S.R. Das Gupta, J.
1. This is an appeal against an order of the SpecialBench of the Court of Small Causes refusing toentertain an appeal against an order of a Judgeof the Small Causes Court passed on an application purported to be an application under Section 47,Civil P. C.
2. The appellant before us claims to be a subtenant in respect of premises No. 13, PagoapallyStreet, Calcutta. There was an ejectment decreeobtained by the landlords in the Court of theSmall Causes -against a tenant of the said premises. The landlords having obtained the decree for ejectment applied for execution. In the saidexecution proceedings an objection was filed bythe present appellant and others claiming to besub-tenants of the original tenant. The contention of the appellants and the other sub-tenants,was that by virtue of the provisions of the RentAct they had become direct tenants of the landlord and as such they are entitled to remain inthe premises as tenants. The learned Judge dismissed the application holding that the petitioners'rights cannot be enquired into in an applicationunder' Section 47 and the proper remedy of the appellants was to file a suit.
Against that order an appeal was preferred to the Special Bench of the Court of Small Causes, The Special Bench held that such an appeal cannot be entertained by the said Bench. The learned Judges referred to the provisions of Sub-section 6 of Section 32 and held that under the said provisions an appeal lies only from a decree in a suit for ejectment passed by a Judge of the Small Causes Court and an appeal from the order in question cannot be entertained. It is against that order that the present appeal has been preferred to this Court. I should mention that the remaining subtenants had also preferred an appeal to this Court and so far as their cases are concerned a Bench of this Court has held that although the rightclaimed by them cannot be enquired into or ascertained in a proceeding under Section 47, Civil P, C., the learned Judge should treat the application as a suit on payment of additional court-fees by theappellants before their Lordships.
3. In the present appeal the learned Advocate appearing for the appellants raised two contentions. In the first place, he contended that the Special Bench was wrong in not entertaining the appeal. In other words, his contention was that the Special Bench should have gone into the question as to whether or not the appellants could file such an application under Section 47, Civil P. C., or whether the remedy of the appellants was to institute a regular suit as held by the said Court, The learned Advocate contended that this question as to whether or not the application comes within Section 47 is a question which the Special Bench should have decided,'
4. As a pure question of law, we are of the opinion that the learned Advocate is right in his contention that the question as to whether or not the application comes within Section 47 should have been gone into by the Special Bench. Under sub-Section 2 of Section 2, Civil P. C. a 'decree' includes determination of any question within Section 47. So the learned Judge of the Court of Small Causes who passed the decree for ejectment could also determine all questions coming within Section 47 of the Code relating to the said decree. In this case the view taken by the trial Court was that the question raised by the appellants in the said application was not a question which can be determined in a proceeding under Section 47 of the Code and the said Court dismissed the application holding that the proper remedy of the appellants was to file a suit. How then is it to be determined as to whether or. not the view taken by the learned Judge was right! In our opinion, the Special Bench should have gone into the question and come to a decision as to whether or not the application filed, by the appellants before the lower Court was an application which comes within Section 47 of the Code. In other words, the Special Bench should have gone into the question as to whether or not the matter raised in the said application can be determined in a proceeding under Section 47 of the Code. It cannot be that because the trial Court has held that an application made by a certain party does not come within Section 47 of the Code, the matter is concluded by his decision and there is no right of appeal against the same. It may be that the learned trial Judge was wholly wrong in taking that view arid if that is so, then his decision should be set aside by the Special Bench. We agree with this contention of the learned Advocate for the appellants.
5. But the question is, even if we have held that the Special Bench should have gone into the question, should we send the matter back again to the Special Bench to determine it? If we had any doubt on the question as to whether or not the application made by the appellants before the lower appellate Court comes within Section 47 of the Code we would have certainly sent the matter back to the Special Bench to consider the said question. But in our opinion it is quite clear that the present application of the appellants does not come within Section 47, Civil P. C. and the questionraised in the said application cannot be gone into in a proceeding under Section 47. That is also the view which has been taken by a Bench of this Court in the case of -- 'Nityananda v. Parbati Nath', 58 Cal WN 407 (A). The same contentions which are raised before us were also raised by the appellants in that case. I should mention that the appellant in that case was one of the other subtenants in respect of the said premises who made similar applications before the trial Court.
Mr. Justice Lahiri in delivering Judgment observed that the right claimed by a sub-tenant was independent of the right of the tenant and for that reason a sub-tenant cannot be said to be a privy to the judgment pronounced against the tenant and he is not a representative of the tenant. In the premises, his Lordship held that the right claimed by a sub-tenant cannot be enquired into or ascertained in a proceeding under Section 47, Civil P. C. We respectfully agree with that view. The appellants before us have claimed that he has acquired the statutory right of a tenant under Section 30(1) (sic; Section 13(2), (?)) of the Rent Act of 1950. That right is clearly not a right claimed by the appellant through the tenant and 'is a right independent of the tenant. In our opinion, such a right cannot be gone into in an application under Section 47, Civil P. C. and the proper remedy of the appellant would have been to file a regular suit for the determination of that right. In these circumstances, we are of the opinion that no useful purpose would be served by sending the matter back to the Special Bench for the determination of the question as to whether or not the application made before the lower Court comes within Section 47, Civil P. C.
6. The learned Advocate for the appellants then contended before us that the matter should be sent back to the Judge of the Small Cause Court and he should be asked to treat the application as a suit on payment of the additional court-fees by his client. He referred us to the order which was made by this Court in the said case of 'Nityananda v. Parbati Nath (A)'. There, as I have already mentioned the learned Judges directed that the matter should be sent back and the learned Judge to treat the application as a suit on payment of the additional court-fees by the appellant. The learned Advocate contended before us that in this case we should also follow the same course.
We are unable to accept this contention of the learned Advocate. In our opinion, the application cannot be treated by the learned Judge of the Court of Small Causes as a suit even though the ad valorem court-fees be paid by the appellants, Under Section 16, Rent Act of 1950, the Courts, mentioned in Schedule B of the said Act, can exercise jurisdiction only in a suit for ejectment. The suit which the learned Judge will be directed to try, if he is asked to treat the application as a suit, would not be a suit for ejectment but would be a suit for determination of the rights of the appellants as a tenant. In other words, the suit which the Small Cause Court Judge would be trying, if he is to treat the application as a plaint, would be a Title Suit. This the. Small Cause Court Judge cannot do and Section 16 is a special provision givingjurisdiction to that Court only in respect of suits for possession. We do not see how the Court be- ' low can determine a suit which is not a suit for possession but is really a suit for declaration of title. In this view of the matter, we are of opinion that the Small Cause Court has no jurisdiction to try a suit for, declaration that the appellant has become a direct tenant under the landlords. It does not appear that this aspect of the matter was presented before the learned Judges who decided the case of 'Nityananda v. Parvati Nath (A)'. In any event, we very respectfully disagree with the view taken by their Lordships in that case on this point. We do not think we can make any order directing the learned Judge to. treat the application of the appellants as a suit and to try the same even on payment of ad valorem duty. The learned Judge, as we have indicated, has no jurisdiction to entertain such a suit. In the result this contention of the learned Advocate must also fail.
7. Before concluding my judgment, I ought to mention that the learned Advocate wanted some reasonable time to enable his client, if he is so advised, to file a suit on the Original Side of this Court and get an injunction against the landlords restraining them from getting possession of the premises and during that time he wanted a stay of the execution proceedings so that the landlords may not take possession of the premises. We consider the request; to be reasonable. We allow the appellant ten, days time from date to file a suit and get an order of injunction, if he is advised to do so. During the period of ten days there will be a stay of execution and the landlords will be restrained from obtaining possession o the premises in question from the appellant.
8. The appeal is otherwise dismissed with costs, hearing fee being assessed at two gold mohurs.
9. There will be no order on the alternative application under Section 115, Civil P. C.
10. I agree.