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Bireswar Banerjee and ors. Vs. Smt. Sukla Guha - Court Judgment

LegalCrystal Citation
Subject;Tenancy;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 9 of 1981
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115(2); Assam Urban Areas Rent Control Act, 1956 - Sections 5(4) and 8
AppellantBireswar Banerjee and ors.
RespondentSmt. Sukla Guha
Appellant AdvocateP. Choudhuri, Adv.
Respondent AdvocateS.K. Sen and P. Kalita, Advs.
DispositionPetition dismissed
Excerpt:
- .....of the learned sadar munsiff has filed the instant revision petition under section 115 of the code of civil procedure. a preliminary objection has been raised with regard to the maintainability of the revision petition. it was submitted on behalf of the respondent that as an order passed under sub-section (4) of section 5 of the act is appealable, no revision would lie. i find substance in this contention. section 8 of the act provides that a landlord or a tenant aggrieved by any decision or order of the court under the provisions of sections 4, 5 and 7(2) of this act shall have a right of appeal against the same as if such decision or order were a decree in a suit for ejectment of the tenant from the house and such appellate court's decision shall be final.' section 2(a) defines.....
Judgment:

T.S. Misra, C.J.

1. This revision is directed against an order dated 29th July, 1980 passed by the Sadar Munsiff, Gauhati under Section 5(4) of the Assam Urban Areas Rent Control Act, hereinafter called the Act. The respondent had sought to deposit the rent under Subsection (4) of Section 5 of the Act. That was opposed by the present petitioners. The learned Munsiff passed the following order on that application :

'In view of the above in my opinion I have no power under Section 5(4) of the Assam Urban Areas Rent Control Act to refuse a petitioner from depositing the rent in court. Under the circumstances money deposited under the above provision of the Act is only a measure for deciding whether the tenant is a defaulter or not. The parties are at liberty to withdraw the money on application made to this Court. With the above observation I dispose of this case.'

2. The landlords being aggrieved by this order of the learned Sadar Munsiff has filed the instant revision petition under Section 115 of the Code of Civil Procedure. A preliminary objection has been raised with regard to the maintainability of the revision petition. It was submitted on behalf of the respondent that as an order passed under Sub-section (4) of Section 5 of the Act is appealable, no revision would lie. I find substance in this contention. Section 8 of the Act provides that a landlord or a tenant aggrieved by any decision or order of the Court under the provisions of Sections 4, 5 and 7(2) of this Act shall have a right of appeal against the same as if such decision or order were a decree in a suit for ejectment of the tenant from the house and such appellate Court's decision shall be final.' Section 2(a) defines 'Court', 'Court' means the Court of ordinary Civil Jurisdiction in the area in which a house is situated which would be competent to pass a decree for the eviction of a tenant from that house.' An application under Section 5(4) pf the Act was filed in the Court of the Sadar Munsiff, Gauhati. The landlords aggrieved by the order passed on that application could, therefore, tile an appeal under Section 8 of the Act in the Court of the Assistant District Judge. No appeal was, however, filed by the present landlords against the said order in the Court of the Assistant District Judge, Gauhati. On the contrary the landlords have filed the instant revision petition under Section 115 of the Code of Civil Procedure. In my view, this petition is not maintainable by reason of Sub-section (2) of Section 115 of the Code of Civil Procedure which provides that the High Court shall not, under Section 115, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. Since the appeal could He before the Assistant District Judge from the impugned order the instant revision in view of the provisions of Sub-section (2) of Section 115 of the Code of Civil Procedure is not maintainable, and, is, therefore, liable to be rejected.

3. For the reasons in the foregoing the revision petition is rejected as being not maintainable. No order as to costs.


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