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Sukhendu Bikash Barua Vs. Hare Krishna De and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. (Mandamus) No. 160 of 1952
Judge
Reported inAIR1953Cal636,57CWN692
ActsCode of Civil Procedure (CPC) , 1908 - Section 115; ;Constitution of India - Article 227
AppellantSukhendu Bikash Barua
RespondentHare Krishna De and ors.
Appellant AdvocatePrafulla Kumar Roy and ;Anil Kumar Das Gupta, Advs.
Respondent AdvocateBankim Ch. Dutt and ;Bhabani S. Bagchi, Advs.
DispositionAppeal dismissed
Cases ReferredNarendra Nath Shasmal v. Binode Behary Dey
Excerpt:
- .....to whether an appeal would lie from a judgment of a judge of this court sitting singly passed in a civil revision case. as was to be expected, difference of opinion in the different high courts soon manifested itself. in an early case in madras, namely, the case of --'chappan v. moidan kutti', 22 mad 68 (a), a full bench of the madras high court was of the opinion that an appeal lay against such a judgment. subramania ayyar j. who delivered the leading judgment was of the opinion that though the letters patent did not specifically provide for powers of revision, powers of revision exercised by the high court were exercised by the court and such jurisdiction was not original jurisdiction but rather akin to appellate jurisdiction. the question arose in this court in the case of -- 'shew.....
Judgment:

Das, J.

1. This is an appeal by the defendant and is directed against a judgment of Chunder J., dated 28-3-1952.

2. The facts are that In September, 1949, the plaintiffs respondents initiated proceedings under Section 41 of the Presidency Small Cause Courts Act alleging that they required the disputed premises for their own use. The proceedings were numbered as Suit No, 10455 of 1949. The suit was decreed on contest by Mr. B.P. Bakshi, learned Judge, 4th Bench, his decision being dated 28-8-1949. Against that judgment an appeal was taken by the defendant to the Special Bench. The Special Bench dismissed the appeal on 23-3-1951. Thereafter the defendant filed a petition purporting to be under Section 115, Civil P. C. and Article 227 of theConstitution. A Rule was issued being Civil Rule No. 1437 of 1951. The Rule came up for hearing before Chunder J. who by his judgment dated 28-3-1952, discharged the Rule. Before the learned Judge two points appear to have been raised, namely, (1) whether the question whether the premises were required for the bona fide use of the landlords must be judged by a reference to the provisions of the Rent Control Act, 1948, or the Rent Control Act, 1950. (2) Whether the requirement contemplated by the Rent Control Act must be requirement of any one or more of the landlords. Chunder J. overruled the contentions on behalf of the petitioner and discharged the Rule as I have already stated. Against the judgment pronounced by Chunder J. on 28-3-1952, the defendant has filed the present appeal under Clause 15 of the Letters Patent. The appeal has come up before us for disposal. Mr. Dutt, learned Advocate on behalf of the respondents, has raised a preliminary objection that the appeal is incompetent.

3. The question is whether an appeal against an order passed in an application purporting to be under Section 115, Civil P. C. and Article 227 of the Constitution lies under Clause 15 of the Letters Patent.

4. The Letters Patent was originally issued on 14-5-1862, and was amended on 28-12-1865. The relevant portion of Clause 15 of the Letters Patent, as amended, is in these terms :

'And we do further ordain that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal from the judgment not being a sentence or an order passed or made in any criminal trial of one Judge of the said High Court or one Judge of any Division Court pursuant to Section 13 of the said recited Act.'

The said recited Act refers to the Indian High Courts Act, 1861 (24 and 25 Victoria, Ch. 104). It is necessary at this stage to state the provisions of the Code of Civil Procedure and of the different Acts relating to the powers of the High Court.

5. The earliest Code of Civil Procedure was Act 8 of 1859. That Act did not confer on the Court any power of revision. Such powers of revision were conferred for the first time by the Civil Procedure Code of 1861 (Act 22 of 1861). Section 35 of the said Act conferred a very limited power of interference in revision, the power being limited to cases where the lower appellate Court exceeded its jurisdiction. Meanwhile, on 6-8-1861, the Indian High Courts Act, 1861, also called the Charter Act, conferred on the High Court by Section 15 thereof the power of superintendence over all Courts subordinate thereto. By Act 10 of 1877 the powers of revision conferred on this Court were extended so as to include cases similar to those contemplated in Clauses (a) and (b) of Section 115, Civil P, C. 1908. The powers of revision were further enlarged by Section 42 of Act 12 of 1879. The powers of revision which were conferred on this Court by the last two Acts are identical with the powers which this Court now enjoys under Section 115 of the Code of Civil Procedure, 1908. The aforesaid two Acts, namely, Act 10 of 1877 and Act 12 of 1879, were consolidated and Section 622 of Act 11 of 1882 conferred on this Court powers of revision identical with those specified in Section 115 of the Code of Civil Procedure, 1908. Act 11 of 1882 was supersededby the present Code of Civil Procedure (Act 5 of 1908), Section 115 of the latter Act corresponds to Section 622 of the Act of 1882.

6. The Indian High Courts Act, 1861, was repealed by the Government of India Act, 1915. In the latter Act which is also a Parliamentary Statute, we find in Section 107 the analogue of Section 15 of the Indian High Courts Act, 1861. The Government of India Act, 1915, was repealed by the Government of India Act, 1935. Section 107 of the Government of India Act, 1915, was substituted by Section 224 of the Government of India Act, 1935. It may be pointed out that Section 224(2) of the Government of India Act, 1935 expressly took away from the High Court its power of superintendence in judicial matters.

7. Shortly after the issue of the Letters Patent in 1865 questions arose as to whether an appeal would lie from a judgment of a Judge of this Court sitting singly passed in a Civil Revision Case. As was to be expected, difference of opinion in the different High Courts soon manifested itself. In an early case in Madras, namely, the case of --'Chappan v. Moidan Kutti', 22 Mad 68 (A), a Full Bench of the Madras High Court was of the opinion that an appeal lay against such a judgment. Subramania Ayyar J. who delivered the leading judgment was of the opinion that though the Letters Patent did not specifically provide for powers of revision, powers of revision exercised by the High Court were exercised by the Court and such jurisdiction was not original jurisdiction but rather akin to appellate jurisdiction. The question arose in this Court in the case of -- 'Shew Prosad Bungshidhar v. Ram Chunder Hari Bux', AIR 1914 Cal 388 (2) (B). The judgment of the Bench was pronounced by Jenkins C. J. After referring to the decision of the Madras Full Bench and the relevant provisions of the Letters Patent the Charter Act and the Presidency Small Cause Courts Act which was then in question, it was observed as follows :

'I think the fair reading of the Charter Act, the Letters Patent and the Presidency Small Cause Courts Act leads to the result that the High Court has a right to interfere by way of revision and if that interference takes the form of a judgment by a single Judge, then the High Court has the power to deal by way of an appeal with that judgment (page 389).'

(7a) In consequence of the divergence of opinion between the different High Courts on the question whether an appeal lay under Clause 15 of the Letters Patent against a judgment of a single Judge exercising powers of revision, the Letters Patent came to be amended on 11-3-1919, by substituting the following words

'not being an order made in exercise of re-visional jurisdiction and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, 1915, or in the exercise of criminal jurisdiction'

for the words

'not being a sentence or order passed ormade in any criminal trial'.

8. Shortly after the amended Letters Patent the question whether an appeal lay from the judgment of a single Judge passed in a Civil Revision case came up for consideration before a Bench of this Court in the year 1921. The Bench had to consider whether an appeal lay against an order passed by Newbould J. on 2-2-1920, that is, on a date subsequent to the amendment of the Letters Patent in 1919. In the case of --'Byomkesh Seth v. Bhutnath Pal', AIR 1921 Cal 217 (C), the Bench was of the opinion that no appeal lay. The other High Courts also took the same view.

9. On 9-12-1927, the Letters Patent was further amended. It is necessary for the present purpose merely to state that for the words 'pursuant to Section 13 of the said recited Act' were substituted the words 'pursuant to Section 108 of the Government of India Act'. The meaning of the expression 'pursuant to Section 108 of the Government of India Act' came to be considered by the Special Bench in the case of -- 'Chairman, Budge Budge Municipality v. Mangru Mia', : AIR1953Cal433 (D), which was a case arising out of an application under Article 226 of the Constitution. It was observed by the Chief Justice that by virtue, first, of Section 38(1) of the Interpretation Act, 1889, which applied to the Government of India Act, 1935, and then of Section 8 of the General Clauses Act which applied to the Constitution, the reference to Section 108 of the Government of India Act in Clause 15 of the Letters Patent must not be construed as reference to Article 225 of the Constitution (p. 438).

10. The judgment of Chunder J. which was passed in an application under Section 115, Civil P. C. and Article 227 of the Constitution must therefore be read as a judgment passed by a Judge sitting singly pursuant to Section 108 of, the Government of India Act, 1915. It is not disputed that the decision of Chunder J. was a judgment within Clause 15 of the Letters Patent. The question which has been debated before us is whether the judgment of Chunder J. can be regarded as not being a judgment made in a Civil Revision case or in exercise of the powers of superintendence under Section 107 of the Government of India Act, 4915.

11. Mr. Roy who has appeared in support of the appeal has fairly conceded that in so far as the judgment of Chunder J. purports to be one made in exercise of the powers of revision under Section 115, Civil P. C., Clause 15 of the Letters Patent does not confer a right of appeal. The concession is based on the Bench decision of this Court in the case of --'AIR 1921 Cal 217 (C)'. The question which Mr. Roy has pressed before us is that the judgment of Chunder J. in so far as it can be regarded as being a dismissal of the application under Article 227 of the Constitution is not a judgment made by this Court in exercise of the powers of superintendence under Section 107 of the Government of India Act, 1915. I have already pointed out that Section 107 of the Government of. India Act, 1915, was superseded by Section 224 of the Government of India Act, 1935. The contention is that Section 224 of the Government of India Act, 1935, took away from this Court its power of interference in judicial matters, and if Clause S of the Letters Patent is deemed to have been attracted, and the reference to Section 107 of the Government of India Act, 1915, is read as reference to Section 224 of the Government of India Act, 1935, it would be meaningless. In order to deal with' the contention I shall refer tothe provisions of Section 8 of the General Clauses Act (Act 10 of 1897). That section provides inter alia that where any Central Act or Regulation or any Act of Parliament repeals or re-enacts with or without modification any provision of a former enactment, then reference in any Central Act or Regulation or Instrument to the provision so repealed shall, unless a different intention appears, be construed as reference to the provisions so re-enacted. Section 107 of the Government of India Act undoubtedly conferred on this Court powers of interference also in judicial matters. Section 224 of the Government of India Act, 1935, which replaced Section 107 of the Government of India Act was of a limited application, the jurisdiction of this Court to interfere in judicial matters being expressly taken away by Section 224(2). The question is whether Section 8 of the General Clauses Act would lead to the result that for Section 107 of the Government of India Act in Clause 15 of the Letters Patent we must read Section 224 of the Government of India Act, 1935. Mr. Roy contends that as Clause 15 provides for an appeal against a judgment which is a judicial matter, such a conclusion based on Section 8 of, the Letters Patent is unwarranted. The only effect of the above conclusion is to suspend the right of appeal for the time being.

In ray opinion, it is not permissible to cut down the plain words of Section 8 of the General Clauses Act. The whole intention of the amended Letters Patent was to take away the right of appeal which was held by this Court and the Madras High Court to have existed in cases of a judgment of a Judge sitting singly, made in a Civil Revision case. I cannot hold that reference to Section 107 of the Government of, India Act in Clause 15 of the Letters Patent cannot be read as reference to Section 224 of the Government of India Act, 1935. If this is so, then the repeal of the Government of India Act, 1935, by Article 395 of the Constitution and the substitution of Article 227 of the Constitution for Section 224 of the Government of India Act, 1935, and consequently of Section 107 of the Government of India Act, 1915, naturally follows. The question whether Section 8 of the General Clauses Act applies to the interpretation of Clause 15 of the Letters Patent is a matter which is now covered by the decision of the Special Bench in the case of --' : AIR1953Cal433 (D)', to which I have already referred. I may point out that the applicability of the General Clauses Act to Clause 15 of the Letters Patent was left undecided by a Bench of this Court in the case of --' AIR 1914 Cal 388(2) (B). In the case of -- 'Sadar Ali v. Doliluddin', : AIR1928Cal640 , a Special Bench of this Court proceeded on general principles akin to those provided for in the General Clauses Act in interpreting the amended Letters Patent. The case of -- : AIR1928Cal640 , decided a point which was raised after the amendment of the Letters Patent in 1927, viz. whether the amendment affected pending second appeals. The Special Bench was of the opinion that on general principles the amendment had no retrospective operation. Whether we apply Section 8 of the General Clauses Act or proceed on general principles underlying the Letters Patent, in my opinion, the legitimate inference to draw is to hold that the relevant expression in Clause 15 of the Letters Patent excludes a judgment pronounced by a single Judge in exercise of the powers of revision or in exercise of thepowers of superintendence under Article 227 of the Constitution. In my opinion, the preliminary objection must prevail.

12. We have also considered the merits of the contention raised before us, Mr. Roy discussed the scope of the powers of revision under Section 115, Civil P. C. It is not necessary to deal with the interesting argument addressed to us by Mr. Roy because it is common ground that no appeal lies under Clause 15 of the Letters Patent against an order made by a Judge sitting singly in exercise of. the powers of revision under Section 115, Civil P. C. The only question which we have to consider is whether a judgment of a Judge sitting singly made in exercise of the powers of superintendence under Article 227 of the Constitution is appealable under Clause 15 of the Letters Patent and whether in the present case the judgment of Chunder J. can be said, to be one where the learned Judge failed to exercise his powers conferred, on this Court by Article 227 of the Constitution. The question which came up for consideration before Chunder J. related to two matters, namely, whether the test of bona fide requirement has to be judged by a reference to the provisions of the Rent Control Act, 1948, or the Rent Control Act, 1950, and whether the words 'the requirement of the landlords' mean the 'requirement of the landlords as a body or of some of them'. A decision on such a question by Chunder J. affirming the views of the Courts below is not such a matter as, in my opinion, calls for interference by this Court under Article 227 of the Constitution. In the case of --'Narendra Nath Shasmal v. Binode Behary Dey', : AIR1951Cal138 (F), a Bench of this Court was of the opinion that Article 227 of the Constitution allows the High Court to interfere in special cases but the interference would, however, be rare and only in cases where justice clearly demands such interference. As a Court of appeal it is difficult for us to say that Chunder J. did not properly exercise his discretionary powers of interference under Article 227 of the Constitution. The contentions raised on behalf of the appellant therefore fail.

13. In the result this appeal fails and is dismissed, but in the circumstances of this case there will be no order for costs.

14. Debabrata Mookerjee J.

I agree.


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