon the assumption that the Legislature
(I) L, R. [t891) A. C, 531 at p. 5+9·
•
S.C.R.
SUPREME COUR'r REPORTS
545
has made a mistake.
The Court must proceed on the
1958
footing that the Legislature intended what it has
Nalinakhya
said.
Even if there is some defect in the phraseology
Bysack .
used by the Legislature the Court cannot, as poinwed
v.
out in Crawford y. Spooner (1), aid the Legislature's Shyam Sunder
defective phrasing of an Act or add and amend or,
Haldar
d fi ·
·
h' h
l f
and Others.
by construction, make up e ciencies w 10 are e t
in the Act.
Even where there is a casus omissus, it is,
as said by Lord l:tussell of Killowen in Hansraj Gupta
v. Official Liquidator of Dehra Dun-Mussoorie Electric
Tramway Co., Ltd. (2), for others tlian the Courts to
remedy the defect.
In our view it is uot right to
gi.ve to· the word " decree" a meaning other than its
ordinary accepted meaning and we are bound to say,
in spite of our profound respect for the opinions of
the learned Judges who decided them, that the
several cases relied on by the respondent were not
correctly decided.
Reference was made, in course of argument, to
section 6 of the West Bengal Act LXII of 1950.
That section refers to orders or decrees made between
the commencement of Act XVII of 1950 and Act
LXII of 1950, i.e., between the 30th March, 1950,
and the 30th November, 1950, and cannot have any
application to the order for possession made in this
case on the '27th February, 1950.
For reasons stated above this appeal must be
allowed and the order made by the High Court should
be set aside and the respondents' application under
section 18 (1) of Act XVII of 1950 should be dismissed and we order accordingly. In the circumstances of this case we make no order as to costs
except that the parties should bear their own costs
throughout.
Appeal allowed.
Agent for the appellant: S. C. Bannerji.
Agent for' the r~spondent : Sukumar Ghose.
(1) 6 Moo. P.C. l; 4 MJ.A. 179·
(2) (19~3) L.R. 60 I.A, 13; A.l.R. 193~ P.C. 6~,
Das J .