- (1.) A reference has been made to this Court purported to be under Section 69 of the Presidency Small Cause Courts Act, 1882, as regards the maintainability of a suit for mesne profits by the landlord against the thika tenant following the order for ejectment under Section 5(1) of the Calcutta Thika Tenancy Act.
(2.) In view of the order proposed to be passed by us, it is not necessary to State the fact of the matter in great detail. Suffice it to point out that a suit was filed by the plaintiff marked as Suit No. 2155 of 1965 for recovery of a sum of Rs. 1442.67p. for the period 7.8.62 to 8.8.65 at the rate of Rs. 40/- per month from the defendants against whom an order for eviction had been made by the Thika Controller in a proceeding under Section 5 of the Calcutta Thika Tenancy Act, 1949. The relevant provisions of the 1949 Act are:- "4. Notice before ejectment. - It shall not be competent for a landlord to eject any thika tenant from his holding unless the landlord has given the thika tenant notice in the manner provided in Section 106 of the Transfer of Property Act, 1882- (a) in the case where he wishes to eject the thika tenant on the ground specified in Clause (i) of sub-section (1) of Section 3 at least one months' notice in writing expiring with the end of a month of the tenancy ; and (b) in the case where he wishes to eject the thika tenant on the ground specified in Clause (ii) of sub-section (1) of Section 3 at least three months' notice in writing expiring with the end of a month of the tenancy. 5. Proceedings for ejectment.-(1) Notwithstanding anything contained in any other law for the time being in force a landlord wishing to eject a thika tenant on one or more of the grounds specified in Section 3 shall apply in the prescribed manner to the Controller for an order in that behalf and, on receipt of such application, the Controller shall, after giving the thika tenant a notice to show cause within thirty days from the date of service of the notice why the application shall not be allowed and after making an enquiry in the prescribed manner either allow the application or reject it after recording the reasons for making such order, and if he allows the application, shall make an order directing the thika tenant to vacate the holding and, subject to the provisions of Section 10, to put the landlord in possession thereof. (2) No order allowing an application, under sub-section (1) shall be made in a case where compensation is payable under the proviso to Section 4 unless and until the amount of compensation so payable has been either paid to the thika tenant or deposited with the Controller."
(3.) Section 5 of the Act contains a non-obstante clause which is of wide amplitude. Sub-section (2) of Section 5 provides for an embargo in the matter of passing of a decree in terms of sub-section (1) thereof in the event, the compensation payable under proviso to Section 4 has not been paid. Sub-section (2) of Section 5 bars passing of a decree. Once a decree is passed, the same has to be set aside either on the ground that the same was a nullity having been passed in violation of the condition precedent therefor, namely, compliance with the requirement of the proviso appended to Section 4 of the Act. However, unless such an objection is taken, in our opinion, a decree for ejectment having been passed against a thika tenant, the same, in absence of any other material-on-record will have to be executed on the basis that the said decree is valid. Furthermore, the question of payment of compensation in terms of proviso appended to Section 4 of the Act will arise only in a case where the conditions precedent therefor exist. Proviso appended to Section 4 as well as sub-section (2) of Section 5, therefore, have to be read together. We may also point out that in terms of Section 114 of the Evidence Act, whenever a decree is passed, a presumption will also arise that the official act has been done in the regular course of business. Having laid down the law, we are of the opinion that the said law has to be applied in the facts of the matter in each case. There cannot, however, be any doubt whatsoever that mesne profits are payable only when a person is in wrongful occupation and not when he is protected in terms of the provision of a statute, but that by itself will not be a bar in realising the contractual amount of rent. The reference is thus answered. Let the records be sent down to the Court below forthwith.;