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Sm. Radharani Das Vs. Sisir Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1465 of 1951
Judge
Reported inAIR1953Cal524,57CWN127
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2) and 96; ;West Bengal Premises Rent Control (Temporary Provisions) (Amendment) Act, 1950 - Section 6; ;Constitution of India - Articles 141 and 372
AppellantSm. Radharani Das
RespondentSisir Kumar and ors.
Appellant AdvocateHemendra Chandra Sen and ;Nitya Ranjan Biswas, Advs.
Respondent AdvocateBankim Chandra Banerjee and ;Umaprosad Mukherjee, Advs.
Cases ReferredRoy v. Sm. Asbalata Devi
Excerpt:
- .....such a composite document and such documents are clearly contemplated by rules 187 and 188 of our civil rules and orders and the decision of the judicial committee above cited, may thus have been given in spite of the said section 33 and with the fullest notice or cognisance thereof and it is not necessarily inconsistent with the same. it is also to be remembered that a decision of the judicial committee is binding upon this court until the supreme court rules otherwise (vide article 225 of the constitution and article 141) and it is not disputed before us that there has been uptill now no contrary pronouncement by the supreme court affecting the above decision of the judicial committee or the relevant dictum contained therein. in such circumstances, we must proceed upon the view of law.....
Judgment:

P.N. Mookerjee, J.

1. This Rule is directed against an order of the learned Munsif, First Additional Court, Alipore, rejecting the petitioner tenant's application for rescission of an ejectment decree obtained against her by the landlords opposite parties. The application was made under Section 6, West Bengal Premises Rent Control (Temporary Provisions) (Amendment) Act, 1950 (West Bengal Act 62 of 1950) which runs as follows:

'Where at any time between the commencement of the said Act (West Bengal Premises Rent Control (Temporary Provisions) Act, 1950-West Bengal Act 17 of 1950) and of 'this Act' (West Bengal Act 62 of 1950) an order or decree for the recovery of possession of any premises has been made or passed by any Court but possession of such premises has not 'been recovered in execution of such order or decree and the Court is of opinion that the order or decree would not have been made or passed if 'this Act1 had been in force when the order or decree was -made or passed, the Court may, on application by the tenant within sixty days of the commencement of 'this Act' rescind, or vary the order or decree on such terms and conditions as it deems necessary for the purpose of giving effect to the provisions of Section 18 of 'the said Act' as amended by 'this Act'.'

2. The application was rejected by the learned Munsif on 26-5-1951 and the propriety of this decision is the subject-matter of the present Rule which is opposed by the landlords.

3. At the hearing of this Rule, a preliminary objection was taken to its maintainability and Mr. Banerjee, appearing for the landlords, contended that from the learned Munsif's decision an appeal lay under the law and, accordingly, the present application for revision was incompetent.

4. The question thus arises whether the learned Munsif's decision rejecting the petitioner's application under Section 6, Rent Control (Amendment) Act (West Bengal Act 62 of 1950) is in law appealable. That question is of considerable difficulty and importance and in answering the same we have preferred to follow the line of least resistance. We are free to confess that we have reached our conclusion not without some hesitation but we have at least this satisfaction that that conclusion has the support of the highest judicial authority. It is well settled that appeal is a creature of statute: vide -- 'Sandback Charity Trustees v. North Staffordshire Rly. Co.', (1877) 3 QBD 1(A) and -- 'Rangoon Botatoung Co. Ltd. v. The Collector, Rangoon', 39 Ind App 197 (PC)(B) and it is not disputed that there is no specific provision in the Rent Control Act (West Bengal Act 17 of 1950) or in the Amending Act (West Bengal Act 62 of 1950) referred to above, authorising an appeal from a decision under Section 6 of the Amending Act 62 of 1950 or Section 18 of the Original Act (Act 17 of 1950) whether in its amended form to which the Amending Act in its Section 6 specifically refers or as it stood before the amendment.

It is also equally well settled that when a legal right is in dispute and the ordinary Courts of the country are seised 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' . There can be little doubt that in an application under Section 6 of the Amending Act 62 of 1950, or Section 18 of the original Act (Act 17 of 1950), whether before or after the amendment, a legal right is in dispute and that the ordinary civil Court of the country is in seisin of the same, that is, of such dispute. If, therefore, the decision of such an application falls within the provision or provisions which authorise appeals from decisions of civil Courts, its appealability would be beyond question. The Code of Civil Procedure contains the general law of appeals in relation to civil Court decisions. Under it decisions or adjudications of civil Courts are divided into two classes, viz. decrees and orders. Decrees are as a rule appealable excepting decrees passed on consent. Orders are appealable only when they fall within Section 104 or Order 43, Rule 1 of the Code. Admittedly the impugned decision with which we are here concerned cannot be brought within any of these latter provisions namely, Section 104 and Order 43, Rule 1 of the Code. The relevant enquiry therefore is whether it satisfies the tests or requirements of a decree under the Code of Civil Procedure.

5. Prior to the decision of the Judicial Committee in -- , there was a large, almost overwhelming, preponderance of judicial opinion in this country, the underlying principle whereof would have answered this question in the negative. That opinion was apparently based on the view that an application to re-open, rescind, vary, amend or modify the decree could not appropriately be said to involve the determination of a matter in controversy in the suit, and although the application might have to be made in the suit itself, a question concerning the decree, -- already passed in the suit, could hardly be properly called a matter in controversy in the suit. This view, however, was not accepted by the Judicial Committee in the case, above cited, where their Lordships further held that mere rejection or dismissal of such an application might in the circumstances of a particular case amount to a formal expression of adjudication within the meaning of the definition of a decree as contained in the Code and their Lordships thus authoritatively laid down that such rejection or dismissal would be a decree under the Code and open to appeal as such.

6. True, in the judgment of their Lordships there is no reference to Section 33 of the Code of Civil Procedure, but merely from such non-reference it can scarcely be concluded that that section escaped their Lordships' attention and that otherwise their decision would have been different. It is to be remembered in this connection that under the Code both 'decrees' and 'orders' are 'formal expressions of adjudication' and that the judgment is merely 'the statement given by the Judge of the grounds of a decree or order'. A document, therefore, embodying the reasons or grounds of adjudication and also its formal expression may well be a 'decree' or an 'order' under the Code and it will be the one or the other according as it contains the re-maining requisites or elements under the respective definitions. In the case of 'orders' such composite documents are often found and as both decrees and orders are formal expressions of adjudications and differ only in their constituents the 'order' being the residuary that is, 'the formal expression of any decision of a civil Court which is not a 'decree' such a composite document when it contains the other essential elements or requisite of, a decree may well be a decree under the Code.

Section 33 of the Code does not necessarily rule out such a composite document and such documents are clearly contemplated by Rules 187 and 188 of our Civil Rules and Orders and the decision of the Judicial Committee above cited, may thus have been given in spite of the said Section 33 and with the fullest notice or cognisance thereof and it is not necessarily inconsistent with the same. It is also to be remembered that a decision of the Judicial Committee is binding upon this Court until the Supreme Court rules otherwise (vide Article 225 of the Constitution and Article 141) and it is not disputed before us that there has been uptill now no contrary pronouncement by the Supreme Court affecting the above decision of the Judicial Committee or the relevant dictum contained therein. In such circumstances, we must proceed upon the view of law as expounded in the said decision and the controversy in the present case must be determined on that footing. It may be added here that even before the decision in -- , this Court laid down and applied a similar principle in a case under the Calcutta Rent Control Ordinance of 1946: vide -- 'Gouri Dutt v. Kasiram', ILR (1948) 2 Cal 494 (D).

7. In the above view of the matter and examining the materials before us in the light of the Judicial Committee's pronouncement already cited it must be held that the learned Munsif's decision dated 26-5-1951 contained an adjudication which so far as that Court was concerned 'conclusively determined the rights of the parties with regard to a matter of controversy in the suit'. It was also a 'formal expression' of that adjudication. It was thus a decree under the Code of Civil Procedure and was as such appealable. This view is clearly supported by two recent decisions of this Court, both under the Bengal Money Lenders' Act, one reported in the case of -- 'Satish Chandra v. Riyasat Hossain', ILR (1949) 1 Cal 487 (E) and the other to be found in the case of -- 'Jadu-nath Roy v. Sm. Asbalata Devi', First Misc. Appeal No. 19 of 1948 decided by Sen and Chunder JJ. on 27-4-1950 (Cal) (P) not yet reported, where the above decision of the Judicial Committee was noticed, cited, considered and followed.

8. We hold, therefore, that under the law an appeal lay from the decision of the learned Munsif now challenged before us and as such the present application in Revision is not competent or maintainable. The preliminary objection is, accordingly, upheld and this Rule is discharged on that ground.

9. In the above view of the matter it is not npcessary for us to express any opinion on the other questions involved in this Rule.

10. The parties will bear their own costs in this Court.

Das Gupta, J.

11. I agree.


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