1. This is an application under Article 133(1)(c), Constitution of India, for leave to appeal to the Supreme Court from a decision of a Division Bench of this Court, dated 9-9-1953, and given in the revisional jurisdiction. By that decision, this Court set aside an order of a Munsif, dismissing an application under Section 28, Calcutta Thika Tenancy Act, 1949, and remanded the case to the Court below for disposal of the same in accordance with law. By 'case' must be understood the application made by the 'thika' tenant under Section 28 of the Act.
2. The questions involved in the proposed appeal are undoubtedly questions of great public importance and had it not been for the technical difficulty that the order sought to be appealed from is not a final order, I would not have the slightest hesitation in granting the leave prayed for. This Court, however, has already held that by reason of the form in which Sub-claise (c) of Article 133(1) has been expressed, it is no longer possible for a High Court to grant leave to appeal to the Supreme Court in any case in which the order I sought to be appealed from is not a final order.
3. Mr. Gupta contended that the order in question in the present case ought to be treated as a final order, because after the case went back to the learned Munsif, he would have to perform only the mechanical act of transferring the case to the Controller in order that the necessary further steps might be taken. I am unable to hold that the position is as contended for by Mr. Gupta.
It may be useful to recall here that the original decree for ejectment was passed before the Thika Tenancy Act came into force. After the enactment of the Act, the tenant made an application under Section 28 for a rescission of the decree and the learned Munsif, dealing with the application by reference to the definition of 'thika tenant', as it then stood, held that the tenant was not a thika tenant at all. It was not disputed before this Court that if the law had stood where it was at the time the learned Munsif decided the case, his decision would be entirely right, but certain further amendments of the law have been made which have had the usual effect of obscuring rather than clarifying the position. Twoof the principal amendments, with which we are concerned in the present case may be mentioned. By the amendment made in 1953, Section 28 was removed altogether and a new definition of 'thika tenant' was introduced. The questions debated before this Court appear to nave been two in number, namely, whether the repeal of Section 28 involved the consequence that the tenant's application under that section could no longer be pursued, whether in the original Court or before this Court in the application for revision; and, secondly, whether the tenant could now be held to be a 'thika' tenant under the new definition.
This Court held, for the reasons given by it, that in spite of the amendment, section 28 was to be treated as surviving for the purposes of the tenant's application in the present case and that the tenant came under the new definition of a 'thika tenant'. Mr. Gupta's contention was that in view of those findings of the High Court, all the material questions which could arise under Section 28 had been finally disposed of and, therefore, although formally the order made by this Court was an order for remand, the remand was nothing more than one of a technical character.
4. It appears, however, from a reference to Section 28 of the Act that even when it is found that the section applies and it is also found that the applicant is a 'thika' tenant, certain further questions may have to be 'gone into and disposed of. To give but two illustrations, the Court to which the application is made has first to be of opinion, if it is to rescind or vary the decree, that the decree is not in conformity with any provision of the Act, other than Sub-section (1) of Section 5 or Section 27. The Court has therefore to examine the provisions of the decree by reference to the provisions of the Act and come to a decision as to whether the decree could have been passed if the Act were in force at the date it was pronounced.
In the second place, the Court has to rescind or vary the decree in such manner as the Court may think fit for the purpose of giving effect to those provisions of the Act which it might be found to have violated. That provision of Section 28 again implies and involves that the Court will have to apply its judicial mind and come to a judicial conclusion as regard? the form of the variation and also as regards whether the decree Shall be rescinded or varied at all. It cannot, therefore, be said that when the case goes back to the Munsif under the order of this Court, the Munsif will have no further judicial function to perform, but will have simply to transmit the decree to the Controller, to be dealt with further by that officer. What Section 28 requires the Court to transmit to the Controller is only the decree, as rescinded or varied.
5. It appears from a reference to the petition of objection which Mr. Gupta's clients filed, that they themselves took various other grounds as to why the decree should not be varied or rescinded. Mr. Gupta ultimately agreed that in View of the requirements of Section 28 and the nature of the petition of objection which his clients had filed, it would not be possible for this Court to proceed on the assumption that the Munsif would not have to consider any other matter judicially at all. The case is, therefore, not onewhich came to an end by the operation of the order of this Court, but it is a case which remains alive for the purpose of being further dealt with and finally disposed of.
6. If such be the true position with regard to the application under Section 28, namely, that it has not been finally disposed of yet, it must be held that the order of the High Court, sought to be appealed against, is not a final order. It follows that in view of the limited character of the provision contained in Sub-clause (c) of Article 133(1) of the Constitution no leave to appeal from the order of this Court can be granted.
7. For the reasons given above, this application must fail and is rejected.
8. There will be no order for costs.
9. I agree.