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Sm. Biva Banerjee and anr. Vs. Manmatha Nath Banerjee - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberLetters Patent Appeal No. 218 of 1974
Judge
Reported inAIR1977Cal82
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rules 4 and 33 - Order 42, Rule 1 - Sections 96, 100 and 101
AppellantSm. Biva Banerjee and anr.
RespondentManmatha Nath Banerjee
Appellant AdvocateB.K. Bhose, ;Dilip Kumar Banerjee, Advs. (No. 2) and ;P.C. Matilal, Adv.
Respondent AdvocateTarak Nath Roy and ;Sankarlal Seal, Advs.
DispositionAppeal dismissed
Cases ReferredSabitri Thakurain v. Savi
Excerpt:
- a.k. janah, j.1. this appeal is on behalf of the tenants-defendants and it arises out of a suit for ejectment instituted by the landlord-respondent on the ground of reasonable requirement for his own use and occupation and also for the use and occupation of the members of his family. the suit premises consists of the north and western portion of premises no. 198. upper circular road. originally the defendants' father bipin krishan banerjee was a tenant in respect of the disputed premises under the predecessor-in-interest of the plaintiff. the plaintiff purchased premises no. 198, upper circular road by a registered sale deed dated december 14, 1949 and became the owner of the said premises. the father of the defendant held the disputed premises at a monthly rent of rs. 57.50 payable.....
Judgment:

A.K. Janah, J.

1. This appeal is on behalf of the tenants-defendants and it arises out of a suit for ejectment instituted by the landlord-respondent on the ground of reasonable requirement for his own use and occupation and also for the use and occupation of the members of his family. The suit premises consists of the north and western portion of premises No. 198. Upper Circular Road. Originally the defendants' father Bipin Krishan Banerjee was a tenant in respect of the disputed premises under the predecessor-in-interest of the plaintiff. The plaintiff purchased premises No. 198, Upper Circular Road by a registered sale deed dated December 14, 1949 and became the owner of the said premises. The father of the defendant held the disputed premises at a monthly rent of Rs. 57.50 payable according to English Calendar month.

2. The plaintiff's case is that he purchased the disputed premises for his own use and occupation and for the use and occupation of the members of his family. It is alleged in the plaint that the plaintiff has a joint family dwelling house at 195, Upper Circular Road which is just in front of the disputed premises. It is stated that the plaintiff has six brothers and each brother has a large family. The total number of rooms in the said joint family dwelling house is not sufficient to accommodate the families of the plaintiff and his brothers, it is alleged that for want of accommodation the plaintiff is compelled to live in the house of his wife's brother at 271, Kalighat Road. His possession in the said house is merely permissive. The plaintiff has two sons, one of whom is married and the other is of marriageable age. The plaintiff's son's wife is compelled to live at her father's house since her marriage on account of want of accommodation. The family of the plaintiff consists of himself, his wife, two sons, wife of the eldest son and one unmarried deformed daughter and one married daughter. The defence of the defendants is a denial of the plaintiff's reasonable requirement for his own use and occupation and for the use and occupation for the members of his family. The defendants allege that the plaintiff is the owner of premises Nos. 8A and 8C, Rashbehari Avenue which stand in the names of his sons.

3. The learned Judge in the trial court upon a consideration of the evidence adduced in the case decreed the suit in favour of the plaintiff. Against the said decision the defendants preferred an appeal, being F. A. No. 665 of 1972, to this Court. The appeal came up for hearing before Chittatosh Mookerjee, J. who affirmed the finding of the trial court with regard to plaintiff's reasonable requirement of the disputed premises for the plaintiff's own use and occupation and for the use and occupation of the members of his family, but remanded the suit to the trial court for a consideration of the question as to whether the plaintiff is the owner of the premises in question. His Lordship directed that in case the answer is in the affirmative, the trial court will grant a decree for eviction. On the other hand if the answer be in the negative the plaintiff's suit shall be dismissed. Against this decision of Chittatosh Mookherjee, J., the defendants have filed this Letters Patent Appeal.

4. Mr. Bhose, learned Advocate appearing in support of the appeal has argued in the first place, that the requirement of Clause (ff) of Sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the 'Act') was not satisfied in the present case and as such the finding of the appellate court that the plaintiff reasonably requires the suit premises for his own use and occupation cannot be sustained. Mr. Bhose drew our attention to the statements made in paragraph 11 of the plaint to the effect that the plaintiff has no other house of his own in Calcutta, and contended that this averment is not sufficient for the purpose of Clause (ff) of Sub-section (1) of Section 13 of the Act. inasmuch as, the said clause contemplates 'any reasonably suitable accommodation'. According to Mr. Bhose what the plaintiff is required to allege and to prove is that he has no other reasonably suitable accommodation. Such accommodation need not necessarily be in a house exclusively owned by the plaintiff. Mr. Bhose wanted to contend that since the plaintiff, according to his own case, had been living in his brother-in-law's house at Kalighat Road and since his son's wife was living in her father's house since her marriage, such accommodation was reasonably suitable accommodation within the meaning of Clause (ff) of Sub-section (1) of Section 13 of the Act. We are unable to accept this contention of Mr. Bhose. In our view the averment made in paragraph 11 of the plaint is quite sufficient for the purpose of Clause (ff). Moreover, in view of the concurrent finding of fact arrived at by the two courts below we do not think that we would be justified in this appeal to go into the question as to whether the plaintiff was in possession of any other reasonably suitable accommodation.

5. The next contention advanced on behalf of the appellants is that on the application filed on behalf of the defendants on 7th December, 1970 an additional issue, being issue No. 7, was framed on the 8th December, 1970. The said additional issue is as follows:

'Additional Issue No. 7:

Docs the plaintiff reasonably require the premises for the use and occupation of his two sons and wife of one of the sons?'

It was pointed out that in the judgment of the trial court the issues which have been set out do not contain the aforesaid additional issue No. 7. It was argued that this omission on the part of the learned Judge in the trial court has resulted in one of the important aspects of the case being left out of consideration altogether. From the judgment of the trial court it appears, however, that although this issue was not specifically mentioned, the learned Judge considered the question of accommodation of the plaintiff and the members of his family or his two sons for the matter of that, at premises No. 8/A and 8/C, Rashbehari Avenue. The learned Judge has considered the evidence adduced in the suit in so far as the accommodation in the said premises is concerned, and has come to the conclusion that in so far as premises No. 8/C, Rashbehari Avenue is concerned there is no evidence as to who is the owner of the same. In so far as premises No. 8/A, Rashbehari Avenue is concerned the finding is that the said house does not belong to the plaintiff but it belongs to his son. These findings of the trial court have been affirmed by the first appellate court and we find no reason not to accept the said findings. If the plaintiff's son owns a house of his own that will not disentitle the plaintiff from claiming a decree for eviction on the ground of reasonable requirement for himself and the members of his family, including such a son. It was also argued on behalf of the appellants that the requirement of the two sons of the plaintiff and the wife of one of the sons is not the plaintiff's requirement in the present case in view of the fact that the sons have a separate house of their own and they are not going to come back and live with the plaintiff as members of his family. There is no evidence in the case that the sons are not coming to live with the father in the father's house. It cannot, therefore, be held merely on the basis of this suggestion made from the Bar that the son's requirement in the present case will not amount to the plaintiff's requirement.

6. Mr. Bhose made a grievance that Mookerjee, J, was not right in his view that because the defendants did not follow up their prayer for appointment of a Commissioner for local inspection to ascertain the accommodation available at premises No. 8/A, Rashbehari Avenue it was no longer open to them to agitate that point in the appeal before his Lordship. He contended that the trial court wrongly rejected his client's prayer for local investigation by order dated September 17, 1970. From the judgment of Mookerjee, J. it appears that in the course of the hearing of the appeal his Lordship was prepared to give the defendant another opportunity of having a local inspection of premises No. 8/A, Reshbehari Avenue but the learned Advocate for the defendants-appellants did not press his prayer for local inspection of the said premises. In these circumstances his Lordship was of the view that it was not open to the defendant to make any grievance that the trial court wrongly refused the defendants' prayer for local investigation. It also appears from the order passed by the trial court on September 17, 1970 that on the defendants' prayer a Commissioner was appointed for local inspection and the Commissioner had proceeded with his work to some extent, but ultimately the defendants themselves applied before the trial court for withdrawal of their application for local inspection. The writ issued to the Commissioner was accordingly recalled by the trial court. After the writ was recalled the defendants filed a fresh application for appointment of a Commissioner for local investigation. This prayer was rejected by the trial court. Mookerji, J. took into consideration this fact and came to the conclusion that in the circumstances the application for local investigation was rightly rejected by the trial court. We do not see how any exception can be taken to the view which Mookerjee J. took on this aspect of the case. Mr. Bhose drew our attention to the trial court's order dated April 16, 1970 and contended that the prayer made by his clients was wrongly rejected by the trial court and Mookerjee J. did not consider this aspect of the matter. The prayers made by the defendants before the trial court were as follows:

1. That the plaintiff may be directed to arrange for the production of the original map of premises No. 8/A, Rashbehari Avenue which does not belong to the plaintiff; and

2. That the plaintiff may be directed to cause the presence of all tenants and occupiers of the aforesaid premises with their respective rent receipts and ration cards at the time of local inspection. This prayer was rejected by the trial court on the ground that the premises No. 8/A, Rashbehari Avenue admittedly does not belong to the plaintiff and that the tenants of the said premises who were not parties to the suit could not be compelled to produce rent receipts and ration cards. In our view this extraordinary prayer made 'by the defendants was rightly rejected by the trial court.

7. The next point canvassed on behalf of the appellants is that the predecessor-in-interest of the defendants was originally a tenant in the disputed premises under the plaintiff's vendor, it was contended that after the disputed house was purchased by the plaintiff a new tenancy came into existence and that tenancy is not in accordance with the English Calendar. In support of this proposition reliance was placed on behalf of the appellants upon the case of Bimalendu Bhusan Das v. Firm Mitra and Ghosh, : AIR1973Cal515 . in our view the appellants cannot be permitted to raise this point at this stage. In the written statement no such averment was made. No issue was framed in the trial court regarding the commencement of the tenancy. It is true that the appellants tried to raise this point in the appeal before Chittatosh Mookerjee J. But his Lordship rightly held that the appellants in the circumstances of the present case could not be permitted to raise this point as the question as to the commencement of the tenancy is not a pure question of law. In order to determine such a point facts must be gone into, and there must be evidence on record upon which the court has to come to its conclusion. In the present case as there was no avernment in the written statement and as there was no issue framed on this question the trial court had no occasion to consider the point which was sought to be raised in the appeal. The decision in Bimalendu Bhusan's case (supra) is distinguishable on facts. There it was found that by a mutual agreement dated 20th September 1965 there was a privity of contract between the parties establishing a new tenancy running from the 20th day of the English Calendar month. On that finding Amaresh Roy J. held that the ejectment notice was invalid and it did not terminate the tenancy. In the present case it was nowhere pleaded by the defendants that there was any fresh agreement between the plaintiff and the defendants' predecessor altering the date of commencement of the tenancy. If there was no fresh contract between the parties creating a fresh tenancy, then the old tenancy under the plaintiff's vendor would continue and the notice served in the present case would be quite sufficient and valid.

8. Lastly, it was urged on behalf of the appellants that the ejectment notice dated 19th December, 1966 served by the plaintiff-landlord upon the defendants terminating their tenancy on the expiry of the last day of January, 1967 is invalid inasmuch as there was an earlier ejectment notice dated 16th February, 1957 which was served by the plaintiff-landlord. In the present case the plaintiff landlord previously issued a notice dated 16th February, 1957 purporting to determine the tenancy of the predecessor-in-interest of the defendants. Upon the service of that notice the plaintiff brought the suit No. 1123 of 1957 in the City Civil Court for eviction of the ten-ant on the ground of reasonable requirement. The suit was decreed by the trial court. Bipin Krishna, the predecessor-in-interest of the defendants in the present case preferred an appeal against the said decree but it was dismissed by the learned Chief Judge, Small Cause Court. Calcutta. There was a second appeal to this Court during the pendency of which the original tenant died and the present appellants were substituted in his place. This Court held that the appeal preferred before the Court of Small Causes was not maintainable. Thereafter the memorandum of appeal was taken back from the lower appellate court and it was re-filed in this Court and it was registered as F. A. 61 of 1966. The Division Bench hearing that appeal was of the opinion that the notice dated 16th February, 1957 was not in compliance with the requirement of Section 13 (6) of the West Bengal Premises Tenancy Act. Their Lordships without expressing any opinion on the other points involved in the appeal allowed the appeal on the said ground alone and dismissed the suit. The plaintiff thereafter issued a fresh notice dated 19th December, 1966 and on the basis of that notice had brought the present suit out of which this appeal arises. The contention advanced on behalf of the appellants that the present notice is invalid cannot be accepted for the simple reason that after this Court had dismissed the earlier suit the tenancy of the defendants continued and therefore the plaintiff could not institute a suit for eviction without determining the tenancy. The earlier notice dated 16th February, 1957 became ineffective by reason of the decision of this Court in F. A. 61 of 1966. No fresh suit could have been filed on the basis of that notice. Moreover, that notice was found to be defective and, therefore, no suit for eviction could be filed on the basis of that notice. Learned Advocate for the appellants relied upon the case of Tayebali Jefarbhai Tankiwala v. Ahsan and Co., : [1970]2SCR554 in support of his contention. In that case the landlord gave a first notice to quit on the ground of arrears of rent. The tenant did not vacate in spite of that notice. Thereafter a second notice was served after about a year demanding rent for the period between the first notice and the second notice. In a suit for ejectment the landlord claimed damages for use and occupation for the period subsequent to the second notice which showed that the landlord had made a distinction between the rent and damages for use and occupation. It was held that the first notice was waived and the landlord had treated the tenancy as subsisting. In our view, this decision is of little assistance to the appellants in the present case.

9. During the course of hearing of the appeal, a question arose as to whether in the event of the appeal being ultimately dismissed and the order of remand passed by Mookerji, J. being set aside a decree for partial eviction could be passed in favour of the landlord. Mr. Bhose, learned Advocate for the appellants stated before us that in such an event his clients were prepared to have a decree of partial eviction being passed against them. By consent of both parties we, therefore, by our order dated 5th August, 1976 appointed a learned Advocate of this Court to hold a local inspection of the disputed premises to ascertain certain points as mentioned in the said order, with a view to decide whether a decree for partial eviction could be passed in the present case. The learned Advocate Commissioner submitted his report dated 10th August, 1976 together with a sketch map. The said report and the map were accepted by both parties and the learned Advocates for the appellants as well as the respondent referred to the same in support of their respective contentions. It appears from the said report and the map that although there are a number of rooms in the ground floor besides the rooms on the second floor, most of the rooms in the ground floor are in a dilapidated and dangerous condition and those are not fit for human habitation. After having carefully considered the said report and the map and the contentions of the respective parties we have come to the conclusion that it is not possible in the present case to pass a decree for partial eviction.

10. The only point which remains for our consideration in this appeal is whether the order of remand made by Chittatosh Mookerjee, J. should be allowed to stand or whether we would dispose of the entire suit ourselves in this appeal. Chittatosh Mookerjee, J. affirmed the finding of the trial court with regard to the reasonable requirement of the plaintiff but his Lordship has remanded the suit to the trial court with a direction to decide whether the plaintiff was the owner of the disputed premises. At the hearing of the appeal before his Lordship learned Advocate for the appellants raised a contention that the plaintiff in his evidence before the trial court stated that the premises No. 99/2, Hazra Road which belonged to his wife was sold, and with the sale proceeds the plaintiff purchased the disputed premises. It was contended on behalf of the defendants-appellants that the plaintiff did not adduce any evidence whether the sale proceeds of 99/2 Hazra Road had been gifted to him by his wife Mookerjee J. took the view that the trial court was not right in coming to the conclusion that the plaintiff was the owner of the suit premises, and he therefore, remanded the suit to the trial court on that point alone.

11. In paragraph 1 of the plaint the plaintiff stated that the plaintiff became the owner of the disputed premises by purchase on December 14, 1949. To this averment made in paragraph 1 of the plaint the averment in paragraph 2 of the written statement is that the plaintiff is not the sole owner of the disputed premises. The defendants do not mention who else are the owners of the disputed premises along with the plaintiff. There is no dispute that the registered sale deed dated, 14th December, 1949 stands in the name of the plaintiff. The contention that the plaintiff is not the owner of the property has been raised on the basis of a statement made by the plaintiff in his evidence to the effect that the house at 99/2, Hazra Road belonged to his wife and that house was sold in 1944. With the sale proceeds of that house the plaintiff purchased the disputed premises. In the absence of any pleading the defendants cannot be permitted to set up a new case. In our view, the trial court was right in pointing out that the defendants cannot be permitted to say that the plaintiff is merely a benamdar for his wife in the absence of any pleading to that effect. What the defendants are now trying to say is that although the disputed premises stand in the name of the plaintiff the real purchaser is his wife and the plaintiff is merely a benamdar. The defendants cannot be permitted to make out such a case by utilising the statement made by the plaintiff in his evidence when there is no such pleading in the written statement and when there is no specific issue to the effect that the plaintiff is a benamdar of his wife. On the ether hand, upon the defendants' pleading as contained in paragraph 2 of the written statement the issue was raised as to whether the plaintiff is the sole owner of the disputed premises and is the plaintiff alone entitled to sue. Amongst _ the other issues the parties went to trial on this issue. So far as this issue is concerned there is no material on record to hold that there are any other owners of the disputed premises who ought to have been joined as plaintiffs in the suit. That being the position we do not think that an order of remand on a point as has been made in the present case was called for. We, therefore, in exercise of the power conferred upon an appellate court by Order 41, Rule 33 of the Code of Civil Procedure set aside the order of remand passed by Mookerjee, J. and decree the suit in favour of the plaintiff. We are supported in this view by a decision of the Supreme Court in Pannalal v. The State of Bombay, : [1964]1SCR980 .

12. For the reasons mentioned above this appeal is dismissed. The order of remand passed by the first appellate court is set aside and the decree of the trial court is restored. In the circumstances of the case we make no order as to costs in this appeal.

13. In view of the fact that the defendants have been residing in the disputed premises for a long time we allow them time, at first instance, upto the 15th November, 1976. If within that period they file a written undertaking to this Court to vacate the disputed premises and deliver up vacant and peaceful possession to the plaintiff the time will be extended till the 31st March, 1977 provided however they go on depositing the current damages or mesne profits at an amount equivalent to the rate of rent month by month within the 15th of next succeeding month in the trial court. In default, of such deposit or deposits being made the decree will become executable forthwith. If the deposits are made as aforesaid the plaintiff would be entitled to withdraw the same without security.

14. In view of the order which we have made it is not necessary for us to pass any separate order on the application under Order 41, Rule 27 filed on behalf of the respondent. The said application stands disposed of.

R. Bhattacharya, J.

15. I agree but I add to what my learned brother has said on the question whether we can interfere with and set aside the limited order for remand passed in the first appeal by Chittatosh Mookerjee, J. for the decision by the trial court whether or not the plaintiff was the owner of the suit premises No. 198, Upper Circular Road.

16. It is needless to state the cases of the parties elaborately as they have been dealt with by my learned brother. The plaintiff as landlord has brought the action in ejectment against his tenants on the allegation that he purchased the premises for the purpose of the use and occupation of himself and the members of his family. He now reasonably requires the premises for such use and occupation and the suit has been started. The defence case is the denial of the reasonable requirement. The ground for eviction has been accepted by 'both the trial and the appellate courts. The first appellate court, however, sent back the case to the trial court to decide the question whether the plaintiff was the real owner of the suit premises or whether the money with which the property was purchased was made a gift of in favour of the plaintiff by his wife. A question has arisen on the contention of Mr. Bhose whether the plaintiff respondent can object to the order of remand without filing any appeal against the same. There is the provision in Order 41, Rule 33 of the Code of Civil Procedure read with Rule 4. The Rule 33 should be liberally construed to give effect in practice to secure ends of justice and also for doing complete justice between the parties after proper adjudication of the disputes raised. This wide and special power under Rule 33 of Order 41 should be used sparingly and with great caution by the appellate Court under special circumstances only when the Court's conscience will not be at rest unless it gives relief under Rule 33. The Court should see that by the relief granted under this provision, no party gets an unreasonable and undue advantage to make up his deficiency in the litigation.

17. In the instant case we find that the plaintiff asserts in paragraphs 1 and 2 of his plaint that he became the owner of the suit premises by purchase on the basis of a sale deed and that he had 'purchased the premises for the purpose of his and family members' own use and occupation'. Against this statement, the defendants say in paragraph 2 of their written statement. 'The defendants do not admit that the plaintiff is sole owner of the house..... and the suit as framed is not maintainable in law and also bad for non-joinder of parties'. It is to be particularly noted that the defendants simply denied at best that the plaintiff was the sole owner of the house. They do not assert that the house belonged to several other co-sharers or that the house did not belong to the plaintiff or that the plaintiff purchased the house with money belonging to others. The trial court struck the following relevant issue on the pleadings of the parties.

1. Is the plaintiff the sole owner of premises No. 198, Upper Circular Road, now Prafulla Chandra Road, Calcutta, and is the plaintiff alone entitled to sue?

18. The plaintiff himself gave evidence and he stated that he had purchased the disputed premises by a conveyance dated 14-12-49. One of the defendants Biva Banerji was examined on commission. During the examination-in-chief the question put to her by her own Advocate, was 'How long the tenants continued their occupation after the plaintiff became the owner?' and the answer was, 'For about 5/6 years'. The question itself suggested that the plaintiff was the sole owner. There is no indication or suggestion that the plaintiff was not the owner or that there were other co-sharer owners. The following question and answer in course of the examination-in-chief of Biva Banerji should be particularly noted;

Q. Regarding your assumption that the plaintiff does not require the premises for his own use and occupation, have you got anything further to state about it?

Ans. Manmatha Babu has purchased this premises at a very low price. He wants to evict us and sell the property at a higher price.

In view of the evidence of the defendant herself it is clear that the defendants admitted at the time of trial the plaintiffs-case that he was the owner of the house 'by virtue of the purchase. There is no evidence on the side of the defendants that the plaintiff is not the sole owner or that there were other co-owners of the plaintiff in respect of the suit house. Besides the evidence as mentioned above, there is the deed of sale in favour of the plaintiff brought in evidence. In the circumstances the only irresistible and reasonable conclusion would be, as the trial court drew, that the plaintiff is the owner of the suit premises. Chittatosh Mookerjee, J., however, held that the plaintiff should prove that he was the owner of the house before he could get a decree for eviction. In this respect about onus, there is no dispute. Mookerjee, J., however, found that the evidence regarding ownership is inconclusive. His Lordship has felt this as during cross-examination the plaintiff stated that there was a house on Hazra Road belonging to his wife and the said house was sold away. It is also stated that with the money obtained by the sale of that house, the plaintiff had purchased the suit premises. There was no further question put to the plaintiff from the side of the defendant challenging the sole ownership of the plaintiff or suggesting that there were other co-sharers with the plaintiff relating to the suit premises. At the time of argument it was contended by the learned Advocate for the defendants that the plaintiff was the benamdar of his wife as he had purchased the premises with money coming out of sale proceeds of the plaintiff's wife's house. This new case set up at the time of argument contradicts the case of joint ownership of the plaintiff and nonjoinder of other necessary parties. This new case was set up at the time of argument on speculation getting the evidence of the plaintiff that he purchased the suit premises with the money he got out of the sale proceeds of his wife's house. There was no suggestion to the plaintiff even that he was the benamdar on behalf of his wife or that the real owner was his wife. Had there been any such case pleaded or even suggested to the plaintiff during cross-examination. the plaintiff could have stated how he became the owner of the said money. In view of the pleadings of the parties and the clinching and unambiguous evidence on record, particularly the admission of the defendant, Biva Banerji regarding the sole ownership of the plaintiff, there was no scope for remanding the case to ascertain whether the suit premises was purchased with the money 'belonging to the plaintiff's wife. This question of benami is foreign to the pleading of the defendants and without any evidence on the defendants side ought not to have been considered or allowed to be canvassed either by the trial court or by the appellate court. This order for remand passed by the first appellate court below was against the provision of law and has caused failure of justice. To remedy the injustice done to the plaintiff the order for remand and the connected findings of the first appellate court on issue No. 1 relating to the ownership of the suit premises are liable to be set aside in the exceptional circumstances of this case.

19. The next point that arises is whether the provision as contained in Rule 33 of Order 41 of the Civil Procedure Code is applicable in a Letters Patent Appeal. Order 41 of the C. P. Code relates to appeals from Original Decree. Order 42, Rule 1 says that rules of Order 41 shall apply, so far as may be, to appeals from appellate decrees. According to Clause 15 of the Letters Patent for the Calcutta High Court, an appeal lies from the judgment of the appellate court as indicated therein. In the present case the first appeal was finally decided by a judgment in favour of the plaintiff-respondent on all points except one which was to be reconsidered by the trial court on remand on taking further evidence to the prejudice of the plaintiff's case. 'Decree' is but a formal expression of the adjudication in the judgment. Decree is, therefore, not distinct from the judgment of the court in an appeal. Judgment of an appeal means a judgment and/or a decree based thereon. Judgment for the purpose of Clause 15 of the Letters Patent includes a decree. The present Letters Patent appeal is against the decision in a first appeal and as such the provisions of Order 41 including Rule 33 shall be applicable in this appeal by virtue of Order 42, Rule 1.

20. In this connection I may refer to the decision of the Privy Council in the case of Sabitri Thakurain v. Savi reported in (1921) 25 Cal WN 557 = (AIR 1921 PC 80). This was an appeal before the Board against the decision passed in a Letters Patent Appeal of this Court, A contention was raised whether the Orders and Rules made under the Code of Civil Procedure, 1908 had any application to appeals brought under the Letters Patent of 1865 and whether in particular Order 41, Rule 10 applied to such appeals. The decision in that case is as follows:--

'The Orders and Rules made under the Code are, by Section 121, given the same effect as if they had been enacted in the Code, and therefore Order 41. Rule 10, is one of the provisions of the Code. It applies to appeals in the High Court, including the present appeal, unless any particular section of the Act can be found to exclude it.'

Considering several provisions of law their Lordships of the Privy Council further held:

'Thus regulations duly made by Orders and Rules under the Code of Civil Procedure. 1908, are applicable to the jurisdiction exercisable under the Letters Patent, except that they do not restrict the express Letters Patent Appeal.' It is clear, therefore, that the Court in Letters Patent Appeal may apply Order 41, Rule 33 of the Code to suitable cases.

21. It should be noted that the Code of Civil Procedure, 1908 is an Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature and the Court is to follow the prescribed procedure in Letters Patent Appeals. Even if it is assumed that Order 41, Rule 33 is not strictly applied, in the absence of any bar in law to the contrary, the Court can for just and proper decision act on the principles laid down in Order 41, Rule 33 under the inherent power and jurisdiction under Section 151 of the Code of Civil Procedure.

22. In the case before us, we have no doubt that Order 41, Rule 33 of the Cede will apply and under that provision we modify the judgment and the decree parsed in the first appeal as indicated already by my learned brother.


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