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Provash Chandra Roy Vs. Rabindra Nath Mondal Having Died, Sunil Kumar Mondal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 843 of 1950
Judge
Reported inAIR1951Cal393
ActsCalcutta Thika Tenancy Act, 1949 - Section 28; ;Tenancy Law
AppellantProvash Chandra Roy
RespondentRabindra Nath Mondal Having Died, Sunil Kumar Mondal and ors.
Appellant AdvocateNalini Ranjan Bhattacharjee, Adv.
Respondent AdvocateSarat Chandra Jana, Adv.
Excerpt:
- .....keeping the case in his own file and allowing the landlord an opportunity to make good the defect, in the present case non-compliance with section 8 of the act, transferred the case to the rent controller. we have not been able to see under which provisions of the act this was done. it is only when a decree is varied that the altered decree can be sent to the rent controller. the section itself clearly mentions two kinds of cases namely those in which the decree is rescinded or those in which the decree is varied. it is only in the class of cases in which the decree is varied that the power of transfer is given. there is no such power given in section 28 of the act when the decree is rescinded. it is clear, therefore, that the munsif's order transferring the decree to the eent.....
Judgment:
ORDER

K.C. Chunder, J.

1. This rule was issued at the instance of a ticca tenant. The landlord filed a suit for ejectment of the petitioner as a tenant-at-will after service of notice to quit. The suit resulted in a decree for ejectment and an appeal was unsuccessful. The Ticca Tenancy Act having come into the Statute book in the meantime the tenant applied to the Munsif for rescinding the decree passed under Section 28, Ticca Tenancy Act. Whether the Munsif rightly rescinded the decree or not is not in question before us because the landlord never applied against the order rescinding the decree. The Munsif after rescinding the decree instead of following the provisions of Section 28 of the aforesaid Act, namely, keeping the case in his own file and allowing the landlord an opportunity to make good the defect, in the present case non-compliance with Section 8 of the Act, transferred the case to the Rent Controller. We have not been able to see under which provisions of the Act this was done. It is only when a decree is varied that the altered decree can be sent to the Rent Controller. The section itself clearly mentions two kinds of cases namely those in which the decree is rescinded or those in which the decree is varied. It is only in the class of cases in which the decree is varied that the power of transfer is given. There is no such power given in Section 28 of the Act when the decree is rescinded. It is clear, therefore, that the Munsif's order transferring the decree to the Eent Controller was not in accordance with law. The order is, therefore, set aside. The suit now remains in the files of the Munsif for the landlord plaintiff to take such further steps as may be done under the law.

2. The rule is accordingly made absolute. Each party will pay his own costs in this Rule.


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