K.J. Sengupta, J.
1. This appeal is directed against the order No.4 dated 18th of December, 1996 passed by the learned judge. 3rd Bench, City Civil Court at Calcutta in Title Suit No. 3660 of 1996, granting an ad interim injunction in favour of the respondent No. 1 restraining the appellants from evicting him from the suit premises till disposal of the injunction application.
2. In short, the facts of the case infer alia, are that the appellants are the owners of premises No. 30, Creeck Row, Calcutta-14. The respondent No. 2 was the licensee in respect of 7 rooms on the first floor of the suit premises with clear understanding that he would vacate the suit premises as and when demanded by the owners. Since, in spite of repeated demands, the licensee did not vacate the suit premises, the appellants along with their mother Sudhanghshudebi Moitra. since deceased, filed SCC Suit No. 2766 of 1982 under section 41 of the Presidency Small Cause Courts Act for eviction of the said licensee namely, the respondent No. 2. In the said suit one Badal Ch. Sen was made defendant No. 2, who was living along with the respondent No. 2 in the suit premises at the relevant time, without any authority.
3. In the said suit, both the respondent No. 2 and Badal Ch. Sen entered appearance, but the written statement was filed only by therespondent No. 2 denying and disputing the allegations made in the plaint. Ultimately, however, as the respondent No. 2 did not appear when the suit was called for hearing, the same was decreed ex parte against the defendants on 13th of March, 1986. The said decree was put into execution for taking delivery of possession of the suit premises, by the plaintiffs but the same was resisted by the respondent no. 2 and as such, the appellants prayed for appropriate police help. Accordingly, the bailif went to the site for delivering possession of the suit premises with the assistance of the police, but as the police assistance was inadequate, possession could not be delivered. The appellants thereafter, filed an application for more police help which was allowed by the executing Court.
4. In the meantime, the respondent No. 1 filed title suit no. 3660 of 1996 in the Court of learned judge, 3rd Bench, City Civil Court, Calcutta against the appellants as well as their deceased mother Sudhanghshudevi Moitra and also against the respondent no. 2, claiming inter alia for a declaration that he was a bonafide tenant under the appellants in respect of the suit premises and that the appellants were not entitled to execute the decree passed in the aforesaid SCC Suit No. 2786 of 1982 since it was a nullity, and also for permanent injunction. In the said suit, the respondent No.1 also filed an application for temporary injunction upon which the learned judge of the Court below was pleased to pass an ex parte ad interim order of injunction by his order No. 4 dated 18.12.96, which is the subject matter of challenge in the present appeal.
5. Mr. Roy Chowdhury, learned senior counsel, appearing on behalf of the appellants inter alia, contended that since section 48 of the Presidency Small Cause Courts Act provides that Code of Civil Procedure would apply to all proceedings under Chapter VII of the said Act, the proceeding, initiated by the appellants against the respondent no. 2 for his eviction from the suit premises as a licensee filed under section 41 of the Presidency Small Cause Courts Act being a proceeding under Chapter VII of the said Act, would also be covered by section 48 of the same, and as such, as the execution case was pending, the only course for the respondent No. 1 was to challenge the order of eviction in the execution proceeding, but he could not file a seperate title suit in view of the provisions of Order 21 Rule 101 of the Code of Civil Procedure and referred to the decisions reported in : AIR1950Cal244 ; : AIR1954Mad985 and 1997(1) CHN 495.
6. Mr Roy Chowdhury further contended that since the impugned order did not satisfy the tests laid down by the Supreme Court in its decisions reported in : [1993]3SCR522 and 1994(4) SCC 255, the impugned order should be set aside.
7. Mr. Roy Chowdhury lastly contended that since the respondent no. 1 is nothing but a trespasser, he is not entitled to get an injunction against the owner as held by the Supreme Court in : [1995]1SCR543 .
8. Mr Dasgupta, learned senior counsel, on behalf of the respondent no. 1 contended infer alia, that since a proceeding under section 41 of the Presidency Small Cause Courts Act is not a suit and the order for delivery of possession under section 43 of the said Act is not a decree, no separate execution proceeding is required to be filed, and as such, no separate execution proceeding could be started by the appellantsand if there was no separate execution proceeding, the question of filing objection under section 47 or Order 21 Rule 97 of the Code of Civil Procedure by the respondent No.1 did not arise at all,
9. Mr. Dasgupta also referred to sections 18 and 19 of the Presidency Small Cause Courts Act specially clauses (d) and (g) of section 19. in order to substantiate his point that Small Causes Court has no jurisdiction to try a suit for recovery of immovable property or for determination of any other right, title and interest in immovable property.
10. Mr. Dasgupta also contended that section 49 of Small Cause Courts Act provides for suit in relation to an order passed in a proceeding under section 41 of the Presidency Small Cause Courts Act. According to Mr. Dasgupta the said section contemplates that order for recovery of possession of any premises under Chapter VII shall be no bar to the institution of a suit in the City Civil Court for trying the title therein.
11. Lastly. Mr. Dasgupta contended that the provisions of Order 21 of the Code of Civil Procedure are not applicable in the present case, specially, Order 21 rule 97 to 101 thereof.
12. So far as the Judgments cited by Mr. Roy Chowdhury are concerned. Mr. Dasgupta contended that the principle laid down in the decision reported in 1997(1) CHN 495 is not applicable to the facts of the present case and the decision in : AIR1950Cal244 which was a Single Bench decision, was contrary to the Division Bench judgement reported in 83 CLJ 328 and the decision reported in : AIR1954Mad985 also has no manner of application to the facts of the present case. Mr. Dasgupta also referred to the decision of the Division Bench of this Hon'ble Court reported in 89 CWN 400, in support of his contention, that the suit of the present nature is maintainable in law.
13. So far as the decisions reported in : [1993]3SCR522 and : (1994)4SCC225 are concerned, according to Mr Dasgupta, those are also distinguishable on facts, inasmuch as, since police help has already been requisitioned by the appellants for recovery of possession, there is an imminent threat of dispossession and as such, the court below has rightly passed the impugned order in the facts of the present case and as the respondent No. 1 has a good prima facie for going to trial, the court below rightly granted ad interim injunction and also referred to the decisions reported in AIR 1968 SC 620: : AIR1989SC2097 ; : 1977CriLJ433 and AIR 1924 P.C.
Mr. Dasgupta also contended that as the respondent No. 3 claimstenancy right in respect of the suit premises under the appellants, hecannot be a trespasser as alleged by the appellants and as such, theratio of the decision in : [1995]1SCR543 does not apply to the presentcase.
14. As it was submitted by Mr. Roy Chowdhury that Badal Ch. Sen and the present respondent No. 1 were one and the same person this court issued notice upon the respondent No.1 who appeared and was examined and cross-examined by the parties. Several witnesses were also examined by the appellants in order to prove that the identity of the said Badal Ch. Sen and the respondent No.1 is the same.
15. Considering the respective contentions of the learned Counsels.we are, however, of the view that the submissions of Mr. Dasgupta are well founded.
16. Chapter VII covering sections 41 to 49 of the Presidency Small Cause Courts Act provides for a summary procedure for eviction of tenants or licensees, but a proceeding under section 41 of the Presidency Small Cause Courts Act, 1882 is not a suit, and the order for delivery of possesion under section 43 of the said Act is not a decree as has been held by the Supreme Court in the case of Nalinakhya Bysack v Shyam Sundar Haldar and Ors. : [1953]4SCR533 .
17. Section 18 of the Act provides the nature of the suits which may be tried by the Small Cause Court and section 19 of the Act mentions about suits over which Small Cause Court has no jurisdiction. Clauses (d) and (g) of the said section 19 provide that the Small Cause Court has no jurisdiction to try a suit for recovery of immovable property or for the determination of any other right, title and interest in immovable property.
18. Section 48 of the Act states that in all proceedings under Chapter VII of the Act, the Small Cause Court shall, as far as may be and except as otherwise provided in the said Act, follow the procedure prescribed for a court of first instance by the Code of Civil Procedure. In a Single Bench decision of the Madras High Court in the case of Mahomed Ghouse Sahib v: Shaik Mohidden Sahib AIR 1924 Madras 74, it has been held that section 48 of the Small Cause Courts Act applies provisions of the Code of Civil Procedure proceedings under Chapter VII of the Act and the language of the said section is wide enough to include the power to act under Order 21 rule 98 CPC, also to remove the improper obstruction in carrying out its own order. Roxburgh, J. in the case of Rajani Kanto Das v. Dayal Chand De and Ors., : AIR1950Cal244 , also held that in the case of a proceeding for recovery of possession under Chapter VII of the Presidency Small Cause Courts Act, the person claiming to be in no way bound by the Court's order, is to act as per the provisions of Order 21 CPC as His Lordship observed in paragraph 10 of the said decision infer a Ha, as follows :-
' (10 Are we to say that in the case of a proceeding for recovery of possession under Chap. VII of the Act the person claiming to be in no way bound by the Court's order has no remedy because there is no procedure providing for him to be heard. In my opinion, the answer is clearly, no, and the reason why no specific rules have been framed under section 9 of the Act for such a procedure are that such rules could not be framed because of the provisions of section 48 in Chap. VII itself which I have already referred to. The Act itself provides that the procedure in the Small Cause Courts in these matters under Chap. VII is to be the same as that prescribed in what may be called a mofussil Court by the Civil Procedure Code. In my opinion, this automatically brings into operation the provisions of Chap. (Order?) XXI and in particular the rules relating to the procedure for hearing claims.'
19. Another Single Bench judgment of the Madras High Court in the case of State of Madras v. Rallis India Limited, Dare House, G.T. Madras, : AIR1954Mad984 has also observed on the same line holding inter alia, as follows :-
' Under section 48, Presidency Small Cause Courts Act, the provisions of the Civil Procedure Code are made applicable to all proceedingsunder Chapter VII. It states that in all proceedings under this chapter, the Small Cause Courts shall as far as may be and except as herein otherwise provided, follow the procedure prescribed for a Court of first instance by the Civil Procedure Code. The machinery provided therefore under the Civil Procedure Code for delivery of possession of immovable property in cases where a decree for possession was granted, is attracted by virtue of section 48 to proceedings under Chapter VII of the Provincial Small Cause Courts Act.
The relevant provisions in the Code are contained in Order 21. R. 35 and Rules 97 onwards. Rule 35 provides for delivery of immovable property in respect of which there was a decree for possession. It provides that delivery of possession should be given to the party to which it has been adjudged or to such person as he may appoint to receive delivery on his behalf and power is given if necessary, to remove any person bound by the decree who refused to vacate the property. Rules 97 onwards provide for the procedure to be adopted in cases where there is resistance to delivery of possession to the decree-holder. If the tenant had continued in possession of the property after an order under section 41 of the Presidency Small Cause Courts Act was made, it is open under this proviso to remove the petitioners from possession of the land.'
20. The Division Bench of this Hon'ble Court, however, in the case of Amulya Ratan Bhattacharya v. Meghmala Dutta, 53 CWN 474 has held infer alia, that the order which is obtained in the Small Cause Court is in no way conclusive, and may be challenged under the provisions of sections 46, 47 and 49 of the Act. If an order for possession is made by the Small Cause Court, it can be challenged by the tenant or any other person aggrieved, under section 46 of the Act. Again under Section 49 an order of the Small Cause Court is no bar to a title suit, as the recovery of possession of any property under sections 41 to 43 of the Act is no bar to the institution of a suit under section 49 of the said Act in the High Court for trying the title thereto. It will be seen, therefore, that the order which is obtained in the Small Cause Court is very different from a decree for possession obtained in this Hon'ble Court, and the Small Cause Court cannot make a decree for possession which is final and conclusive between the parties, subject only to appeal.
21. The Division Bench of this Hon'ble Court in the case of Thakurdas Pushpraj v. Dwarka Prasad Bazar and Anr. 87 CLJ 181, referring to the above decision in the case of Amulya Ratan Bhattacharya (supra) also held inter alia, as follows :-
' Now, the exact nature of a proceeding under Chapter VII of the Presidency Small Cause Courts Act has been considered in a recent decision in the case of Amulya Ratan Bhattacharya v. Meghmala Dutta, 53 CWN 474. In this decision, it has been pointed out that the Jurisdiction of the Small Cause Court with regard to proceedings under sections 41 to 43 is of a summary character; and it has also been pointed out that any decision given by the Presidency Small Cause Courts under section 43 is not conclusive, and may be challenged under the provisions of section 46, 47 and 49 of the Act. It has further been pointed out that by virtue of section 19 of the Presidency Small Cause Courts Act, the Presidency Small Cause Court is not entitled to try any suit for recovery of possession.'
22. Moreover, under Clause (g) of section 19 of the Presidency SmallCause Court Act, the Presidency Small Cause Courts cannot determine any question of right to or interest in any immovable property. The right which the respondent No. 1 sought to enforce in the suit filed by him, is a tenancy right in the disputed premises and accordingly, we hold that the Small Cause Court has no jurisdiction to enter into that question.
23. P.B. Mukherjee, J. in the case of Surendra Chandra Mqjumdar v. Sm. Panchi Bibi, 83 CLJ 328. has also held inter alia, as follows: -
' On behalf of the defendant an attempt was made to argue that this suit was misconceived in view of section 47 of the Code of Civil Procedure but was ultimately abandoned by counsel and not pursued. I do not consider that the real dispute in this suit, namely, whether there was an agreement of tenancy between the plaintiff and the defendant is a matter relating to execution, discharge or satisfaction of any decree. It is a totally different cause of action arising on all agreement between the parties independently of any decree. Besides question under section 47 can only be decided by the Court executing the decree which in this case would be the Small Causes Court. But the Small Causes Court in my judgment has no jurisdiction to garnt either in a suit or in execution a delaration that the plaintiffs title is that of a monthly tenant or an injunction such as is being calimed in this suit. Besides the order of the Small Causes Court was an order under Chapter 7 of the Presidency Small Cause Courts Act and is not a decree as will appear from sections 41 and 43 of that Act. In fact section 49 of that Act provides that even recovery of possession under this Chapter of the Act shall be no bar to the institution of a suit in the High Court for trying the title to the property. In my Judgment this is such a suit for trying plaintiffs title.'
24. The Bench Decision of this Hon'ble Court in the case of Dipen Mukherjee and anr. v. Sm. Sandhyarani Chatterjee, 89 CWN 400, has also observed inter alia, that clauses (d) and (g) of the section 19 of the Presidency Small Cause Courts Act make it clear that Small Cause Court has no jurisdiction to try the suits for recovery of immovable property, of suits for determination of any other right to or interest in immovable property and on the terms of those two provisions. It is clear the Small Cause Court has no jurisdiction to try a suit for recovery of possession of immovable property which would necessarily include such a suit against a licensee as well. In the said decision it was further held that the proceeding under section 41 of the Presidency Small Cause Courts Act is not a suit and does not end in a decree. It remains a proceeding and a summary proceeding, which again is subject to a suit on the title as prescribed by section 49 of that Act.
25. From the above discussions, it is thus quite clear, specially with reference to section 49 of the Presidency Small Cause Courts Act, that recovery of the possession of any immovable property under Chapter VII of the Act shall be no bar to the institution of a suit for trying the title thereto. Moreover, clauses (d) and (g) of section 19 or section 49 of the Act have not been repealed and/or amended in any way as yet.
26. We are. therefore, of the view, that the suit as filed by the respondent No. 1 in the trial Court, in which he obtained an ad-Interim injunction, which is the subject matter of challenge in the present appeal is quite maintainable in law.
27. So far as the merits of the impugned order are concerned, we find that the court has given reasons for passing an ex-parte ad-interim injunction and therefor it cannot be said that the tests laid down in 1993(3) SCC 166 and : (1994)4SCC225 have not been followed by the trial court while passing the impugned order. So far as the decision in 1997(1) CHN 495 is concerned, that is also quite distinguishable on facts. Lastly, the decision cited by Mr. Roychowdhury in 1995(3) SCC 35, in our view, also does not help the appellants, inasmuch as, it has not yet been declared by any competant court, that the respondent no. 1 is a trespasser, more so. when the respondent No. 1 filed a comprehensive suit claiming tenancy right over the suit property. We are therefore of the view that the impugned order does not merit any interference. The appeal accordingly, stands dismissed without any order as to costs.
28. We, therefore, direct the trial court to hear out the injunction application positively within 3 (three) weeks from the date of communication of this order, no matter, how busy the trial court otherwise would be. Objection to the ad interim injunction application has to be filed by the appellants within ten days from date and reply, if any, to the same is to he filled within a week thereafter. No unnecessary adjournment is to be granted to any of the parties. We, however, make it clear that the trial court should make all endeavours to dispose of the suit as expeditiously as possible, but in any case within three months from the date of communication of this order. Written statement is to be filed within three weeks from date and no unnecessary adjournment is to be granted to any of the parties. If the parties do not co-operate with the court below in getting the injunction application and/or the suit heard out within the time as specified above, the court would be at liberty to proceed ex parte.
We, also, make it clear that we make no observation regarding the merits of the injunction application and also of the suit and we keep all questions open.
K.J. Sengupta, J
29. I agree.
30. Appeal dismissed