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Sheikh Jogai Didhur Fakir Vs. Barada Kanta Bose - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in55Ind.Cas.653
AppellantSheikh Jogai Didhur Fakir
RespondentBarada Kanta Bose
Cases Referred and Kalipada (Gangadhar) Karmakar v. Shekhar Baiani Dasya
Excerpt:
bengal tenancy act (viii of 1885), section 153(1)(b) - decree or order by officer specially empowered--appeal, whether lies--revision-appeal erroneously entertained--high court, power of, to vacate order of appellate court. - .....that he could take, namely, filing an application by way of revision. apart from that the amount in suit is so small that i do not think i should be justified in the circumstances in sending the case back to the lower court to treat the memorandum of appeal as an application for revision.3. the appeal to this court is dismissed without costs. the rule is made absolute with costs in all the courts. in this court i assess the hearing fee at one gold mohur.
Judgment:

Beachcroft, J.

1. In these proceedings the plaintiff, who is the respondent before this Court, sued to recover Rs. 10 as the price of produce rent. The Munsif dismissed the suit, holding that the relationship of landlord and tenant did not exist. The matter was taken on appeal and the Subordinate Judge held that the relationship did exist and gave the plaintiff a decree for the amount admitted by the defendant, namely, a sum of Rs. 3. In the present appeal an objection is raised on behalf of the respondent that under Section 153 of the Bengal Tenancy Act the appeal by the tenant is incompetent What is sauce for the goose is sauce for the gander, and the learned Vakil for the appellant answers that if the appeal to this Court is incompetent so was the appeal to the lower Appellate Court, because the Munsif was especially empowered under Section 153 (1)(b) to exercise final jurisdiction in the suit. This being the state of things, it is obvious that there was no appeal to the lower Appellate Court and that that Court's order ought not to be allowed to stand. When the learned Vakil filed the memorandum of appeal, he also filed an application for revision and the question is, whether an appeal, lies to this Court or whether his client is entitled to relief by way of revision. There are authorities of this Court both ways. In the latest case, to which I have been referred, namely, Gangadhar Karmakar v Shekharbasini Dasya 35 Ind. Cas. 348 : 24 C.L.J. 235 : 20 C.W.N. 967, Mookerjee, J., held that in such a case as this an appeal would lie to this Court against the decision of the lower Appellate Court. On tine Other band, there are decisions in Bhagabati Bewa v Nanda Kumar Chuckerbutty 12 C.W.N. 835 and Kalipada (Gangadhar) Karmakar v. Shekhar Baiani Dasya 31 Ind. Cas. 812 : 23 C.L.J. 235 in which the view was taken by some of the learned Judges of this Court that there is no appeal in such case. I do not think it necessary for me to express my individual opinion in this matter. It is sufficient to say that the balance of authority apparently being on the side that there is not an appeal to this Court, I ought to follow the balance of authority and hold that no appeal lies and that the remedy is by way of revision. In that view, on the application for revision, I set aside the decision of the lower Appellate Court and restore the judgment and decree of the Munsif.

2. It has been suggested on behalf of the respondent that the proper course to take would be to send the matter back to the learned Subordinate Judge in order that the memorandum of appeal to him may be treated as an application for revision under Section 153 of the Bengal Tenancy Act. The ground on which this application is made is that when the matter went before the lower Appellate Court, the objection raised there was that no appeal lay not by reason of Section 153 of the Bengal Tenancy Act but because the suit was of the nature of a Small Cause Court case. It seems to me that the respondent here is entirely responsible. The appeal was filed by him and be ought to have taken the remedy by way of revision at once. I do not see why I should accede to his application that because the respondent in that Court pleaded unsound objections to the hearing of the appeal, he should be exonerated for filing an appeal which was itself incompetent and for not taking the line that he could take, namely, filing an application by way of revision. Apart from that the amount in suit is so small that I do not think I should be justified in the circumstances in sending the case back to the lower Court to treat the memorandum of appeal as an application for revision.

3. The appeal to this Court is dismissed without costs. The Rule is made absolute with costs in all the Courts. In this Court I assess the hearing fee at one gold mohur.


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