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Indian Homeopathic Medical Association and ors. Vs. Kanai Lal Pal and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Case NumberCivil Rules Nos. 740, 1582 and 1533 of 1949
Judge
Reported inAIR1950Cal263,54CWN389
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1948 - Section 32(6) and 32(7); ;Code of Civil Procedure (CPC) , 1908 - Section 115
AppellantIndian Homeopathic Medical Association and ors.
RespondentKanai Lal Pal and anr.
Appellant AdvocateParesh Nath Mukherjee and ;Gouranga Sundar Chatterjee, Advs. in No. 740 and ;Binayah Banerjee, Adv. in Nos. 1582 and 1583
Respondent AdvocateSitaram Banerjee, ;Anil Chandra Dutt and ;Pravish Chandra Chatterjee, Advs. in No. 740, ;Hiran Kumar Roy and ;Kanti Basu, Advs. in Nos. 1582 and 1583 and ;Hem Chandra Dhar, Adv. in No. 1583
Cases ReferredAlien Bros and Co. v. Bando and Co.
Excerpt:
- .....p. c., hereinafter called the code. the orders complained of in these rules were passed by the chief judge of the court of small causes, calcutta hereinafter called the chief judge, modifying on appeal the orders made by the additional rent controller fixing the standard rent of certain premises under the provisions of the west bengal rent control (temporary provisions) act, 1948, hereinafter called the act.2. mr. banerjee appearing for the opposite party has raised a preliminary objection that this court has no power to interfere with the orders complained of under section 115 of the code. his contention is that exercise of this power under section 115 of the code has been excluded by section 37 (6) and (7) of the act.3. it has not been disputed by mr. mukherjee appearing on behalf.....
Judgment:

G.N. Das, J.

1. The above cases were heard together. They arise out of applications under Section 115, Civil P. C., hereinafter called the Code. The Orders complained of in these Rules were passed by the Chief Judge of the Court of Small Causes, Calcutta hereinafter called the Chief Judge, modifying on appeal the orders made by the Additional Rent Controller fixing the standard rent of certain premises under the provisions of the West Bengal Rent Control (Temporary Provisions) Act, 1948, hereinafter called the Act.

2. Mr. Banerjee appearing for the opposite party has raised a preliminary objection that this Court has no power to interfere with the orders complained of under Section 115 of the Code. His contention is that exercise of this power under Section 115 of the Code has been excluded by Section 37 (6) and (7) of the Act.

3. It has not been disputed by Mr. Mukherjee appearing on behalf of the petitioner that the Provincial Legislature may, by appropriate legislation, take away the powers of this Court to interfere under Section 115 of the Code with an order passed by a Judicial Tribunal of Civil Jurisdiction.

4. In order to deal with this matter, it is necessary to refer to certain provisions of the Act.

5. Section 32 (1) of the Act impliedly provides for an appeal from an order of the Rent Controller, and requires it to be presented either to the Chief Judge or to the District Judge.

6. Section 32 (2) empowers the Provincial Government to appoint a person who has exercised the powers of a District Judge to hear appeals, presented to the Chief Judge and a Judicial Officer not below the tank of a Subordinate Judge to hear appeals presented to the District Judge.

7. For the sake of brevity, I shall hereinafter call the person appointed by the Provincial Government as the appointed Judge.

8. Section 32 (3) confers on the Chief Judge or the District Judge the powers to transfer and withdraw oases to or from the appointed Judge.

9. Section 82 (4) lays down the procedure to be followed in hearing an appeal.

10. Section 32 (5) provides for review.

11. Section 32 (6) empowers the High Court to revise an order imposing or confirming an order passed by the Controller imposing a fine under Section 20, Section 33 or Section 34 when the amount of fine is not less than five hundred rupees. The period of limitation is fixed at 30 days.

12. Section 32 (7) then provides that 'all decisions of the Chief Judge, or the District Judge, or a person appointed under Sub-section (2), as the case may be, shall, subject to the provisions of Sub-section (6), be final.'

13. According to the large majority of decisions, the word 'final' means not appelable but open to revision or review. Partha Saradhi Naidu v. Koteswara Rao, 47 Mad. 369 : (A.I.R. (11) 1924 Mad 561 F.B.) Phani Bhusan v. Sarat Kumar : AIR1935Cal773 and Manager, Spring Mitts Ltd. v. C. D. Ambekar, 51 Bom. L. R. 148 : (A. I. R. (36) 1949 Bom. 188).

14. In my opinion the words 'subject to the provisions of Sub-section (6)' necessarily exclude whatever other powers of revision the High Court may possess.

15. Mr. Mukherjee appearing for the petitioner submitted that the insertion of Sub-section (6) was made ex abudanti cautela with a view to provide against a possible contention that as the orders referred to were of a quasi criminal nature, revision was barred. This contention cannot be accepted. The High Court has ample powers of revision even in regard to orders of quasi criminal nature in appropriate cases.

16. Mr. Mukherjee next contended that the word 'revise' has been used in a wide sense and includes an appeal. This contention cannot also be accepted because in Section 32 itself, the Act used the words, 'appeal, review and revision.'

17. It was lastly contended that Sub-section (6) is wider in scope than Section 115 of the Code and was inserted with a view to confer on the High Court wider powers of revision in cases of a quasi criminal nature. This contention cannot also be accepted because the words 'subject to the provisions of Sub-section (6)' clearly imply a limitation and not an extension of the powers of the High Court.

18. In my opinion, the conclusion is irresistible that the power of the High Court to revise an order passed by the Rent Controller or the Chief Judge, the District Judge or the appointed Judge except in the specific cases mentioned in Section 32 (6) of the Act has been taken away by necessary implication. It is not disputed that the orders now in question do not come within the purview of Section 32 (6) of the Act. This Court has therefore no jurisdiction to interfere with the orders complained of.

19. Mr. Mukherjee was at considerable pains to show that the Chief Judge or the District Judge or the appointed Judge acts as and Court and not as a persona designata. He referred us to a long catena of cases in support of his submission. In the view I have taken, it is not necessary to express a final opinion on this question. Conceding that the Chief Judge or the District Judge or the appointed Judge is a Court when hearing an appeal from the order of the Rent Controller, before this Court can interfere with an order passed in appeal the appellate tribunal must be subject to the revisional jurisdiction of this Court under Section 115 of the Code. It cannot be disputed that the appellate tribunal constituted under the Act is a a Court of special jurisdiction on the well settled principle that where a statute confers on and judicial tribunal the power to determine a right or liability which is the creation of the statute but which, but for that statute it would have had no jurisdiction to try, such jurisdiction is said to be special jurisdiction.

20. The question, therefore, arises whether an order passed by a Court of special jurisdiction is revisable by this Court under the provision of Section 115 of the Code. Mr. Mukherjee relied on the principle enunciated by Viscount Haldane, L. C. in National Telephone Co. Ltd. v. Post Master General (NO. 2), (1913) A. C. 546 : (82 L. J. K. B. 1197), namely, where a special jurisdiction is conferred on an existing or established Court without more, it will attract all the ordinary incidents of the ordinary jurisdiction of such Court. The rule thus enunciated refers to an existing or established Court. This is also emphasised by Lord Atkinson in the same case at p. 555 where the rule is said to imply simply the question of extending the jurisdiction of an existing Court of Law. Lord Parker of Wadding-ton at p. 562 (ibid) speaks of the principle as applicable to cases 'where by statute matters-are referred to the arbitration of a Court of record.' Mr. Mukherjee also relied on the decision in Hem Singh v. Basant Das where the principle was applied in cases where the right of appeal was given to 'one of the ordinary Courts of the country' and it was observed that in such cases 'the procedure, orders and decrees of that Court will be governed by the ordinary rules of the Code of Civil Procedure.

21. It is fairly clear from the above discussion that the above principle only applies where the order complained of is an order passed either by the ordinary Court of the land or by a Court of record. The position was clarified by Rankin J. in the case of Alien Bros and Go. v. Bando and Co., 26 C. W. N. 845: (A. I. R. (10) 1923 Cal. 169). [22] The relevant observations run as follows: 'From the Act of 1861, from the Letters Patent and from the decisions I draw the conclusion that it is not enough for the purposes of the Code or the Letters Patent which deal on definite principles with a regular order o Courts; that from the limited nature of the powers conferred or from a mere comparison with other Courts, or from possible relationship thereto not yet subsisting, a new Court may be styled an inferior Court. An actual relationship to this Court must be established; an existing thread of connecting authority must be disclosed'.

23. If this view is accepted, then an order made by the appointed Judge which ex concessis must be regarded as a new tribunal will not be subject to revision by this Court.

24. In later cases, however, the principle has been extended to all Courts exercising special jurisdiction. Thus in the case of Md. Abdulla v. Giridharilal, 42 C. W. N. 507 : (A. I. R. (25) 1988 Cal. 448), it was held that an appellate officer appointed under the Bengal Agricultural Debtors Act is not subject to revisional jurisdiction of the High Court on the ground that the civil Courts contemplated by Clause 16 of the Letters Patent do not cover Courts which are created by a special statute for a special purpose. In the later case of Bam Krishna v. Ali Newaj : AIR1938Cal688 , the fact that the appellate officer was the Munsif ex officio was held to be immaterial.

25. All the cases cited at the bar were reviewed by Mitter J., in the case of Nur Mahammad v. S. M. Solaiman, 49 C. W. N. 10 at p. 16, the learned Judge lays down the following general rules :

'(1) The general rule is that when a matter reaches a civil Court, the procedure of civil Courts, would be attracted including the provisions regarding appeal from its judgments decrees and orders, but

(2) The general rule is applicable only where the matter comes to that Court as part of its ordinary jurisdiction and not by reason of a special jurisdiction having been conferred upon it.'

26. If this extended view is taken then this Court would have no power of revision under Section 115 of the Code in regard to orders passed either by the Rent Controller, the Chief Judge, the District Judge or the appointed Judge.

27. Reliance was placed on behalf of the petitioner on the case of H. D. Chatterjee v. L. B. Trivedi 26 C.W.N. 78 : (A.I.R. (9) 1922 Cal. 427), as also on the case of Allen Bros and Co. v. Bando and Co., 26 C. W. N. 845 : A.I.R. (10) 1923 Cal. 169). It is significant to note that in both these cases this Court interfered in revision with orders passed by the Rent Controller under the earlier Rent Act not under Section 116 of the Code but under Section 107, Government of India Act (since repealed). Section 107 empowered the High Court to exercise powers of superintendence over all Courts subject to its appellate jurisdiction. As Bankin J., pointed out in the latter case of Alien Bros and Co. v. Bando and Co., 26 C. W. N. 845 : (A.I.R. 10) 1923 cal. 162), in cases arising under the earlier Rent Act there was a thread of connecting link between the Rent Controller and the High Court through the President of the Tribunal because this Court had the power to hear an appeal from a decision of the President of the Tribunal in certain cases. These cases are therefore distinguishable.

28. Even if we take the limited view as regards the power of this Court to interfere in revision with orders of the special tribunal, it cannot be disputed that this Court cannot interfere with an order passed by the appointed Judge under Section 115 of the Code. If we are to hold that the power of revision is not excluded in those cases where the appeal under Section 32 of the Act is heard by the Chief Justice or the District Judge the result would be anomalous. The question would then depend on the fortuitous circumstances as to whether the appeal is heard by the Chief Judge, or the District Judge or the appointed Judge. Such a construction should not be adopted.

29. In my opinion, a reasonable view to take of the matter is to hold that Section 32 (6) and (7) of the Act by necessary intendment has taken away the powers of this Court to interfere in revision under Section 115 of the Code with an order passed by the Rent Controller or by the Chief Judge or the District Judge or the appointed Judge.

30. The preliminary objection, therefore, succeeds.

31. As the question involved was in a state of uncertainty the parties will bear their own costs in these revision cases.

32. The Rules are accordingly discharged.

Das Gupta, J.

I agree.


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