Anil Kumar Mukherjee v. Malin Kumar Mazumdar — 1960 DIGILAW 158 (CAL)

JUDGMENT 1. THIS Rule under Article 227 of the Constitution of India came up before Mr. Justice S. K. Sen sitting singly and His Lordship by an order dated 14th January, 1960 referred the case to Division Bench for disposal as he felt that it was desirable that the point involved should be set at rest by a decision of Division Bench in view of two conflicting decisions of two learned Judges of this Court sitting singly, one by Mr. Justice Bachawat reported in (1) 1959 C. L. J. page 117 and the other unreported decision (2) of my learned brother Mr. Justice Banerjee. 2. THE point is about interpretation of the words 'final order' occurring in section 39 of the West Bengal Premises Tenancy Act, 1956 in the background of sub-section (3) of section 16 of that Act for deciding the maintainability of an appeal. In the present case the point arises in this way: The disputed premises is a ground-floor shop-room in premises No. 139/3, Russa Road, Calcutta, since named Shamaprosad Mukherjee Road. It belonged to a partnership firm named Estate Amulya Dhan Mullick and Krishna Dhan Mullick, and under that firm Dr. Anil Kumar Mukherjee is a tenant in respect of that room. It is common ground of both the parties that in respect of front portion of the said room, Malin Kumar Mazumder was in occupation. Malin Kumar Mazumder's own case is that at first the front portion was sub-let to him at a monthly rent of Rs. 30/- and later on the whole room was sub-let to him at a monthly rent of Rs. 75/- and he claimed to be the sub-tenant under Dr. Anil Kumar Mukherjee and gave notice to his sub-tenancy to the landlord under section 16 (2) of the West Bengal Premises Act. Present application under section 16 (3) of the Act has been made by Malin Kumar Mazumder before the Rent Controller, Calcutta, within two months of the date of issue of notice by him and he has made both the landlord and the tenant parties. The landlord appeared before the Rent Controller and denied that there was consent by him to the sub-letting either in writing or orally. The tenant Dr. Anil Kumar Mukherjee contended before the Rent Controller that he had not sub-let any portion of the room to Malin Kumar Mazumder. The landlord appeared before the Rent Controller and denied that there was consent by him to the sub-letting either in writing or orally. The tenant Dr. Anil Kumar Mukherjee contended before the Rent Controller that he had not sub-let any portion of the room to Malin Kumar Mazumder. His case was that Malin Kumar Mazumder was a licensee in respect of the front portion of the room at first at the rent of Rs. 30/- and later on, at the rate of Rs. 75/- per month. 3. THE Rent Controller by an order dated 8th March, 1957 after deciding several contentions raised on behalf of the tenant held that Malin Kumar Mazumder was entitled to reliefs provided by section 16, sub-section (3) of the Act in respect of the front portion of the room and in the same order held that for the purpose of fixation of rent an inspection by the Inspector as prayed for was necessary and directed the Inspector to do so as mentioned in the order and to complete the inspection and submit report with full details on or before 8th of April, 1957. 4. AGAINST this order dated 8th March, 1957 an appeal was preferred by the tenant Dr. Anil Kumar Mukherjee. At the hearing of the appeal a preliminary objection was taken by the respondent that the appeal was incompetent as the order appealed against was not the "final order" as contemplated by section 29 of the Act. The learned Subordinate Judge who heard the appeal gave effect to the preliminary objection and held that the order appealed from was not a "final order" within the meaning of section 29 and he accordingly dismissed the appeal as incompetent. Against this order dismissing the appeal, the present Rule has been obtained and the only point for decision in the Rule is whether the learned Subordinate Judge's order is correct or not. Mr. Ashutosh Ganguly, appearing in support of the Rule, has contended before us that the order of the Rent Controller having decided a cardinal matter in the case it must be considered to be a "final order" and he relied on a decision reported in (1) 1959 C. L. J. 117 in which this very point arose before Mr. Justice Bachawat sitting singly and His Lordship held in favour of the proposition that Mr. Ganguly has urged before us. Justice Bachawat sitting singly and His Lordship held in favour of the proposition that Mr. Ganguly has urged before us. This decision was pronounced on 11th of September, 1958. As I have already mentioned, on the same point there is another decision (2) of my learned brother Banerjee, J., holding that the order of the nature we are concerned with, is not a "final order" and no appeal lies against ii under section 29 of the Act. This decision of Banerjee, J. was in Civil Revision Case No 560 of 1957 and was given on 17th of July, 1957. but has not been so far as I am aware, reported anywhere. Nor was it cited before Bachawat, J. and his Lordship therefore, had no occasion to consider this earlier decision. However that may be, the two decisions are directly in conflict and it is necessary for us to examine both with care. 5. IN the case before Mr. Justice Bachawat the nature of the order and the stage of the proceedings were exactly similar to what they are in the case before us. In that case an order dated 28th of December, 1956 held that the petitioner was a sub-tenant in respect of disputed premises and that the ground-floor privy and filtered water tap were outside the sub-tenancy and that the petitioner was entitled to reliefs provided in section 16 (3). But he did not finally dispose of the application and held that rents of tenant and sub-tenant had to be fixed and an Inspector's report was necessary. He fixed 24th January, 1957 for submission of Inspector's report. An appeal was filed by the sub-tenant against the order dated 28th December, 1956 and it was dismissed on the view that it was incompetent. 6. IN deciding whether the appeal against that order was competent, Mr. Justice Bachawat while taking note of the fact that the order did not finally dispose of the case was led to take the view he did, because in his Lordship's view when "one of the cardinal matters" in controversy between the parties is conclusively determined by am adjudication, the order is a "final order". Bachawat, J. therefore, held that the appeal was competent. With great respect to his Lordship, Mr. Justice Bachawat that is a view which I feel unable to agree with. I shall presently give my reasons. Bachawat, J. therefore, held that the appeal was competent. With great respect to his Lordship, Mr. Justice Bachawat that is a view which I feel unable to agree with. I shall presently give my reasons. In the case before Banerjee, J., again the nature of the order was similar to the one we are concerned with in the present case, and for the matter of that, also to the one in the case before Bachawat, J. But in one respect the case before Banerjee, J. had its own peculiarity. In that case the order appealed from had been passed on 16th August, 1956 and the date for submission of Inspector's report was fixed 17th September, 1956. An appeal against the order dated 16th August, 1956 was filed on 10th September, 1956 and the appeal was heard on 28th January, 1957 and the appeal was allowed by an order of that date. But it appears that soon after the appeal had been filed and before the appeal was heard and disposed of an order finally disposing of the application in terms of section 16 (3) was passed by the Rent Controller on 19th September, 1956. Therefore, when the appeal against the order dated 16th Augusts 1956 came up for hearing, the Controller had by an order declared the rights of the parties in terms of section 16 (3) and the case before him came to an end. This feature was not availing in the case before Bachawat, J. and does not avail in the case before us. I may also mention that in the case before Banerjee, J. the tenant of the first decree appealed as in the case before us. That appeal was allowed and sub-tenant's application was dismissed. The Rule in this Court was obtained by the sub-tenant and a point was taken for the first time in this court on behalf of the sub-tenant that the appeal that had succeeded was incompetent and Banerjee. J. upheld that contention on the view that the appeal against the order of 16th August, 1956 was incompetent and while setting aside the appellate order his Lordship observed that if an appeal be taken against the order dated 19th September, 1957. It would be a matter for the appellate court if the delay in presentation of such appeal should be condoned. 7. It would be a matter for the appellate court if the delay in presentation of such appeal should be condoned. 7. THE reason that weighed with Banerjee, J. was the view that the order appealed from did not declare that the interest of the tenant of the first decree would cease from a particular date and all that was done by that order was to arrive at a conclusion whether the applicant was a sub-tenant at all and whether he was entitled to the reliefs under section 16 (3) of the Act. With this view I respectfully agree and I may say that this view commends itself to me as the correct, view of what section 16 of the Act requires and what section 29 provides. Section 16 of the West Bengal Premises Tenancy Act, 1956 deals with the subject not only of "notification of creation and termination of sub-tenancies" as the marginal note of that section mentions but also the subject of cessation of tenant's interest in respect of portion of premises sublet by him and creation of sub-tenant into direct tenant in respect of such portion by declaration in the order of the Rent Controller. This latter subject is an integral part of section 16 by its third sub-section, although the marginal note does not mention it. The crux of an application under sub-section (3) of section 16 is this subject which "the Controller shall by order declare". 8. TRUE structure of section 16, to my mind, is that sub-section (1) deals with sub-tenants brought in after the commencement of the Act, and with previous consent of the landlord in writing. Sub-section (2) deals with subtenants brought in before the commencement of the Act, with or without the consent of the landlord. Use of the word 'consent' simpliciter in contradistinction to the language employed in sub-section (1) clearly indicates that such consent may be oral or in writing. The opening words of sub-section (3) clearly indicates: (1) It must be a case mentioned in sub-section (2), that is the sub-tenancy was before the commencement of the Act ; (2) There was no consent in writing, and (3) Landlord denies that he gave oral consent. The opening words of sub-section (3) clearly indicates: (1) It must be a case mentioned in sub-section (2), that is the sub-tenancy was before the commencement of the Act ; (2) There was no consent in writing, and (3) Landlord denies that he gave oral consent. Each of these three matters therefore, must be considered to be a cardinal matter, because if the finding is in the negative on any of these matters then it is not within this sub-section and the application must fail. 9. NEXT part of the sub-section provides limitation for making the application and starting point of the period mentioned is either receipt or issue of notice of sub-letting. Therefore, there must be a notice given in fact either by the tenant or by the subtenant or by both and the question whether or not a notice has been given is another and fourth cardinal matter, because if no notice has been given either by the tenant or by sub-tenant, then the sub-section (3) is not applicable at all. To make the sub-section applicable a notice under sub-section (2), be it by the tenant or be it by the subtenant, there must be; otherwise it is not a case mentioned in sub-section (2) and therefore, not within sub-section (3). From this also follows that the Controller must come to a finding if the application has been made within the period mentioned in sub-section (3). Therefore, limitation is another, fifth cardinal matter in the case. 10. THEN comes the operative part or sub-section (3) which requires that upon an application "the Controller shall. . . . . . . . by order declare": (1) That the tenant's interest shall cease in so much of the premises as has been sub-let; (2) That the subtenant shall become a tenant directly under the landlord. By these previsions true character of such a declaration must be a combination in the same order of the two components: (1) cessation of the tenant's interest from that portion of the premises and (2) creation of the subtenant as a direct tenant under the landlord in respect of that portion of the premises already in his occupation Obviously, therefore, the extent of sub-tenancy is the sixth cardinal matter without ascertaining which the declaration contemplated cannot be made. Both for cessation of tenant's interest and creation of now direct tenancy in favour of the sub-tenant, determination of the portion of the premises in respect of which the order will operate is a cardinal matter. Sub-section (3) next provides that the Controller shall also fix the rent payable by the tenant and sub-tenant to the landlord. This fixation of rent is the seventh cardinal matter without which the new relationship of landlord and tenant cannot take effect. Only when the rent has been fixed can the order for declaration be made and the use of the word "also" in this part of the sub-section, to my mind, clearly indicates that fixation of rent must be made by the same order by which the Rent Controller shall declare the new relationship. 11. LASTLY, the sub-section enjoins that the Controller shall fix the rents payable from the date of the order. He cannot post-date or ante-date the effect of his order and the rent fixed by him must be payable from "the date" of "the order." This clearly shows, in my view, that only one order is contemplated by which declaration of the new relationship is established and also the rent payable is fixed. Can there be establishment of relationship of landlord and tenant yet rent made payable from a latter date? Or can rent be payable from any date earlier than the establishment of that relationship ? 12. WHEN a tenancy is created by contract, reservation of rent is not essential because acceptance by the lease by the tenant may be sufficient consideration for the contract. But in the nature of the declaration by order of the Controller under section 16 (3) rent is an essential element both for relieving the tenant of the first decree of his liability to the extent of the premises from which he is divested and for enabling the sub-tenant to pay it direct to the landlord to whom he has been made a direct tenant by the order of the Controller. Therefore, in my opinion, answer to either of the two questions posed above must be in the negative. Therefore, in my opinion, answer to either of the two questions posed above must be in the negative. Moreover, the use of the article "the" in relation to both date and order makes it abundantly clear that all that is enjoined by sub-section (3) must be done by one and the same order-declaration of direct tenancy and fixation of rent both must be made by that single order simultaneously. As I have said above in doing so the Controller will have to make his decision and arrive at his findings on several cardinal matters. Sub-section (3) within itself mentions expressly and by necessary implication at least seven such. They are: (1) The sub-tenancy was before the commencement of the Act, (2) There was no consent by landlord in writing, (3) Landlord denied that he gave oral consent, (4) In fact, a notice under sub-section (2), either by the tenant or by the sub-tenant or both, had been given, (5) The application has been made within the period from the receipt or issue of the notice mentioned. (6) The extent of the tenancy in respect of which the sub-tenant will be declared to be direct tenant, and (7) The rent payable by the tenant and sub-tenant to the landlord. It is true that sixth and seventh of these are only consequential to the positive findings on the first five, but a negative finding on any of the first five must result in refusal of the application, even though findings on other four may be positive. 13. I do not by any means say that these seven can be the only cardinal matters in every case under section 16 (3). In any particular case in addition to these seven there may be more matters in their nature cardinal to that case. 14. IT is quite possible, may, very probable that all these can not be decided at the same stage of the proceeding or on the same date or by one order and it is a near contemplation indeed that in a particular case, findings on each of the cardinal point have been arrived at by the Controller by different orders on different dates. In such a case can each of those orders be taken to be "the order" from the date of which rents payable shall take effect, only because each order decided a cardinal matter in controversy between the parties ? To my mind, to hold so, would be to reduce the provision of section 16 particularly the sub-section (3) to something un-understandable. I, therefore, hold in agreement with what Banerjee, J. in his judgment implies that "the order" in section 16 (3) means the particular order by which the Controller finally disposed of the application. That is the order by which the formal declaration is made by the Controller or the application is dismissed on refusal to make the declaration and not the intermediate orders by which the Controller might have arrived at his finding on one or more or even all the cardinal matters in controversy between the parties. The form of the order has been indicated by the legislature by use of the words "controller shall. . . . . by order declare". The order must be in the form of a declaration and not a finding merely and it shall also fix rents payable. Only when the declaration has been made in terms of section 16 (3) that the Controller would have passed "the order" under that sub-section. For the matter of that an order refusing to make a declaration and dismissing the application will also be a final order. 15. REGARDING the meaning to be attributed to the words "final order" in section 29 of the Act, learned Advocate Mr. Ganguly rightly pointed out that the term has not been defined either in this Act or in other Acts of the legislature. Therefore, true meaning of those words will have to be ascertained by reference to the intention of the legislature in enacting section 29 and in doing so it would be pertinent to take into consideration the plain dictionary meaning of those words and also the meaning attributed to those in judicial decisions on other Acts in which those words have been used. 16. PLAIN meaning of the word "final" is, the last or conclusive and by that meaning the test of finality would be whether the order disposed of the rights of the parties conclusively, so far as that court is concerned. 16. PLAIN meaning of the word "final" is, the last or conclusive and by that meaning the test of finality would be whether the order disposed of the rights of the parties conclusively, so far as that court is concerned. The right involved in section 16 (3) is the right to get the declaration and not merely an intermediate finding on any important or even vital issue in the case. Keeping in view the seven cardinal matters arising on the application under section 16 (3) it is quite possible that first five of those have been decided by the Controller and sixth and seventh are yet to be decided and the Controller is still on the case and he has taken steps to obtain materials and evidence to enable him to decide those last two. In fact, in the case before us as well as in those before Bachawat, J. and Banerjee, J., findings were arrived at on first six of the points and only the seventh remained to be decided. Yet until the rent has been decided also the Controller was not enabled to make the order incorporating the declaration envisaged in section 16 (3). That being so, the order of the Controller that was appealed against does not satisfy the test of the finality mentioned above. On this point Mr. Ganguly also referred to Article 132 of the Constitution of India where the words "final order" occur. Mr. Ganguly really wanted to take the benefit of the Explanation to that Article of the Constitution and in effect contended that we should take that Explanation to be the definition of "final order" for the purpose of section 29 of the West Bengal Premises Tenancy Act, 1956 also. 17. IF Mr. Ganguly was right in that contention, then certainly, he succeeded in establishing that "final order" includes "an order deciding an issue which if decided in favour of the appellant would be sufficient for final disposal of the case"-or in the language appearing in the judgment of Bachawat, J., "one of the cardinal matters". Suffice it to say that the Explanation does not help Mr. Ganguly at all because in its own terms it is limited "for the purpose of this Article" and is not available to interpret even to succeeding Articles of the Constitution, namely, Articles 133 and 134 wherein also the words "final order" occur. Suffice it to say that the Explanation does not help Mr. Ganguly at all because in its own terms it is limited "for the purpose of this Article" and is not available to interpret even to succeeding Articles of the Constitution, namely, Articles 133 and 134 wherein also the words "final order" occur. Correctly looked at, in my view, that Explanation goes very much against the contention of Mr. Ganguly. The fact that Explanation was necessary clearly shows that ordinarily the words "final order" do not bear that extended meaning. The object of the Explanation was to give that extended meaning to the words "final order" only in cases involving constitutional questions which are dealt with by Article 132 and the Explanation was necessary in that Article to override the decision in Kuppuswami's case (3) reported in A. I. R. 1949 Federal Court 1 to prevent it from applying in cases involving constitutional question. Although that decision will not apply in cases coming under Article 132, it certainly remains the authoritative decision on true meaning of the words "final order" in Article 134 which was the subject matter of interpretation in that decision of the Federal Court. The same meaning has been accepted for those words "final order" in the decision of the Federal Court in the case of Md. Amin Brothers reported in (4) A.I.R. 1950 Federal Court 77, which is a decision on Article 133 of the Constitution. Mr. Ganguly relied on a Privy Council decision reported in (5) 18 I. A. 6 and also on a decision of this Court reported in (6) 25 C. W. N. 896 but those decisions have no application at all because those decisions were based on the different language that occur in section 595 of the old Civil Procedure Code and section 109 of the Code of Civil Procedure. 1908 at the time of that decision as has been explained by Chief Justice Chakravartti in the decision of West Jamuria Coal Company's case (7) reported in 58 C. W. N. 31. 18. THEREFORE, true meaning of "final order" in Article 133 and section 109, C. P. Code is firmly established by the decision I have already referred to of the Federal Court of India in Md. Amin Brothers' case (4) where the judgment was delivered by B. K. Mukherjea, J. and there is no going back upon it. 18. THEREFORE, true meaning of "final order" in Article 133 and section 109, C. P. Code is firmly established by the decision I have already referred to of the Federal Court of India in Md. Amin Brothers' case (4) where the judgment was delivered by B. K. Mukherjea, J. and there is no going back upon it. Even in a recent decision Lahiri, C. J. has adhered to that meaning of the words "final order" in his judgment in the case (8) reported in 64 C. W. N. 52. The words "final order" therefore, mean "an order which finally determines the point in dispute and brings the case to an end." Now the question is, does it mean anything else when the phrase is used in section 29 of the West Bengal Premises Tenancy Act, 1956 ? I do not at all see why it should, and I am definitely of the view that in section 29 of the Act it means the same type of the order and not the other. If that were not so, then we will have to concede that from each of the orders recording a finding there shall be an appeal under section 29 of the Act. Nothing more in my view can be further from the intention of the legislature when it provided in section 16 (3) "the order" and in section 29 "a final order". This is put beyond any doubt when we remember that the provision of sub-section (3) of section 29 of the Act attracts to appeals under that section the provisions of C. P. Code. By section 105 of the Code of Civil Procedure "any error, defect or irregularity in any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal" when there is an appeal from the "final order". Though section 105, C. P. Code refers only to decree it has been held that it applies to appeals against orders as well. I may refer to a decision of Madras High Court Swaminatha v. Narayana (9) reported in A. I. R. 1936 Madras 936. In this Court also P. N. Mookerjee, J. has taken the same view in a decision (10) noted in A. I. R. 1955 N. U. C. 1212 [also fully reported in 58 C. W. N. 869-Ed. I may refer to a decision of Madras High Court Swaminatha v. Narayana (9) reported in A. I. R. 1936 Madras 936. In this Court also P. N. Mookerjee, J. has taken the same view in a decision (10) noted in A. I. R. 1955 N. U. C. 1212 [also fully reported in 58 C. W. N. 869-Ed. ] and in taking that view his Lordship relied on the Privy Council decision of Adaikappa's case (11) reported in A. I R. 1948 Privy Council 12. 19. THEREFORE, the right of the party against whom a finding may have been arrived at on any of the cardinal matters by orders of dates prior to the order making the declaration will not at all be impaired or prejudiced. Such a party is able to take grounds against those findings in an appeal against the final order. If the final order has been made in his favour even then without an appeal being taken by his adversary he could attack those findings by way of cross-objection in Order 41, rule 22. In my mind, such was the intention of the legislature in providing under subsection (3) in section 29 of the Act, that provisions of Code of Civil Procedure shall apply in the matter of appeals under section 29. 20. ON these reasons I hold that the case reported in (1) 1959 C. L. J. 117 was not correctly decided. In that case before Bachawat, J. there was no appearance for the opposite party and his Lordship's attention was not drawn to the aspects I have discussed above, be there has not been consideration on those points. In my view, the decision (2) of my learned brother Banerjee, J. in Civil Revision No. 560 of 1956 embodies the correct view as to the meaning of "final order" in section 29 in the background of section 16, sub-section (3) of the Act. To sum up, in my view, (i) section 16 (3) contemplates one order making a declaration and also fixing rents payable, or refusing to make a declaration and dismissing the application. To sum up, in my view, (i) section 16 (3) contemplates one order making a declaration and also fixing rents payable, or refusing to make a declaration and dismissing the application. That is a final order which is appealable under section 29 of the Act; (ii) Orders recording findings of the Controller on points in dispute between the parties even on cardinal matters that go to the root of these, are not "the order" contemplated by section 16 (3) and none of those orders is appealable under section 29 of the Act until as a result of those findings an order, bringing the case to an end either way has been made by the Controller; (iii) In an appeal against the ''final order" grounds against any or all the findings arrived at by orders previous to the final order can be taken by the appellant and by the respondent in the appeal by way of cross-objection; (iv) In section 29 of the Act; "final order" means the order making the declaration and also fixing rents payable, or refusing to make a declaration and dismissing the application, as the case may be, bringing the case to an end. 21. IN the case before us, the order appealed from was only an order recording the findings on some of the points in controversy between the parties and no order making a declaration has yet been made. The case before the Controller has not been finally disposed of. The decision of the appellate court that the appeal was incompetent, is, in my view, the correct decision. In that view of the matter I would discharge the Rule. In the circumstances of the case 1 would make no order as to costs. BANERJEE, J.- I agree with the order made by My Lord. 22. THE expression "filial order" as used in section 29 of the West Bengal Premises Tenancy Act, 1956, has not been defined in the Act. It is, therefore, necessary to adopt the ordinary and the common sense meaning of the expression, without more. BANERJEE, J.- I agree with the order made by My Lord. 22. THE expression "filial order" as used in section 29 of the West Bengal Premises Tenancy Act, 1956, has not been defined in the Act. It is, therefore, necessary to adopt the ordinary and the common sense meaning of the expression, without more. In deciding a point under section 109 (a) of the Code of Civil Procedure, which, prior to the passing of the Adaptation of the Laws Order, 1950, provided for an appeal to His (Britanic) Majesty in Council from any judgment, decree or final order passed on appeal by a High Court, if the same was certified to be a fit one for such appeal, sir George Lowndes observed in the case of Abdul Rahman v. D. K. Cassim and Sons (12) (L,r. 60 I. A. 76) as follows "lord Cave in delivering the judgment of the Board (meaning the judgment in Ram Chand Manjimal's case, L. R. 47 I. A. 124 laid down, as the result of an examination of certain cases decided in the English Courts, that the test of finality is whether the order 'finally disposes of the rights of the parties', and he held that the order then under appeal did not finally dispose of those rights, It should be noted that the Appellate Court in India was of opinion that the order it had made 'went to the root of the suit, namely, the jurisdiction of the court to entertain it,' and it was for this reason that the order was thought to be final and the certificate granted. But this is not sufficient. The finality must be a finality in relation to the suit. If, after the order, the suit is still a live suit in which the rights of the parties have still to be determined, no appeal lies against it under section 109 (a) of the Code. " 23. IN my opinion, the same observations, with necessary adaptations, should apply to the expression 'final order' in section 29 of the West Bengal Premises Tenancy Act. No order under the said Act is to be treated as the final order unless the order had the effect of finally disposing of the rights of the parties. 24. I need now consider the case (1) reported in (1959) C. L. J. 117 (Asutosh Chakraborty v. Sm. No order under the said Act is to be treated as the final order unless the order had the effect of finally disposing of the rights of the parties. 24. I need now consider the case (1) reported in (1959) C. L. J. 117 (Asutosh Chakraborty v. Sm. Rani Sundari Devi), in which Bachawat, J. laid down the following test of finality of an order under sec. 16 (3) of the West Bengal Premises Tenancy Act: "for the purpose of disposing of the application under section 16 (3) of the Act, it is essential for the Controller to determine if there is a subletting and if so how much of the premises have been sub-let. The dispute as to how much of the premises has been sublet is one of the cardinal matters in controversy between the parties. The learned Controller by his order has determined that matter. He has held that petitioner is not entitled to pay rent in respect of the ground floor privy and filtered water tap. He has by his adjudication conclusively determined the rights of the parties with regard to one of the cardinal matters in controversy in the application. The impugned order of the Controller was, therefore, a final order within the meaning of section 29 of the Act." The determination of the cardinal point test was at first applied by Lord Hobhouse in the case of Rahimbhoy Habibhoy v. Turner (5) (L. R. 18 I. A. 6) so as to find out whether a decree was a final decree, within the meaning of section 595 of the Code of Civil Procedure, 1882 (corresponding to section 109 of the present Code). In that case his Lordship observed:- "the form of the decree is exactly as if it affirmed the liability of the defendant to pay something on each of these claims, if only the arithmetical result of the account should be worked out against him. Now that question of liability was the sole question in dispute at the hearing of the cause, and is the cardinal point of the suit. The arithmetical result is only a consequence of the liability. The real question in issue was the liability, and that has been determined by this decree against the defendant in such a way that in this suit it is final". 25. The arithmetical result is only a consequence of the liability. The real question in issue was the liability, and that has been determined by this decree against the defendant in such a way that in this suit it is final". 25. LORD Hobhouse again applied the same test in deciding an application for special leave to appeal in the case of Syed Muzhar Husein v. Bodha Bibi (13) (L. R. 22 I. A. 1) in which, following the decision in Rahimbhoy's case (Supra) his Lordship observed: "in this case the will of Ibn Ali is the cardinal point of the suit; and as after the decision of the High Court that can never be disputed again, their order is final, notwithstanding that there may be subordinate inquiries to make. " 26. BOTH the aforesaid two decisions were noticed by Sir George Lowndes in Abdul Rahman's case (supra) and distinguished, inter alia, on the ground that they were decided with reference to the Civil Procedure Code of 1882, in which the wordings of the relevant sections differed materially from that of the Code of 1908. I am not, however, concerned with that distinction, because I have to consider the meaning of the expression "final order" in a different context and in relation to a different Act. The only distinction that I need notice, in the present context, is that in both the decisions in (5) L. R., 18 I. A., 6 and in (13) L. R. 22 I. A. 1, Lord Hobhouse used the expression that the order or decree in question determined "the cardinal point in the suit" and not the expression, as used by Bachawat, J., namely, "determined the rights of the parties with regard to one of the cardinal matters in controversy. " I do not find any authority for the proposition that the determination of any one of the cardinal points in controversy will invest the order with the dignity of final order. 27. " I do not find any authority for the proposition that the determination of any one of the cardinal points in controversy will invest the order with the dignity of final order. 27. IN my opinion, that order under section 16 (3) of the West Bengal Premises Tenancy Act is the final order which either dismisses the application or which declares "that the tenant's interest in so much of the premises as has been sub-let shall cease and that the sub-tenant shall become a tenant directly under the landlord from the date of the order" and also fixes "the rents payable by the tenants and such sub-tenant to the landlord from the date of the order". If such an order is made in two stages, namely, at first the declaration is made and then the fixation of rent, the order does not become the final order until the last stage is reached. This is so, because until the rent fixation is made, the proceeding under section 16 (3) remains a live proceeding in which the rights of the parties have still to be determined and the proceeding is not at an end. The making of the declaration is, no doubt, the determination of one of the cardinal points in dispute but that order alone does not finally dispose of the rights of the parties and hence does not become the final order. In the result, I do not feel inclined to depart from the view I took in (2) Civil Revision Case No. 560 of 1957 (Mani Sankar Ghose v. Sibdas Adhikari). I, therefore, respectfully dissent from the contrary view, if any, taken by Bachawat, J., in (1) (1959) C. L. J. 117.