1. This appeal relates to a money suit for recovery of landlord's fees. The suit was dismissed in the trial Court as being not maintainable and this view was also taken in the Court of appeal below, the learned Subordinate Judge holding that since Section 26-J, Ben. Ten. Act, expressly provides for such a case and lays down that the landlord should come to Court and file an application under Section 26-J, a suit for recovery of fees is not maintainable. In support of this view he cited the case of Md. Ismail v. Lal Mia 1933 Cal 784, where it was held that such a suit was not maintainable. In that case the earlier cases of Srinath Bose v. Debendra Nath 1933 Cal 24 and Aghore Chandra Jalui v. Rajnandini Debi 1933 Cal 283 were referred to. But on referring to those cases and also to the unreported case of Hari Mohan Sarkar v. Lokenath Mukherji Civil Revision No. 768 of 1931, which was referred to in Aghore Chandra Jalui v. Rajnandini Debi 1933 Cal 283, I find that in those cases all that was decided was that the landlords were entitled under the law to recover the balance of the landlord's fee by means of an application. It was held that although Section 26-J does not expressly mention the procedure to be followed for the purpose of recovering landlord's fee and compensation, it is the intention of the legislature to provide a procedure of a summary nature. But under Section 9, Civil P. C., the Courts have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred, and I do not think that by the provisions of Section 26-J, Ben. Ten. Act, a suit can be said to be impliedly barred so as to be not maintainable. With all due deference to the learned Judge who decided the case of Md. Ismail v. Lal Mia 1933 Cal 784, I think he misdirected himself as to the effect of the previous decisions. The proper procedure, to my mind, in a case like this is for the Court to treat the matter as an application under Section 26-J, Ben. Ten. Act, and that is what should have been done in the present case. The learned Subordinate Judge says that it would be a travesty of the procedure to permit this being done. But after all the Courts are there to enable justice to be done between the parties, and the landlord is simply asking for fees which, under the law, are due to him, and the mere fact that he applies in the wrong form is no reason why he should not recover the fees. The courtfees which he has paid for bringing a suit are more than those which he would have to pay on an application. Under 151 of the Code it is always within the powers of the Court to take action of this kind.
2. In these circumstances, the proper order to make will be to set aside the decision of the Court below, and to direct that the matter should go back to the trial Court to be treated as an application under Section 26. J and to be decided accordingly. The result is that the appeal is dismissed since the matter being one for the Small Cause Court, no appeal lies, but the application under Section 115, Civil P. C., is allowed. The parties will hear their costs both of this appeal and the application. The respondents will get their costs in the first two Courts.