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Sm. Ashalata Mitra Vs. A.D. Viz - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 3361 of 1955
Judge
Reported inAIR1956Cal311,60CWN574
ActsCode of Civil Procedure (CPC) , 1908 - Section 115; ;West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Section 14(4)
AppellantSm. Ashalata Mitra
RespondentA.D. Viz
Appellant AdvocateChandra Nath Mukherji and ;Alak Gupta, Advs.
Respondent AdvocateAshutosh Ganguly, Adv.
Cases ReferredMeher Singh v. Keshardeo Chamaria
Excerpt:
- .....of rent.this order was passed under the provisions of section 14(4) of the west bengal premises rent control (temporary provisions) act, 1950. before the suit was further proceeded with and a decree was passed, the tenant opposite party preferred an appeal against this order to the learned district judge.in that appeal, it was contended on behalf of the landlord petitioner that the appeal was incompetent and was not maintainable. the preliminary issue as to whether the appeal was maintainable was tried by the learned district judge and was decided by his order dated 19-11-1955.3. the learned advocate for the petitioner has contended before us that the appeal before the learned district judge was incompetent and that therefore the order complained of should be set aside.4. the learned.....
Judgment:

Bachawat, J.

1. This application in revision is directed against an order of the learned District Judge of 24-Parganas, dated 19-11-1955, holding that the appeal was maintainable and fixing 7-1-1956 for the hearing of the appeal.

2. The petitioner landlord instituted against the opposite party tenant a suit for ejectment in the court of the 4th Subordinate Judge, Alipore. By an order dated 24-8-1955, the learned Subordinate Judge passed an order striking out the defence of the tenant opposite party on the ground that he had not deposited the arrears of rent.

This order was passed under the provisions of Section 14(4) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. Before the suit was further proceeded with and a decree was passed, the tenant opposite party preferred an appeal against this order to the learned District Judge.

In that appeal, it was contended on behalf of the landlord petitioner that the appeal was incompetent and was not maintainable. The preliminary issue as to whether the appeal was maintainable was tried by the learned District Judge and was decided by his order dated 19-11-1955.

3. The learned Advocate for the petitioner has contended before us that the appeal before the learned District Judge was incompetent and that therefore the order complained of should be set aside.

4. The learned Advocate for the opposite party contends that no case has been decided by the learned District Judge and as such no revisional application is maintainable against the order dated 19-11-1955. In our opinion, there is no substance in this contention.

This Court has the power to interfere in revision with orders passed at any stage of a suit, for the purpose of preventing failure of justice even if there is another remedy open to the injured party. If the decision of the learned District Judge is allowed to stand, the learned District Judge would be holding an enquiry in a matter in which he has no jurisdiction vested in him by law and it will lead to unnecessary expenses and waste of time.

In my opinion, the order dated 19-11-1055 amounts to a case decided and we have the power to interfere with the order under Section 115 of the Civil P. C.

5. The learned District Judge held that the appeal was competent, relying upon the observations in -- 'Sunil Baran Roy Choudhury v. Purna Chandra Chandra' 59 Cal WN 974 (A). In that case, in an appeal from a decree for ejectment it was contended that the learned Judge had acted wrongly in passing the order under Section 14 (4) of the West Bengal Premises Bent Control (Temporary Provisions) Act, 1950.

The Division Bench observed that no appeal having been preferred against that order, that order became final and could, no longer, be questioned. It was apparently assumed in that judgment that an appeal lay against an order under Section 14 (4) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950.

The observations in that judgment undoubtedly support the contention that an appeal lies from an order under Section 14 (4) of the Rent Control Act of 1950. It is to be noticed, however, that the judgment gives no reason for holding that such appeal lies.

6. A right of appeal can be conferred only by statute. Where no right of appeal has been conferred by statute, there can be no appeal. The West Bengal Premises Rent Control (Temporary Provisions) Act of 1950 does not provide for any appeal from such order.

It is also beyond doubt that the order is not appealable under Order 43, Rule 1 of the Civil P. C. The order, therefore, can be appealable only if it is a decree. It has been contended by the learned Advocate for the opposite party that the order in question is a decree.

By Sub-section (2) of Section 2 of the Civil P. C., 'decree' means

'the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.'

It is contended on behalf of the opposite party that the order striking out the defence under Sec. 14 (4) of the Rent Control Act of 1950 conclusively determines the right of the plaintiff to eject the defendant from the premises.

This contention is entirely without substance. When an order is made under Section 14 (4), striking out the defence against ejectment, the tenant is placed in the same position as if he had not defended the claim to ejectment. The order does not yet determine that the plaintiff is entitled to ejectment.

On the date fixed for hearing of the suit, the plaintiff must adduce evidence to establish that he is entitled to a decree for ejectment and where such evidence is adduced and the Court is satisfied that the plaintiff has the right to eject the defendant, the Court can only then pass a decree for ejectment.

7. It is next urged on behalf of the opposite party that the order striking out the defence under Section 14 (4) of the Rent Control Act of 1950 conclusively negatives the right of the defendant to defend the suit and therefore the order amounts to a decree. I am again unable to accept this contention.

Undoubtedly, the right of defence is a valuable substantive right. In my opinion, however, such right is not a right with regard to any of the matters in controversy in the suit. In -- 'Kamini Deb v. Promotha Nath' 1915 Cal 272 [AIR V 2] (B), Mookerjee and Beachcroft JJ. held that a decision merely holding that the plaintiff's suit is maintainable is not a preliminary decree and that such a decision was not an adjudication on 'matters in controversy' in the suit.

I respectfully agree with that decision. In my opinion, the question whether the defendant ought to be entitled to defend the suit is not a right with regard to a matter in controversy in the suit and as such an order negativing the right of such defence does not amount to a decree.

8. In -- 'Meher Singh v. Keshardeo Chamaria', 59 Cal WN 1148 (C), P. N. Mookerjee J. had! occasion to point out that an order striking out the defence against ejectment under Section 14 (4) of the Rent Control Act of 1950 is not appealable and he was not inclined to agree with the decision in '59 Cal WN 974 (A)', on this point. I respectfully agree with the conclusions of P. N. Mookerjee J. on this point.

9. In my opinion, an order under Section 14 (4) of the Rent Control Act of 1950, striking out the defence against ejectment, is not appealable. With respect, I am unable to agree with the observations in '59 Cal WN 974 (A)', in so far as it holds or assumes that such appeal lies. I am strengthened in my conclusions in view of the fact that my learned brother who was himself a party to the decision in 'Sunil Baran Boy Choudhury's case (A)', is of the opinion that such order is not appealable.

10. We pass the following order.

11. We set aside the order of the learned District Judge dated 19-11-1955. We adjudge and declare that the appeal before him is not maintainable and should be dismissed on that ground. We direct the learned District Judge to dismiss the appeal accordingly.

12. There will be no order as to costs in this Court.

13. Let the records be sent down as early as possible.

Guha Ray, J.

14. I agree with the view taken by my Lord that an order under Section 14 (4) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, is not appealable and that the view taken by the learned Court below that the appeal before it from such an order was maintainable is not sustainable. But as I was a party to the decision in the case of '59 Cal WN 974 (A)', it is necessary that I should add a few words of my own.

It appears to have been assumed in that case that such an order was appealable but there is no reference to any provision of law under which it was appealable. On a closer examination, however, it now appears that such an order cannot be appealable either as an order or as a decree because there is no provision under which such an order is appealable and because an order striking out the defence is not really a decree within the meaning of the word in Section 2(2) of the Civil P. C.

An appeal is entirely a creature of the statute, so that if the order striking out the defence is appealable, it must be under some provision or other of a statute. The West Bengal premises Rent Control (Temporary Provisions) Act, 1950, does not make the order appealable. There are in the Civil Procedure Code two provisions under which a defence can be struck out.

The first is Rule 13 of Order 6 and the second is Rule 21 of Order 11 of the Civil P. C. The second is appealable under Order 43, Rule 1(f) but clearly an order under Section 14 (4) of the Rent Control Act of 1950 does not amount to an order under Rule 21 of Order 11 because that is an order striking out a dei'ence on the ground of non-compliance of the order for discovery.

The order under Rule 16 of Order 6 has not been made appealable at all under Order 43 of the Civil P. C. If, therefore, an order under Section 14 (4) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, is nothing more than an order, it is clearly not appealable.

15. It has been contended on behalf of the opposite party that the order really amounts to a decree because it negatives the defendant's right to defend the suit. Although the right to defend a suit may be a very valuable right, it is not certainly a right in regard to any of the matters in controversy in the suit and by the order striking out the defence, there is really no final decision of any of the matters in controversy and these matters have still to be decided by the Court even after the defence has been struck out.

The nearest analogy to such a case is when in a suit the question of jurisdiction is taken up as a preliminary issue and decided. If the Court decides that it has jurisdiction, that itself does not dispose of the rights of the parties and the Court has still to decide the rights of the parties after it has decided the question of jurisdiction.

The order, therefore, to my mind, striking outthe defence under Section 14 (4) of the Rent ControlAct of 1950, cannot amount to a decree and, aspointed out by My Lord, there is authority for theproposition that it does not. In these circumstances, it has got to be said that the view taken in'59 Cal WN 974 (A)', that the order striking outthe defence under Section 14 (4) of the West BengalPremises Rent Control (Temporary Provisions)Act, 1950, is appealable, does not stand closescrutiny.


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