- (1.) This appeal is directed against the judgment and order of a Bench of the Calcutta High Court passed on 9-4-1951 in Civil Rule No. 1038 of 1950. The facts leading up to this appeal may be shortly stated as follows:
(2.) 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 ground floor of Premises No. 6, Roy Began Street, Calcutta, at a monthly rent of Rs . 25 payable according to the Bengali Calendar month. On 29th Baisakh 1356 B.S. the appellant gave notice to the respondents too quit the premises on or before 7th Jaistha 1356 B. S. The respondents having failed to comply with the notice, the appellant on 1-6-1949 instituted proceedings under Chap 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 facto for non-payment of rent for three consecutive months in terms of S. 12(3) of the West Bengal Premises Rent Cntrol Act, 1948. The respondents on 6-7-1949 deposited into Court Rs. 233-7-0 and on 8-7-1949 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 27-2-1950 and the respondents not having appeared it was heard exparte and an order was made directing the delivery of possession of the premises to the appellant on 3-5-l950. In the meantime on 31-3-1950 the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (Act 17 of 1950) came into force. On 29-5-1950 the respondents filed an application in the trial Court under S. 18 of the said Act for vacating the order for possession. On 5-8-1950 the trial Court made an order upon terms which, as set out in the respondents' case, are as follows: "5-6-1950. On consent all arrears of rent up to Jaistha 1357 B.S. with interest at 9 p.c. 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 4-7-1950. To date fixed for payment and orders. All proceedings and execution stayed untill further orders." The agreed amount having been paid the order for possession was vacated on 4-7-1950. The order as recorded in the order sheet reads as follows : "4-7-1950. Parties present as before Defendant carries out the order of the learned Court, dated 5-6-1950. Money deposited in Court as ordered. Accordingly order of decree for possession is vacated. Money in Court is allowed to be withdrawn by the plaintiff's pleader under power." The appellant on 1-3-1950 moved the High Court under Sec. 115, Civil P.C., for setting aside the order of the trial Court passed on 4-7-1950. While the application was pending before the High Court the West Bengal Premises Rent Control (Temporary Provisions) Amendment Act. 1950 (Act 62 of 1950) came into force on 30-11-1950. On 9-4-1951 the High Court following an earlier decision of another. Bench of that Court in Atulya Dhan v. Sudhangsu, AIR 1951 Cal. 32(A) dismissed the application. On 30-11-1951 the High Court granted leave to the appellant to appeal to this Court and issued a certificate under the provisions of Art. 133(1) (c) of the Constitution of India.
(3.) As already stated, the proceedings out of which the present appeal arises were instituted under Chap. VII of the Presidency Small Cause Courts Act, 1882. Chapter VII of that Act which is intituled "Recovery of possession of Immovable Property" allows 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 S. 41, be entitled to an order addressed to a Bailiff of the Court directing him to give possession of the property to the applicant on such date as the Court thinks fit to name in such order. Although under the rules framed under the Act this application under S. 41 is initiated by a plaint there is no dispute that the proceeding is not a suit and the order for delivery of possession does not strictly speaking amount to a decree for recovery of possession. See Meherbai v. Pherozshaw Sorabji, AIR 1927 Bom. 556 (B). Indeed S. 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 S. 18(1) of Act 17 of 1950 applies to an order for possession made under S. 43 of the Presidency Small Cause Court; Act, 1882.;