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D. Tancred and ors. Vs. D.N. Mullick - Court Judgment

LegalCrystal Citation
Subject Tenancy; Civil
CourtKolkata
Decided On
Reported inAIR1925Cal391,84Ind.Cas.543
AppellantD. Tancred and ors.
RespondentD.N. Mullick
Cases Referred and Damodara Mencn v. Kitappa Menon
Excerpt:
- 1. this is a reference under order 46, code of civil procedure, by the rent controller of calcutta on an application by the tenant for standardisation of rent in respect of a suite of rooms in premises no. 109-e, ripon street. a preliminary objection has been taken on behalf of the landlord to the jurisdiction of this court to hear the reference on the ground that the rent controller is not competent to make it under order 46, rule 1, code of civil procedure.2. two fundamental conditions are necessary under the above rule to entitle a court to make a reference under that order. the court making the reference must be a court of civil jurisdiction and that reference must be made in a suit, appeal or execution proceeding. the court of the rent controller is in certain respects a court of.....
Judgment:

1. This is a reference under Order 46, Code of Civil Procedure, by the Rent Controller of Calcutta on an application by the tenant for standardisation of rent in respect of a suite of rooms in premises No. 109-E, Ripon Street. A preliminary objection has been taken on behalf of the landlord to the jurisdiction of this Court to hear the Reference on the ground that the Rent Controller is not competent to make it under Order 46, Rule 1, Code of Civil Procedure.

2. Two fundamental conditions are necessary under the above rule to entitle a Court to make a Reference under that order. The Court making the Reference must be a Court of Civil jurisdiction and that Reference must be made in a suit, appeal or execution proceeding. The Court of the Rent Controller is in certain respects a Court of Civil jurisdiction: H. D. Chatterjee v. L.B. Tribedi A.I.R. 1922 Cal. 427; Allen Brothers & Co. v. Bando & Co. A.I.R. 1923 Cal. 169. The only question that remains therefore for dissuasion in whether the proceeding before the Rent Controller is a suit within the meaning of Order 46, Rule 1. The application is made by the tenant before the Rent Controller for standardisation of rent under Section 15 of the Calcutta Rent Act. The procedure to be followed by the Rent Controller is indicated in that section and certain powers are conferred upon him by Sections 16 and 17. In the last mentioned sections, as in all other parts of the Rent Act, the proceeding before the Rent Controller is called an enquiry.' The expression ' suit ' is nowhere used in the Rent Act with reference to proceedings before the Rent Controller. Section 23 of the Rent Act confers on the Local Government power to make rules to carry on the purposes of the Act and under Clause (c) to regulate among other matters the procedure to be followed in enquiries by the Controller. It is worthy of note that the term enquiries ' is used in Clause (c) of Section 23. Under the power thus conferred upon the Local Government it has framed and published a body of rules of which Rule 24 is in these words...' In all proceedings before them under the Act the Controller and the President of the Tribunal shall have all the powers possessed by a Civil Court for the trial of suits.' The question then arises as to whether this rule converts an enquiry before the Controller into a suit. In our judgment it does not. There are generally two characteristics of a suit. It either is or is not subject to appeal. The Act does not make any provision for or against the appeal from the older of the Controller but his decision is subject to revision by the President of the Tribunal in the town of Calcutta under Section 18 of the Act. The second criterion of a suit is that the decision is usually followed by a decree. Under Section 15 of the Act, the Rent Controller is to pass an order only and under Section 18 a copy of such order is to be filed with the petition of revision.

3. Reference in this connection may be made to Section 24 to the Act which provides that in revising the decision of the Controller the President of the Tribunal shall follow the procedure laid down in the Code of Civil Procedure for the regular trial of suits. The order of the Controller is here also described as the ' decision.' The procedure before the President will be as adopted in regular suits. From this it does not necessarily follow that the proceedings before him will also be a suit. To the same effect is Rule 4 of the rules framed by the Local Government under the Rent Act.

4. It is argued, however that Section 141, Civil Procedure Code which provides that the general procedure in suits applies in miscellaneous proceedings will attract to it the power to make a reference under Order 46, Rule 1. We cannot accept this contention and would only refer to the cases of Mahamad Haji Zakeria v. Ahmadbhai Habbibhai (1900) 25 Bom. 327, and Damodara Mencn v. Kitappa Menon (1911) 36 Mad. 16, which show that even a District Judge cannot make a reference in miscellaneous proceeding.

5. For all the foregoing reasons we hold that the enquiry before the Rent Controller is not a suit within the meaning of Order 46, Rule 1, and that order does not apply to miscellaneous proceedings. He is not therefore competent to make a Reference to this Court under that order. This Reference must therefore be returned unanswered. We make no order as to costs. Reference returned unanswered.


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