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1949 DIGILAW 527 (CAL)

Khagendra Nath Pal v. Nilmani Datta

1949-11-15

body1949
JUDGMENT Sen, J. - This Rule has been obtained by the tenant, who has applied before the Court of Small Causes, Calcutta, u/s 18 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, for varying or rescinding an order passed in a proceeding u/s 41 of the Presidency Small Cause Court Act, instituted by the landlord for the recovery of possession of certain premises occupied by the Petitioner. The application was allowed and an order for ejectment was passed. The tenant, thereafter, brought this application u/s 18 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, for rescinding the order of ejectment. That application was dismissed and the tenant appealed to the Full Bench of the Court of Small Causes, Calcutta, the appeal purporting to be one u/s 16(2) of the aforesaid Act of 1948. The Bench before whom the appeal was filed held that the appeal was not maintainable and refused to entertain it. Against this order the present Rule has been obtained. 2. The only point for decision in this Rule is whether the Bench of the Court of Small Causes, Calcutta, made any error regarding jurisdiction in refusing to entertain the appeal. 3. It is contended on behalf of the Petitioner that the order rejecting an application u/s 18 of the aforesaid Act is an order passed in a proceeding by a landlord against a tenant for possession of the tenanted property and that, therefore, it is an order which is appealable by virtue of the provisions of Section 16(5) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948. On behalf of the opposite party it is contended that an order refusing an application u/s 18 of the above-mentioned Act is not appealable and does not fall within the purview of Sub-section (2) of Section 16, as it is not a decree. It is argued that an application u/s 18 is in the nature of a review and that, if an application for review is rejected, the order rejecting it is not appealable. Reference is made to the CPC wherein it is laid down that an application refusing a review is not appealable, whereas an application granting it is. On the other hand, learned advocate for the Petitioner argues that reference to the CPC is not permissible in construing the provisions of this Act, inasmuch as the CPC does not apply. Reference is made to the CPC wherein it is laid down that an application refusing a review is not appealable, whereas an application granting it is. On the other hand, learned advocate for the Petitioner argues that reference to the CPC is not permissible in construing the provisions of this Act, inasmuch as the CPC does not apply. Under the Code of Civil Procedure, there is express provision made that an order granting a review under Order XLVII is appealable and therefore, an order rejecting an application for review necessarily becomes non appealable, it not being a decree. He contends that this question should be decided solely with reference to the provisions of Section 16 and Section 18 of the aforesaid Act. 4. I am of opinion that this question should be decided solely with reference to the words of these two sections and it will serve no useful purpose to indulge in analogies. Section 16(2) says that a proceeding by a landlord against a tenant for possession of any premises which the Court of Small Causes, Calcutta, is competent to try shall be instituted in the Court of Small Causes. Sub-section (2) of Section 16 says that an order of the Court of Small Causes, Calcutta, in a proceeding referred to in Sub-section (1) shall be appealable. Can it be said that an order rejecting an application u/s 18 is an order in a proceeding by a landlord against a tenant for possession of a premises occupied by him? In my opinion, Sub-section (2) of Section 16 of the aforesaid Act does not contemplate an order passed u/s 18. It is true that the order is related to a proceeding for ejectment referred to in Section 16(7), but it is not an order passed in those proceedings. The proceedings referred to in Section 16(7) are proceedings u/s 41 of the Presidency Small Cause Courts Act. The application u/s 18, in my opinion, is quite a distinct application and an order passed in that application cannot be construed to mean an order passed in a proceeding by a landlord against a tenant for possession. I am of opinion that no appeal lies from an order passed u/s 18. 5. I, accordingly, discharge this Rule. There will be no order for costs.