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Gobordhan Dutta and anr. Vs. Promotha Nath - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 7 of 1952
Judge
Reported inAIR1953Cal412
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2), 96 and 115; ;West Bengal Premises Rent Control (Temporary Provisions) (Amendment) Act, 1950 - Sections 6, 18 and 18(1)
AppellantGobordhan Dutta and anr.
RespondentPromotha Nath
Appellant AdvocateNirmal Chandra Chakravartti and ;Satyasanti Mukherji, Advs.
Respondent AdvocateHemendra Nath Banerjee, Adv.
Cases ReferredSm. Radharani v. Sisir Kumar
Excerpt:
- .....115, civil p.c. -- arising out of the tenant's application under section 6, west bengal premises rent control (temporary provisions) (amendment) act (west bengal act 62 of 1950) read with section 18(1), west bengal premises rent control (temporary provisions) act 1950 (west bengal act 17 of 1950). the application was allowed by the trial court and the landlords' appeal against that decision was dismissed by the lower appellate court not upon the merits but upon the preliminary ground that under the law no appeal lay against an order passed under section 6, rent control (amendment) act, 1950 or section 18(1), rent control act, 1950. on the merits the learned subordinate judge expressed himself tentatively in favour of the appellants-landlords but as in his view the appeal before him was.....
Judgment:

P.N. Mookerjee, J.

1. This is the landlords second miscellaneous appeal -- and there is also an application in the alternative under Section 115, Civil P.C. -- arising out of the tenant's application under Section 6, West Bengal Premises Rent Control (Temporary Provisions) (Amendment) Act (West Bengal Act 62 of 1950) read with Section 18(1), West Bengal Premises Rent Control (Temporary Provisions) Act 1950 (West Bengal Act 17 of 1950). The application was allowed by the trial Court and the landlords' appeal against that decision was dismissed by the lower Appellate Court not upon the merits but upon the preliminary ground that under the law no appeal lay against an order passed under Section 6, Rent Control (Amendment) Act, 1950 or Section 18(1), Rent Control Act, 1950. On the merits the learned Subordinate Judge expressed himself tentatively in favour of the appellants-landlords but as in his view the appeal before him was incompetent he did not pursue that matter to its final conclusion. Against the dismissal of their appeal by the learned Subordinate Judge the landlords have preferred this second miscellaneous appeal and in the alternative they have also filed an application under Section 115, Civil P.C. for revision of the adverse orders of both the Courts below.

2. The suit for ejectment was instituted on 13-5-1949 and the relevant ground under the Rent Control Act of 1948 (West Bengal Act 37 of 1948) which was then in force and was, therefore, applicable to the case, was 'ipso facto' determination of the defendant's tenancy on account of non-payment of rent for mire than three months, or, rather, three consecutive months, that is the ground under Section 12(3) of the said Act of 1948. The suit was decreed ex parte on 28-8-1950 but admittedly the defendant remained in possession in spite of the said decree and after an unsuccessful attempt to get the decree set aside under Order 9, Rule 13, Civil P.C. the tenant-defendant made an application under Section 18(1), Rent Control Act, 1950 on 20-1-1951. This application was registered as Misc. Judicial Case No. 16 of 1951 and was eventually allowed by the learned Munsif by his order dated 10-2-1951 which ran as follows:

'Miscellaneous Case will be allowed on contest without cost and the decree will be rescinded on applicant's depositing in Court within forty days from the date Rs. 1,581-10-4 only. Put up for further order on 24-3-1951.'

The deposit was made in time on 22-3-1951 and the plaintift's-decree-holders' further objection to the tenant's application under Section 6, Rent Control (Amendment) Act, 1950 and Section 18(1), Rent Control Act of 1950 and the former's prayer for reconsideration of the above order dated 10-2-1951 were rejected by the learned Munsif on 7-4-1951 when he allowed the Miscellaneous Case (Misc. Judl. Case No. 16 of 1951), accepted the tenant's deposit and rescinded the ejectment decree. Thereupon the landlords appealed and the learned Subordinate Judge having, as stated above, dismissed this appeal on the preliminary ground that the same was not maintainable in law and having thus upheld the rescission of the ejectment decree, the unsuccessful plaintiffs-landlords have now come up to this Court in second appeal and alternatively in revision.

3. We have already said that the learned Subordinate Judge expressed no final opinion on the merits of the tenant's application under Section 6, Rent Control (Amendment) Act, 1950 and Section 18(1), Rent Control Act, 1950 although his tentative observations were against the same, and he dismissed the landlords' appeal only on the ground that it was not maintainable in law. If, therefore, we find that that appeal was not incompetent we would remit the same to the learned Subordinate Judge for consideration. on the merits. In case, however, we agree with the learned Judge in his view that the appeal before him was not competent, the landlord's appeal before us and his application for revision against the decision of the learned Subordinate Judge must fail. But we. shall then have to consider the landlords' revisional application under Section 115, Civil P.C. so far as it relates to the learned Munsif's order.

4. The first question, therefore, that requires determination is whether the landlord's appeal before the lower Appellate Court was maintainable in law. There is no dispute as to the relevant facts. Admittedly there was an ejectment decree and an application under Section 6, Rent Control (Amendment) Act, 1950 read with Section 18(1), Rent Control Act, 1950. Admittedly also that application succeeded before the trial Court and the ejectment decree was rescinded. The adjudication rescinding the decree of ejectment was, as stated above, made by the learned Munsif on 7-4-1951 and the relevant expression of that adjudication appears in the record as follows:

'The Miscellaneous Case No. 16 of 1950 isallowed with costs. The deposit made by theapplicant is accepted. The decree of ejectment passed in Title Suit No. 785 of 1949 is rescinded.'

The question now is whether an appeal lies from this adjudication, or, rather, this expression of adjudication, and upon the answer to that question depends the fate of this appeal and to some extent also of the revisional application.

5. It is well settled that an appeal is a creature of statute vide -- 'Sandbach Charity Trustees v. North Saffordshire Railway Co.', (1877) 3 Q B D 1 (A); vide also -- 'Rangoon Botatoung Co. Ltd. v. Collector, Rangoon', 39 Ind App 197(PC) (B). It is also equally well established that

'Where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute, the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal.'

Vide -- 'Adaikappa Chettiar v. Chandrasekhara Thevar', . An adjudication under Section 6, Rent Control (Amendment) Act, 1950 or under Section 18(1), Rent Control Act, 1950 has not been expressly made appealable by any statute but nonetheless it involves determination of legal rights in dispute and by the application under that section the Civil Court is called upon to make this determination. It thus follows that an adjudication under Section 6, Rent Control (Amendment) Act, 1950 or under Section 18 (1), Rent Control Act, 1950 is an adjudication or determination by the Civil Court of legal rights in controversy between the parties. The Code of Civil Procedure contains the general provisions for appeals from adjudications by the Civil Court (vide Sections 96, 100, 104 and Order 43, Rule 1 of the Code). We are thus led to consider whether the learned Munsif's adjudication of 7-4-1951 satisfies the test of appealability under the Code of Civil Procedure. If it does an appeal will lie from that adjudication, otherwise the learned Subordinate Judge's view will have to b? upheld as there is no other provision in law under which a right of appeal can be claimed by the landlords-appellants before us.

6. Under the Code, of Civil Procedure adjudications of Civil Courts are classified under two heads, viz., decrees and orders. Section 2 (2) defines a decree as

'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,'

all other adjudications, to be precise, the formal expressions thereof being 'orders' under the residuary definition clause in Section 2(14) which says that an 'order' means the formal expression of any decision of a Civil Court which is not a decree.' Section 2 (9) of the Code defines a 'judgment' and this definition runs as follows: '

'judgment' means the statement given by the Judge of the grounds of a decree or order.'

7. The application under Section 6, Rent Control (Amendment) Act, 1950 or Section 18(1), Rent Control Act, 1950, for 'vacating the decree for ejectment' has to be made to the trial Court, and obviously, therefore, in the suit for ejectment wherein the decree in question was passed. The matter in controversy arising on this application is whether the decree for ejectment should be vacated or not -- upon which plainly depends the ultimate decision of the suit itself and which may thus, not very inappropriately be termed a 'matter in controversy in the suit'' vide -- already cited --and it is this controversy which the Court is called upon to decide on such an application. In the learned Munsif's adjudication the Court decided -- and decided finally so far as that Court was concerned -- this controversy or matter in controversy between the parties and the adjudication, therefore, is an adjudication of a matter in controversy in the suit. The question, however, still remains whether the expression of that adjudication as quoted above is a formal expression within the meaning of the definition of 'decree' as contained in, Section 2(2) of the Code.

8. The terms of the definitions of 'judgment', 'decree' and 'order' under the Code have been sufficiently set forth above. From, them it is abundantly clear that both decrees and orders are formal expressions of adjudications of the Civil Court and the grounds or reasons thereof constitute the judgment. It has also been recently held by a Bench of this Court, relying on the decision of the Judicial Committee in the case in , that there may be a composite document embodying the judgment and the order or the judgment & the decree, as the case may be, and neither Section 33 of the Code nor any other provision of law contains any bar to the adoption of such a course: vide -- 'Sm. Radharani v. Sisir Kumar', Civil Revn. Case No. 1465 of 1951, D/-10-9-1951 (Cal) (D). In the above context the expression of the learned Munsif's adjudication dated 7-4-1951 as contained in the record and quoted above may well be termed as 'formal expression', as contemplated in Section 2(2) of the Code.

9. In the light of what has been stated above, the learned Munsif's adjudication dated 7-4-1951 is a decree under the Code. So far as the learned Munsif is concerned, he has by that adjudication conclusively determined the rights of the parties with regard to the question under Section 6, Rent Control (Amendment) Act, 1950 read with Section 18, Rent Control Act, 1950 that is, with regard to one of the matters in controversy in the suit as explained above. It also contains a formal expression of that adjudication -- may be with some of the grounds of that adjudication -- and is thus or, at least, comprises within it, a decree under the Code. It is, therefore, appealable under the law and the learned Subordinate Judge was not right in throwing out the landlords' appeal on the preliminary ground that it was not maintainable. The decision of the learned Subordinate Judge must, accordingly, be set aside and the case remanded to that Court for a proper hearing of the landlords' appeal before it in accordance with law. As the error committed by the learned Subordinate Judge, obviously affected the exercise of his jurisdiction it is revisable by this Court whether an appeal lies to it under the law or only its revisional powers can be invoked, and it is thus immaterial whether we interfere in this case in appeal or in revision.

10. This appeal and the connected revisional application are disposed of as above. The decision of the learned Subordinate Judge complained against therein is set aside and the case is sent back to that Court so that the landlords appeal before it may be dealt with and determined in accordance with law and in the light of the observations contained in this judgment.

11. The parties will bear their own costs in these proceedings before this Court. Other or further costs will abide the final result.

Guha Ray, J.

12. I agree.


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