1. This is a revisional application under the provisions of Article 227, Constitutionof India, from an order of the District Judge of the 24 Parganas dismissing summarily an appeal under Section 27(1), Calcutta Thika Tenancy Article 1949, from an order of the Controller, Sealdah.
la. The petitioner landlord instituted Title Suit No. 816 of 1948 in the first court of the Munsif of Sealdah for ejectment of the tenant opposite party from a parcel of bastu land measuring 4 cottas held at the monthly rent of Rs. 12/-. The hearing of the suit was stayed when the Thika Tenancy Ordinance came into force on 26-10-48. After the Thika Tenancy Act, 1949, had been passed the suit was transferred to the file of the Controller on 4-4-50 under the provisions of Section 29 of the Calcutta Thika Tenancy Act of 1949.
On 15-9-50 the petitioner filed an application before the Controller for re-transferring the suit to the file of the Munsif on the ground that the, tenancy was not a thika tenancy within the meaning of the Calcutta Thika Tenancy Act, 1949, in accordance with, various rulings of the Calcutta High Court on the point. The Controller rejected such application on 28-4-51 finding that the tenancy was a Thika Tenancy within the meaning of the Act and therefore the Controller had jurisdiction. This order was passed on 28-4-51.
From that order, the landlord petitioner filed an appeal under the provisions of Section 27 (1) of the Thika Tenancy Act to the District Judge. The learned District Judge of 24 Parganas dismissed the appeal summarily on 18-6-51 holding that though Section 27(1) provides an appeal to the District Judge from an order of the Controller, the words 'an order of the Controller' must mean, a final order, because if any other meaning was given to the words, an appeal would lie even from an order refusing an adjournment which would be absurd.
2. In this revisional application, it is urged that the District Judge, acted illegally and with material irregularity in dismissing the appeal summarily. It is also urged that the order of the Controller was bad in law in view of the decisions of the Calcutta High Court. It should be noted however that the revisional application is mainly directed against the order of the learned District Judge dismissing an appeal summarily. The point for decision is whether the learned District Judge was wrong in holding that an appeal lay only from a final order of the Controller.
3. Section 27(1) of the Calcutta Thika. Tenancy Act, 1949, provides that any person aggrieved by an order of the Controller may within 30 days from the date of the order present an appeal in writing, in respect of any holding in the Presidency Town of Calcutta' to the Chief Judge of the Court of Small Causes, Calcutta and in respect of any holding elsewhere, to the District Judge of the district in which the holding concerning which such order is made is situated. There is nothing in this section to show that an appeal lies only from a final order. The learned Advocate for the opposite party has argued on the analogy of an appeal u/s. 299 of the Succession Act, 1925, that an appeal lies only from an order of the Controller made in exercise of the powers conferred upon him by the Thika Tenancy Act and not from any interlocutory order or order passed in the exercise of inherent jurisdiction. I do not however think that the analogy of Section 299, Succession Act, applies, be c use in Section 299, Succession Act, it is providedthat every order made by a District Judge 'by virtue of the powers hereby conferred upon him' shall be subject to appeal in accordance with the provisions of Civil P. C. applicable to appeals. In other words, Section 299 itself provides that an appeal lies from an order of the District Judge passed under the powers conferred upon him by the Succession Act.
In Section 27(1), Calcutta Thika Tenancy Act, 1949, the words 'order of the Controller' are not so limited as to indicate that only an order of the Controller made under the provisions of the Thika Tenancy Act would be subject to an appeal. There is no doubt the difficulty pointed out by the learned District Judge that it an appeal lies from, every order, an appeal would lie even from an order refusing an adjournment and this would lead to an absurd position. But this difficulty can be remedied only by amendment of the words of Section 27(1). Further in the present case the order of the Controller cannot be regarded as a mere interlocutory order. The order related to a question affecting his jurisdiction, because if the tenancy is not in reality a thika tenancy within the meaning of the Thika Tenancy Act of 1949, the Controller would have no jurisdiction at all to proceed withthe suit and the suit must go back to the file of the Munsif.
4. The learned Advocate for the opposite party has also urged that under the provisions of the Calcutta Thika Tenancy Act, 1949, the Controller has no power to retransfer a suitto the file of the Munsif. Section 29, ThikaTenancy Act, 1949, provides for the transfer tothe Controller of cases relating to Thikatenancy and not for retransfer of cases fromthe Controller to the ordinary civil Court. It is true that in the Calcutta Thika Tenancy Act, 1949, there is no express provision for retransfer of cases from the file of the Controller to the ordinary Civil Court; but if in fact it is found that a suit does not relate to a thika tenancy,, it is clear that the Controller can have no jurisdiction and the case mustgo back to the Civil Court.
5. It is finally urged on behalf of the opposite party that it is only the District Judge who could retransfer the case back to the file of the Munsif under the provisions of Section 24, C.P.C. and the Controller himself could not do so, because the Controller has to be governed by the provisions of Civil P. C. In this connection, the learned Advocate has referred to Rules 4(3) and 12 of the Rules framed under i the Calcutta Thika Tenancy Act. This is a point however that I need not finally decide as I propose to send back the case to the file of the learned District Judge, 24 Parganas, fordisposal of the appeal on merits and the point therefore can be considered by him. I maynote however in passing that in an unreported case, Civil Revision Cases Nos. 1272 and 1273 of 1950 Roxburgh J. approved of a retransfer by the Controller to the file of a Munsif on the ground that the Munsif should first decide whether the tenancy was in fact a thika tenancy.
6. The Rule is therefore made absolute, and the case is sent back to the court of the learned District Judge of 24 Parganas for disposal Of the appeal, under Section 27(1), Thika Tenancy Act, on merits.
7. In the circumstances the parties willbear their own costs in this Rule.