1. This is an application for a certificate in respect of a decision of a Division Bench of this Court (in A. F. Order D. No. 301 of 1959), D/- 21-11-1961, affirming the decree of the trial Court dated the 22nd April, 1959.
2. On 15th April, 1954, the respondent Girindra Mohan Hazra granted settlement of plots Nos. 23, 24 and 25 of the Calcutta Improvement Trust Scheme No. ZL. IV at Gray Street now known as P. 23. B. K. Paul Avenue measuring approximately 14 cottahs 2 chittaks 35 sq. ft of vacant land to the petitioner at rent of Es. 140,'-per month for a period of ten months, for the purpose of starting a timber business and the petitioner was given a right to build temporary structures thereon. For this settlement the petitioner executed a registered Kabuliat on 12th April, 1944. It is alleged that after the expiry of the said settlement the respondent assented to the petitioner continuing in possession, and accepted rent from. him and the petitioner held over as tenant on the same terms and conditions under which the lease was originally granted. In 1954 the respondent filed a suit against the petitioner and others in the Original Side of this Court for possession of the' said land at p. 23, B. K. Paul Avenue. The case made in the plaint was that the respondent had let out to the petitioner vacant land for ten months at a monthly rent of Rs. 140/-, and after the expiry of the lease he had let out the disputed land on a daily rent basis, and in August 1948 the petitioner vacated the premises. In early 1949 the respondent started construction of 16 or 17rooms but in April 1949, owing to his illness he left for Memari where he lay ill for one and a half years. In December 1950 he found the land in the wrongful occupation of the petitioner and others. The petitioner's defence to the said suit was that since 1944 he had been and still continued to be a monthly tenant under the plaintiff and he had lawfully constructed certain structures thereon for residential, manufacturing and business purposes. In 1949 he wanted to give facilities to the plaintiff to make the construction in the land but after constructing five rooms up to the lintel level the plaintiff gave up construction. The case of the petitioner further is that he took advantage of the pillars and walls and himself completed the structures by spending large sums of money.
3. Certain issues were raised before Datta J. before whom the suit came up for hearing and one of such issues was, -- 'Is the defendant No. a monthly tenant under the plaintiff as alleged in paragraph 3 of the written statement?' On 15th July, 1957, Datta, J. dismissed the suit holding that the petitioner had been holding over, after the expiry of the lease, and the plaintiff had assented to the continuance of such possession and there was no agreement to the contrary as contemplated by Section 116 of the Transfer of Property Act. He held that the petitioner was a monthly tenant under the plaintiff, as alleged in paragraph 3 of the written statement.
4. On 16th December, 1957, the respondent Girindra Mohan Hazra filed a suit being title suit No. 284 of 1957 in the City Civil Court at Calcutta against the petitioner for ejectment from the said premises No. P. 23, B. K. Paul Avenue and for mesne profits. In that plaint it was alleged that the defendant was in arrears of rent and was thus a defaulter and it was further alleged that ejectment notice had been served on the petitioner. The petitioner in his written statement denied that he was a monthly tenant in respect of any 'premises' within the meaning of the West Bengal Act XII of 1956. The petitioner also denied the service and validity of the notice to quit. On 18th February, 1958, the respondent filed a petition purporting to be under Section 17(3) of the West Bengal Premises Tenancy Act, 1956, for striking off the defence of the petitioner against delivery of possession on the ground that the petitioner had failed to deposit all arrears of rent and damages within one month of the service of the writ of summons as provided in Section 17 (i) of the West Bengal Act XII of 1956. On 24th February, 1958, the petitioner filed objection to the effect that he was not a tenant in respect of any 'premises' but he was a tenant only of a piece of land, and the West Bengal Act did not apply to the case, and, therefore, the respondent was not entitled to any relief under Section 17 of the Act.
5. On 8th April, 1958, the learned Judge of the City Civil Court allowed the respondent's application under Section 17(3) of the Act and ordered that the defence filed by the petitioner against the delivery of possession be struck off.
6. Against that order the petitioner filed an application in revision under Section 115 of the Code of Civil Procedure and a Rule was issued by thisCourt, On 5th February, 1959, B. K. Guha J. who heard the said Rule discharged the same on the footing that the order under Section 17 (3) of the Act had been rightly made and no case had been made out for interference with the decision of the court below.
7. On 13th March, 1959 the petitioner filed an application for amendment of the written statement in which he wanted to introduce the case that he was a thika tenant, but this prayer was rejected by the learned Judge of the City Civil Court before whom this application came up for hearing, and on 22nd April, 1959, Mr. B. K. Panda, the learned Judge of the City Civil Court, passed an ex parte decree for ejectment in favour of the respondent.
8. On 10th June, 1959 the petitioner filed an appeal against the decree and this appeal came up for hearing before a Division Bench of this Court consisting of Renupada Mukherjee and N. K. Sen, JJ. This Division Bench by their judgment, dated the 4th August, 1960, remanded the case back to the trial Court for the purpose of record- -ing necessary evidence for making a finding on the question of service of notice through private agency. This Division Bench came to the conclusion that the services of two notices of ejectment sent by post were bad in law, and the service of notice by private agency had not been proved. The Court below was directed to take additional evidence, if necessary, and to send back the records together with the finding on that evidence.
9. On 23rd November, 1960, the City Civil Court recorded its finding that there was a proper and valid service of notice to quit on the defendant. On 20th November, 1961 the appeal finally came up for hearing before a Division Bench consisting of Section K. Sen and Bijayesh Mukherji JJ. On 21st November, 1961 this Division Bench dismissed the appeal holding that there had been valid service of notice of ejectment, and that the appellant was not entitled to challenge the propriety of the decision under Section 17 (3) of the West Bengal Act which was barred by the principle of res judicata and also which, according to them, was a proper order made by the trial Court. They also held that the judgment of Datta J. did not decide the status of the petitioner's tenancy. It was further held by them that the petitioner was a tenant of a 'premises' within the meaning of the West Bengal Act, and he was not a tenant merely in respect of a vacant piece of land. It is against this judgment that the petitioner intends to prefer an appeal to the Supreme Court.
10. The judgment of the Division Bench being thus a judgment of affirmance of the decree of the trial Court, the petitioner, in order to entitle him to obtain a certificate from this Court, will have to establish that there are substantial questions of law involved and he will also have to satisfy the Court that the valuation test, as required by Article 133(i) (a) or (b) of the Constitution, is satisfied in this case.
11. With regard to the question of valuation there has been a good deal of controversy before us and lengthy arguments have been addressed by the learned Advocates for the respectiveparties. Dealing first with the question of valuation it appears from the plaint that the plaintiff landlord valued the suit at Rs. 1780/-. This was obviously done for the purpose of payment of court fees, and the valuation was made under Section 7 (ii) of the Court Fees Act. According to this section the valuation made for ejectment was Rs. 140/-X 12 i.e. Rs. 168o/- and for rent Rs. 100/-. In the absence of any material as to what was the value of the subject matter in dispute in the court of first instance the petitioner has attempted to bring his case within Article 133(i)(b) of the Constitution. His contention has been that under Article 133(i)(b), with regard to the value of the subject matter in dispute on the appeal to the Supreme Court, the material date is the date of the judgment appealed' from, and the subject matter of the dispute must be determined by looking at the portion of the decree sought to be got rid of, from the point of view of the appellant. In other words what is to be looked into is the judgment which affects the interest of the appellant who is prejudiced by it and who seeks to relieve - himself from it by appeal. But under Article 133(i)(b) the matter for determination is whether the judgment sought to be appealed from involves claim or question affecting property of the value of Rs. 20,000/- or upwards. According to the petitioner the claim or question may be of the value which is less than Rs. 20,000/-, but if the property . affected by it is of the value of Rs. 20,000/- or more, the test laid down in Clause (b) is satisfied. Reliance has been placed by the learned Advocate for the petitioner on a decision of the Allahabad High Court reported in (S) : AIR1956All348 , Central Talkies v. Lala Dwarka Prasad. The contention of Mr. Chakraborty, learned Advocate for the opposite parties, on the other hand, is that property in Clause (b) has reference to some additional property other than that which is the subject matter in dispute and since that is not the case here, Clause (b) is not attracted. The learned Advocate has placed reliance on decisions of the Madras High Court reported in AIR 1916 Mad 985, A. V. Subramania Aiyar v. Sellammal, AIR 1918 Mad 632, Appala Raja v. Rangappa Naicker , Udaychand Pannalal v. P. E. Gujdar and Co., : AIR1961Cal537 , Ram Baran Prosad v. Ram Mohit Hazra, and , Ramu v. Vidya Bhushan Singh. The last mentioned case dissents from the view taken by the Allahabad High Court in (S) : AIR1956All348 .
12. Now, it appears to us that in Clause (b) of Article 133 the emphasis is laid on the value of the property. This is the plain grammatical construction of the clause having regard to the proximity of the word 'property' to the words 'of like amount or value'. The Judicial Committee in a case reported in 1954 AC 80, Meghji Lakhamshi and Bros. v. Furniture Workshop in construing the legislative provision in the Eastern African (Appeal to Privy Council) Order in Council, 1951, being Article 3 (a) of that Order, which is substantially similar to paragraph 2 of Section 110 of the Code of Civil Procedure and Article 133(i)(b) of the Constitution, pointed out that the determining factor owing to the presence of the word 'indirectly' wasthe value of the property and not the valuation of the claim or question (see page 88 Per Lord Tucker). It appears from the Allahabad case on which reliance has been placed by the learned Advocate for the petitioner that similar construction, as that put by the Judicial Committee, was placed ou Article 133(i)(b) of the Constitution by the Allahabad High Court though the reasoning is different. It is also clear from the decision of the Allahabad High Court that the learned Judges of the Division Bench were fully alive to the fact that the word 'property' in Article 133(i)(b) has reference to some property other than the property which is the subject matter in dispute. A reference to paragraphs 5 and 6 of the judgment will make the position clear. It was also pointed out by the learned Judges of the Allahabad High Court that the view that they were taking received support from a decision of the Bombay High Court reported in AIR 1923 Born 23, Kasturbhai Mani-bhai Nagarseth v. Hiralal D. Nanavati, AIR 1945 Bom 113 : ILR (1945) Bom 268, Maneklal Man-sukhbhai v. Hormusji Jamshedji Jinwalla, and ILR 44 Cal 119 at 123 : (AIR 1917 Cal 496) Surendra Nath Roy v. Dwarka Nath Chakraborty. In this Calcutta case it was argued that the construction sought to be put on para 2 of Section 110 of the Code of Civil Procedure would render the first paragraph nugatory, but this argument was not accepted. In the case before us it is not disputed that the market value of the property from which the petitioner is sought to be evicted is more than Rs. 20,000/-. The land measures about 14 cottahs and it appears from the decision of the Division Bench at page 17 that the value of the land itself is Rs. 80,000/-. So if the principle of the Allahabad decision which is supported by the decision of the Division Bench of this Court reported in ILR 44 Cal 119 : (AIR 1917 Cal 496) and which we accept is applied to the facts of this case there can be no difficulty in coming to the conclusion that the valuation test as is required by Article 133(i)(b) is satisfied in this case.
13. The next question which arises for consideration is whether there are any substantial questions of law involved in this proposed appeal to the Supreme Court. The question which is sought to be raised by the petitioner is, first, as to the scope of Section 17 (3) of the West Bengal Premises Tenancy Act, 1956, and the scope of Section 105 of the Code of Civil Procedure. The question sought to be raised is that if an order under Section 17 (3) is challenged in revision and is upheld does it become res judicata for all purposes or can it be challenged again in appeal from a decree under Section 105 of the Code of Civil Procedure on the footing that the order made under Section 17 (3) is in the nature of ' an interlocutory order? In other words the point that the petitioner intends to argue is that if a revision petition challenging an order striking out defence fails before the High Court in revision, whether, it is still open to the tenant in an appeal from the ejectment decree to challenge the legality of the order striking out the defence in view of provisions of section 105(1) of the 'Code of Civil Procedure. The learned Advocate for the petitioner has drawn our attention to the decisions of this Court reported in 58 Cal WN 869 at 875. Sudhir Ranjan Roy Choudhury v.Hillol Kumar Gupta, 59 Cal WN 1148, Meher Singh v. Keshardeo Chamaria : AIR1959Cal462 , Idannessa Bibi v. Syed Abdul Wadud and AIR 1960 HC 941 at p. 946, Satya-dhyan Ghosal v. Smt. Deorajin Debi, where the Supreme Court held that an interlocutory order which had not been appealed from, either because no appeal lay or no appeal was taken, can be challenged in an appeal from the final decree, Attention was also drawn to a decision of the Madras High Court reported in : AIR1940Mad755 , Pichu Ayyanger v. Ramanuja Jeer Swamigat. The learned Judges of the Division Bench have held that it is not open to the appellant in the appeal from the ejectment decree to challenge the order made under Section 17 (3) of the West Bengal Act which had been confirmed by B. K. Guha, J., in revision. They have further held that even assuming that it was so open to agitate this question, the Division Bench is satisfied on the materials placed before it that the order under Section 17 (3) had been rightly made by the trial Court. It appears to us, however, that in view of the several decisions to which our attention has been drawn the question whether an order under Section 17 (3) of the West Bengal Act XII of 1956 which has been confirmed in revision can be challenged in an appeal from the final ejectment decree under the provisions of Section 105 of the Code of Civil Procedure is a substantial question which we can pass on to that Supreme Court for its consideration.
14. The next point is sought to be raised by the petitioner is the question of construction of the judgment of Datta, J. Reference has been made by the learned Advocate for the petitioner to a decision of the Privy Council reported in , Raghunath Prasad Singh v. Deputy Commr. of Partabgarh and a decision of the Supreme Court reported in : 1SCR51 Paragraph 10, Nathoo Lal v. Durga Prosad. None of these cases are cases of construction of judgment. They relate to case of construction of will and other documents. Mr. Chakraborty, on the other hand, has referred to a decision of the Privy Council reported in , Secy, of State v. Rameswaram Devasthanam and also to a case reported in : AIR1938Cal724 , Prodyot Cooma Tagore v. Mayuddin Mia and has contended that it is only a question of construction of instruments of title that can be considered as a subs- tantial question and the question of status of a tenant i. e., whether, a particular tenant is a monthly tenant, and if so, on what terms and conditions, is really a question of fact, and cannot be regarded as a question of law, far less a substantial question of law. We are inclined to agree with Mr. Chakraborty that this question of construction of Datta, J.'s judgment cannot be regarded as a substantial question of law which we can pass on to the Supreme Court for its consideration.
15. The other question which the petitioner intends to raise before the Supreme Court is the question whether the structure which exists on the land and which is alleged to have been constructed by the respondent in this case makes thethe construction a 'premises' within the meaning of Section 2 (f) of the West Bengal Act XII of 1956. This question no doubt depends on the facts 01 each case and it depends on the extent and nature of the construction of individual cases. It is also true that no hard and fast rule can be laid down as to whether a particular construction or structure is a 'premises' within the meaning of section 2 (f) or not. But' the facts in this case disclose that the respondent had constructed five rooms up to a lintel height, and he left it there and the petitioner afterwards completed the construction for the purpose of carrying on his timber business and he has been carrying on such business there. It is an admitted fact that when the original letting out took place it was only the vacant land that was let out and Rs. 140/- per month was fixed by way of rent. It is also clear from the materials on record that some of these structures, as erected by the plaintiff, came into existence some time later and it was the petitioner who afterwards completed the structure to make it suitable for the purpose of carrying on his business. Under the circumstances it appears to us to be an arguable question whether the structure standing on the land which bad been built by the respondent in this case and which the defendant subsequently came to occupy for the purpose of his business can make the letting of the respondent one of 'a premises' within the meaning of the said word as used in the West Bengal Act XII of 1956. The City Civil Court has dealt with this question at great length and reference has been made to a number of Calcutta and Madras cases in that judgment. The Division Bench has expressed the view that the construction of five rooms up to a lintel height which had been made by the respondent in this case makes the holding a premises within the meaning of the West Bengal Act XII of 1956 and therefore an application under Section 17 (3) was maintainable and the order that had been made in that proceeding was rightly made. It may be noted that even after the petitioner came to occupy the structures which had been erected by the respondent in this case after completing the same, the rent in respect of the holding was not increased or varied. Having regard to the circumstances stated above it appears to us that this is also a substantial question which we can pass on to the Supreme Court for its consideration.
16. For the reasons given above this application must succeed. Let a certificate under Article 133(i)(b) of the Constitution be drawn up and issued. Costs of this application will be costs in the Supreme Court. Hearing fee is assessed at five gold mohurs.
17. Limited stay for a period of three months is granted subject to further orders of the Supreme Court. The petitioner will continue to pay the sum of Rs. I4O/- per month to the learned Advocate for the respondent as he was doing qp-till now.
Debabrata Mookerjee, J.
18. I agree.