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Sm. Mirabala Dasi Vs. Binapani Dassi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 2982 of 1951
Judge
Reported inAIR1954Cal163,56CWN761
ActsWest Bengal Premises Rent Control (Temporary Provision) Act, 1950 - Sections 16, 32 and 32(6); ;Code of Civil Procedure (CPC) , 1908 - Sections 100 and 115; ;Bengal, Agra and Assam Civil Courts Act, 1887
AppellantSm. Mirabala Dasi; Binapani Dassi
RespondentBinapani Dassi;sm. Mirabala Dasi
Advocates:Sarat Chandra Jana, ;Apurbacharan Mukherji, ;Prabhas Ch. Chatterji and ;Samarendra N. Banerjee, Advs.
Excerpt:
- order1. this rule was obtained by a tenant defendant against the order passed in appeal by the chief judge of the small cause court and another judge of the small cause court, mr. s. c. biswas. they passed that order in appeal against the decision of the judge mr. p. m. lahiri, another judge of the small cause court in an ejectment suit,...... under the west bengal premises rentcontrol act. 2. a preliminary point has been taken that as a second appeal lies against the decree that was passed in appeal the court cannot interfere under section 115 of the code of civil procedure with the order that has been passed. 3. in our judgment this objection should succeed. the west bengal premises rent control act has made special provision as regards the hearing of these ejectment suits and as.....
Judgment:
ORDER

1. This Rule was obtained by a tenant defendant against the order passed in appeal by the Chief Judge of the Small Cause Court and another Judge of the Small Cause Court, Mr. S. C. Biswas. They passed that order in appeal against the decision of the Judge Mr. P. M. Lahiri, another Judge of the Small Cause Court in an ejectment suit,...... under the West Bengal Premises RentControl Act.

2. A preliminary point has been taken that as a second appeal lies against the decree that was passed in appeal the Court cannot interfere under Section 115 of the Code of Civil Procedure with the order that has been passed.

3. In our judgment this objection should succeed. The West Bengal Premises Rent Control Act has made special provision as regards the hearing of these ejectment suits and as regards appeals from decrees passed in those suits. Section 16 of the Act provides as follows:

'Notwithstanding anything contained in any other law a suit by a landlord against a tenant in which recovery of possession of any premises to which this Act applies is claimed shall lie to the Courts as set out in Schedule B and no other Court shall be competent to entertain or try such suit.'

It was in consequence of this provision read with the provision of Schedule B that the suit in the present case was instituted in the Court of the Chief Judge of the Calcutta Court of Small Causes. Under the proviso to Clause (ii) of the schedule the Chief Judge is entitled to transfer the suit to another Judge. The schedule also lays down that on such transfer the Small Cause Court Judge shall try it 'as a Court of the Subordinate Judge under the Bengal, Agra and Assam Civil Courts Act, 1887.' The decree that was passed in this case by Mr. P. M. Lahiri was, therefore, in law a decree passed by a Subordinate Judge under the Bengal, Agra and Assam Civil Courts Act, 1887. In this case, an appeal would have lain in accordance with the provisions contained in that Act. There are however special provisions as regards appeals from these decisions in suits as provided in Section 32(6)(i) and (ii). We are concerned here with Clause (ii) of Section 32 (6) which is in these terms:

'When the value of the suit heard by such Judges does not exceed rupees five thousand the appeal shall be to a Bench consisting of the Chief Judge and another Judge of the Calcutta Court of Small Causes other than the Judge from whose decree the appeal has been preferred as selected by the Chief Judge, and in case they differ in opinion the appeal shall be heard by a third Judge of the same Court selected by the Chief Judge, other than the Judge from whose decree the appeal has been preferred, and the appeal shall be decided in accordance with the opinion of the majority of the Judges who heard the appeal and in case there is no such majority the decision shall be in accordance with the opinion of the Chief Judge. The Chief Judge and the other Judge or Judges hearing the appeal shall do so in capacity respectively of judicial officer as prescribed in Schedule B.'

4. In our judgment, the consequence of the provision of Schedule B indicated above is that the Civil Procedure Code is fully applicable to the trial of these suits and to appeals from the decrees made therein. In that view, there can be no escape from the conclusion that under Section 100 of the Code of Civil Procedure a second appeal lies to the High Court. We therpfore hold that an appeal lay from the decree passed by the Chief Judgeand Mr. S. C. Biswas and that no application in revision is maintainable.

5. The result is that we allow the preliminary objection and discharge the Rule. In the peculiarcircumstances of the case there will be no order as to costs.

6. Liberty is given to the petitioner to take back the application on which this Rule was issued as also the certified copies of the judgments filed along with the application on filing plain copies thereof and to take such steps as he may be advised to convert it into a memorandum of second appeal.


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