P L D 1964 Dacca 177 (PLP)

4. On an appeal preferred by the principal respondents, the learned Subordinate Judge, however, took the view that although in terms of the second appeal, as preferred to this Court, had been regarded as having abated and although there was no stay of execution of the decree for ejectment, yet in substance and effect the abatement in regard to the appeal being caused by operation of the statute, it resulted in the abatement of the suit or the entire proceedings out of which the appeal had arisen, and that as such for all practical purposes the suit for eject ment should be regarded as having abated, and the original decree as passed therein by the trial Court and confirmed by the appellate Court should be regarded as having been reversed and as being of no effect. He also found that although some of the judgment‑debtors did not join the applicants for restitution under section 144 of the Code of Civil Procedure yet they were made parties, and as such, there was no defect of parties in the relevant proceeding. The claim of mesne profits having been withdrawn, the learned Subordinate Judge allowed the appeal and the application for restoration under section 144 of the Code of Civil Procedure.

5. The plaintiffs, decree‑holders, have come up on appeal to this Court against the decision of the learned Subordinate Judge.

6. Mr. Shamsuddin Ahmed with Mr. Md. Behtar Ali appearing on behalf of the appellants has contended before me that the learned Subordinate Judge erred in law in holding that the operation of the relevant statute affected the original eject ment decree and not merely the second appeal itself. His conten tion in substance is of two‑fold nature. His first contention is that in view of the language employed in section 3 of the East Bengal Service Tenants (Protection) Act, 1952 (East Bengal Act, IX of 1952) ; hereinafter referred to as the Act, it could be suggested by any stretch of imagination that in a case where an appeal was pending before a Civil Court on 5th November 1952, and as such, would abate, the disputed property should be allowed to be recovered by the judgment‑debtor on the strength of the provision under section 144, Civil Procedure Code. His second contention is that even if it were conceded for the sake of argument that the cause of action in the suit was still alive at the stage of the second appeal and if it were further con ceded that the suit as such bad abated by reason of the operation of section 3 of the said Act yet there being no reversal or variance of the decree within the meaning of section 144, Civil Procedure Code the tenant judgment‑debtor were not entitled in law to get restitution of the property concerned.

7. Mr. Mozammel Huq, the learned Advocate for the principal respondents Nos. 1 to 3 has, however, contended in reply that the language of section 3 of the said Act makes it quite clear that though in the stage of a second appeal yet the cause of action in the suit was kept alive, and that as such the suit itself should be deemed to have abated. He has further contended that section 144, Civil Procedure Code is not exhaustive, an abatement by operation of law surely contemplated by the Legislature in so far it might be relevant for the purpose of considering as to whether the original decree in ejectment could be said to have been reversed or varied in the circumstances of the case.

8. From the judgment and order, Exh. 2 as passed in this Court on 29th January 1957, in Second Appeal No. 729 of 1951, it appears to have been observed that there can be no doubt that the suit as instituted by the landlord was suit for ejectment of a Chakran tenant which was clearly affected by the said Act. It was accordingly ordered to be recorded that this appeal had abated by reason of the provisions of section 3 of the said Act. The language as employed in section 3 of the East Bengal Service Tenants (Protection) Ordinance, 1952, East Bengal Ordi nance I of 1952, seems to be the same as in the said Act. It is not disputed that the judgment‑debtors petitioners who applied for restitution under section 144, Civil Procedure Code were service tenants within the meaning of this Act. A "service tenant" means a person who holds land under another person for agricultural or horticultural purpose or for the purpose of residence, free of rent, in consideration of some service to be rendered by him to that person, under the system usually known as Nankar Chakran or the like. By section 3 of the said Act it has been indicated amongst other things that no Civil Court (after the coming into force of this Act) should entertain any application for execution of a decree for ejectment of a service tenant and that such application or proceedings as also any suit for ejectment of such tenant if pending before a Civil Court shall not be further proceeded with and shall abate. By an explanation it has further been added that "suit" includes appeal. The object of this Act can be gathered from the preamble which provides for provisions for the protection of service tenants from ejectment. The question is as to whether a service tenant who had already been ejected before the promulgation of the Ordinance or of the Act could claim restitution simply because his appeal was pending before a Civil Court. It is not disputed that this High Court comes within the meaning of Civil Court as defined in the said Act. As indicated above, by refer ence to the judgment and order as per Exh. 2, it seems quite clear that the learned Judge who disposed of the second appeal had reasons to think that the suit being a suit for ejectment of a Chakran tenant was clearly affected by the said Act. Be that as it may, as there is no clear and express finding in that way by the learned Judge in the said judgment, it has become neces sary, as urged by the learned Advocate for the appellants, to determine the question as to whether as a result of the abate ment of the appeal as recorded in Exh. 2, the original decree for ejectment as passed by the trial Court and confirmed by the First Appellate Court, could be said to have been affected by the operation of the said Act.

9. This leads us to the consideration of the question as to whether it could be said that the cause of action for ejectment as formulated in the suit could be said to have been kept alive as a result of a second appeal preferred against the decision of the First Appellate Court confirming the judgment and decree of the trial Court. From the explanation as indicated in section 3 of the said Act it follows that a suit includes an appeal. But still then the learned Advocate has contended that an appeal does not necessarily mean to be co‑extensive with a suit. It is needless to mention here that the scope of an appeal is almost co‑extensive with that of a suit. Section 107, Civil Pro cedure Code defines the powers of an appellate Court, and it is provided therein that an appellate Court shall have powers to determine a case finally, to remand a case, to frame issues and refer them for trial, to take additional evidence or to require such evidence to be taken and that subject as aforesaid, the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. There is no indication in the East Bengal Service Tenants (Protection) Act, 1952, as to any condi tion or limitation prescribed in regard to an appellate Court. Apart from that an appellate Tribunal has the same power for .s the ends of justice to dispose of the matter as the original Court. It is only change of forum with no real or essential difference in the character of the two forms of Courts except that one is inferior and other higher. In the Oxford English Dictionary, Volume I, "appeal" has been indicated to mean "to remove a case formally from an inferior to a higher Court", so that according to this meaning or interpretation the case itself is brought from an inferior Court to a higher Court for adjudication by a higher Tribunal. It is difficult to suggest in such circumstances that only a limited part of the case gets the atten tion of the higher Court. The whole case as brought by the plaintiff and contested at the instance of the defendants and then adjudicated upon by the original Court comes before an appellate Court for a proper disposal in relation to its entire aspect and not to a partial view of the matter. The test, in my view, is that an order of an appellate Court in setting aside or modifying the decision of an inferior Court becomes binding, and not only in the case of an affirmance but also in the case of modification or reversal the judgment and decree passed by an original Court become merged in the corresponding judgment and decree of the appellate Court. In my view, therefore, the litigation which starts at the instance of the plaintiff and continues as a contested one up till the highest Court is kept alive at the instance of the parties from one stage to another, that it is to say, the cause of action which is said to have given rise to the subject‑matter of the suit is kept alive and becomes the subject‑matter of consideration and adjudication in the hands of the appellate Court. I am, therefore, inclined to think that although for ordinary purposes the proceeding may be charac terised as an appeal yet the substance of the proceeding which starts at one stage in the suit continue to be so, though at a subsequent stage it might be called an appeal. In this view of the matter I am further inclined to think that the suit as such, though in the form of a second appeal, was pending before this Court, and not only the appeal but the suit itself abated by operation of the relevant statute. If it were suggested that there was some ambiguity in the use of the language in section 3 of the said Act that can be resolved by reference to the object of the Act indicated in the preamble according to which the Legislature intended to protect a service tenant. It becomes al the more clear by reference to the provision of section 4 of the said Act whereby reference has been made to Chapter III of the East Bengal State Acquisition and Tenancy Act, 1950, which contemplates a possible case of acquisition of occupancy right also by the service tenant in certain circumstances. It seems the intention of the Legislature was to give more and higher right to a service tenant than before.

10. The next contention of the learned Advocate for the appellants is that even if by an abatement does not afford a case in favour of the appeal the suit itself was regarded as having abated yet such an abatement does not afford a case in favour of the judgment‑debtor for restitution of their property under section 144, Civil Procedure Code. The learned Advocate has contended that section 144, Civil Procedure Code provides for a variance or reversal of a decree, and according to him abatement can by no stretch of imagination mean that the decree in question was varied or reversed in the present case. From the same Oxford English Dictionary we get the meaning of the word "abatement". It is : "to be at an end, to become null or void". And from Volume 8 of the same Oxford English Dictionary the word "reverse" means to revoke, abrogate, annul (a decree, act, measure, etc). The learned Advocate has placed no authority before me to indicate as to whether in substance and effect there is much distinction between the two expressions "abatement" and "reversal". O the other hand, from the interpretation of two words as w gather from the Oxford English Dictionary it seems that when ever a decree is said to have abated or is said to have bee reversed the result is that the decree comes to an end or lose all its effect as if it were non‑est. It thus appears that although the Legislature used the expression "shall abate" in section 3 of the said Act yet the Legislature had in view, particularly in reference to the pending proceeding which resulted at an early stage in a decree in favour of the landlord for ejectment and also in his getting possession through Court on the basis of such suit or proceeding, or, in other words, the immovable property concerned should be allowed to be restored to the judgment‑debtor concerned who might be a service tenant. There is no doubt in my mind that the words "shall abate" clearly indicates the decree, if any, passed at an earlier stage in any inferior Court affecting service tenant was intended come to an end, and as such, the decree for ejectment on the strength of which the appellants got possession of the relevant property came to an end, rather, it became non‑est. There is, therefore, not much distinction in the expressions "abatement" and "reversal" as contended by the learned Advocate for the appel lants. Unlike an abatement which takes place due to non- substitution of legal representations on the death of a particular party in a pending proceeding, where the law provides for its setting aside within a prescribed time, a statutory abatement, as in the instant case, seems to stand on a different footing.

11. The learned Advocate for the appellants has next con tended that section 144 of the Code does not indicate that a decree when not varied or reversed in the manner indicated therein should give rise to a right on the part of the judgment debtor to claim the property back on the strength of that section.

12. The learned Advocate for the respondents has contended that there have been many decisions in support of the proposition that the scope and ambit of section 144, Civil Procedure Code is not exhaustive in character. He has referred to several decisions in the case of Jai Berham and others v. Kedar Nath Marwari and others and Kedar Nath Marwari and others v. Jai Berham and others (AIR 1922 P C 269), Sufal Chandra Golui and another v. Surendra Nath Dhara (A I R 1935 Cal. 90), Jugendra Noth Singh v. Hira Sahu and others (A I R 1948 All. 352), Makbul Alam Khan v. Mst. Kodaija Begum (A I R 1949 Pat. 133), Hamejaddl Howladar and another v. Maminaddi Sheikh and another (P L D 1959 Dacca 304) and Ahmadul Hug v. Dr. Abdul Quddus Khan and others (P L D 1960 Dacca 452). Their Lordships of the Privy Council in the case of Jai Berham and others v. Kedar Math Marwari and others and Kedar Nath Marwari and others v. Jai Berham and others, laid down that: "It is the duty of the Court under section 144 of the Civil Procedure Code to place the parties in the position which they would have occupied, but for such part thereof as has been varied or reversed." Their Lordships further observed: "Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circum stances towards all parties involved." As in the case of Rodger v. Comptoir D'Escompte De Paris (LR3PC465), it was also observed as quoted in the case of Hamejaddi and another v. Maminaddi Sheikh and another, as follows: "The power of a Court to direct restitution is inherent in the Court itself. It rests on the principle that a Court of Justice is under a duty to repair the injury done to a party by its act." In the Full Bench decision of the Allababad High Court (A I R 1948 All. 252, it has similarly been observed that every' Court has a paramount duty to insure that it does not in jury to any litigant, and has also been laid down in another case reported in A I R 1949 Pat. 133 that the expression `varied or reversed' has been construed as meaning not necessarily varied or reversed by a Supreme Court. It was observed that the section was not to be construed in a limited sense. The Calcutta view is also of the same type, that is to say, section 144 of the Code has been found as being not exhaustive. The learned Advocate for the appellants referred to a decision of the Privy Council in the case of S. N. Banerji and another v. The Kuchwar Lime and Stone Company Ltd. (in Liquidation) (46 C W N 374 (P C)). It, however, appears on a reference to, the facts of that case that the person who claimed restitution under section 144, Civil Procedure Code was not placed in possession by an act of Court. As such his prayer for restitution in the circumstances of the case was not allowed as being one capable of being entertained under section 144 of the Code or under any other provisions of the Code. Keeping the trend of decisions in view it seems quite clear that where it appears that by an act of Court a particular party has lost his possession of the property he is entitled to ask for restitution of the same after the decree order on the strength of which he has been dispossessed is set aside or H reversed or otherwise comes to an end as being null and void, and that he is entitled to get protection of the Court in the shape of an order for restitution under section 144, Civil Procedure Code. In this case it appears that the judgment‑debtors who are service tenants were ejected from their properties as a result of a decree for ejectment which subsequently by opera tion of the statute referred to above lost all its force, rather, became non‑est for all practical purposes, and as such, became fit to be regarded as varied or reversed within the meaning of section 144, Civil Procedure Code. I am, therefore, of the opinion that these judgment‑debtors were in law entitled to get back the properties in view of the fact that the ejectment decree in question became null and void as a result of the promulgation of the Act referred to above.

13. For all these reasons I am inclined to think that the learned Subordinate Judge was right in allowing the application for restitution under section 144 of the Code of Civil Procedure. All the contentions advanced by the learned Advocate for the appellants, therefore, fail.

14. In the result this appeal fails and is accordingly dis missed. In view of the fact that this case appears to be one of the first impression, I do not make any order as to costs. Leave to appeal under clause (15) of the Letters Patent asked for is accordingly granted. S.Q/K.B.A . Appeal dismissed.