J K Sons v. Metal Press Works — 1965 DIGILAW 258 (CAL)

JUDGMENT 1. AS this action in ejectment, concerning part of 165, Lower Chitpore road, Calcutta, raised on September 24, 1962, and governed by the Premises tenancy Act 12 of 195g (shortened hereafter into ''the 1956 Act") is opened, the point I am called upon to decide is: should I or should I not fix an issue as under-Bid the plaintiff let out to the defendant one hall, two bath rooms and latrines in the west block of 165. Lower Chitpore Road, Calcutta, on a composite monthly rent of Rs. 900 or Rs. 740 ? 2. THE plaintiff is J. K. and Sons, a partnership firm. The defendant is metal Press Works Ltd., a company. Both carry on business at "165". That is how 1 shorten 165, Lower Chitpore road. The defendant company has its registered office at "165" too. The plaintiff contends: an issue as formulated above is closed, The defendant contends: it is not. It is therefore necessary to recall the facts loading to such a deadlock at the very start of the trial. The writ of summons of this suit was served on the defendant on November 24, 1962-just two months after the plaint was presented and admitted for final disposal. Within one month of the service of the writ as aforesaid, to be exact, on December 21, 1962, the defendant made an application to this Court. The burden of such application is: 'in the plaint the rent is claimed at Rs. 900 a month. That is wrong. The rent payable by me qua tenant is Rs. 740 a month only. Here is therefore a dispute as to the amount of rent payable. Pray, determine that, pending the final decision of this dispute, by a preliminary order specifying the amount due from me'. 3. IT will be noticed that the defendant trimmed its sails just in accordance with the requirements of section 17 (2) (a) of "the 1956 Act": the very provision it invokes in prayer no. 2 of its application of December 21, 1962. Upon this application A. N. Ray, J. ordered that very day: December 21, 1962-"application noted as made today liberty to the applicant to deposit with the Registrar, High court, O. S. (Original Side), a sum of Rs. 740 as rent for November 1962 by 22nd December, 1962. Registrar to act on a signed copy of the minutes. Upon this application A. N. Ray, J. ordered that very day: December 21, 1962-"application noted as made today liberty to the applicant to deposit with the Registrar, High court, O. S. (Original Side), a sum of Rs. 740 as rent for November 1962 by 22nd December, 1962. Registrar to act on a signed copy of the minutes. Application made returnable on January 7, 1963. " 4. AFTER the usual affidavits, one in opposition by Anandjee Jivandas suraiya, a partner of the plaintiff firm, n january 18, 1963, and another in repdy by Riddhi Karan Chaturvedi, the chiief accountant and constituted attorney of the defendant company, affirmed n january 29, 1963, and filed two days later on February 1, A. N. Ray, J. made a preliminary order on February 19, 1963. The order as drawn up bears inter alia: "This court doth detei mine that the rent payable by the defendant company to the plaintiff firm is Rupees nine hundred per mon'th "and it is further ordered that this application be placed in the appropriate list for final determination on the expiry of six weeks from the date hereof." As it appears, the judge set ftt matter down for trial on evidence. And evidence was gone into. The defendant examined one witness only: :its chief accountant Riddhi Karan chatvirvedi. His examination spread over two days: May 2, 1963, and part of May 3 following. Then the plaintiff examined one after another four witnesses: iits cashier Ramanik Lai, (May 3 and another day thereafter), Anandji Jibandas suraiya, a partner, (May 10), Kalyanji jibandas Suraiya, Ariandjrs brother and a partner too, (May 20), and Dr. Nirmal Kumar Sen, Director and Chemical Examiner of Forensic Science Laboratory of the Government of West bengal, (May 10 ). [i have taken these dates of examination from the pape:r-book in the appeal by the defendant from the order of A. N. Ray, J. rendering his final decision of the dispute on rent, the appeal having been numbered as 142 of 1963]. Thus, the examinaticon of the witnesses by both sides lasted five days or thereabouts. All this done, and surely arguments heard, A. N. Ray, J. delivered judgment on May 31 and june 4, 1963, 'holding' arid 'determining' finally the rate of rent to be Rs. 900 a month. Thus, the examinaticon of the witnesses by both sides lasted five days or thereabouts. All this done, and surely arguments heard, A. N. Ray, J. delivered judgment on May 31 and june 4, 1963, 'holding' arid 'determining' finally the rate of rent to be Rs. 900 a month. An appeal taken by the defendant against this judgment under clause 15 of the Letters Patent came to little. Because, on May 5, 1965, the court of appeal upheld the determination so made. The judgment is the judgment of A. C. Sen, J., with whom D. N. Sinha, J. agreed. An attempt to carry the matter in appeal to the Supreme court failed, leave prayed for to that end having been refused. With the determination of the rate of rent thus made by the court of first instance, affirmed by the court of appeal, and leave to carry the matter in appeal to the Supreme Court refused, the suit comes up before me for trial. And I am asked on behalf of the defendant to adjudicate the question of the rate of rent over again by striking an issue to that effect: just the one set out in the opening paragraph of this order. I am clear, I cannot do so, on first principles and statute law. Authorities there are and have been cited too. But, as will presently be seen, there are none determining for me the precise point I am now seized of. 5. HOW the rate of rent has been determined has been noticed. In the full-length trial the judge of the first instance enters into evidence-oral and documentary-lasting for five days or thereabouts, hears counsel for the parties, and delivers judgment, which is spread over two days, reviewing and meeting the various contentions raised at the Bar, as also recording a statement of the grounds of his order by which he determines the rate of rent to be Rs. 900 w month. If is, without doubt, a derision which very much affects the merits of the question: what is the rate of rent-Rs. 900 a month or rs, 740 a month ? And it is so live a question between the parties-a question upon which hang the fortunes of this litigation. 900 w month. If is, without doubt, a derision which very much affects the merits of the question: what is the rate of rent-Rs. 900 a month or rs, 740 a month ? And it is so live a question between the parties-a question upon which hang the fortunes of this litigation. So burning a question carrying with it so vivid a right of the plaintiff or so vivid a liability of the defendant, this judgment of the trial judge determines. No wonder, the defendant, aggrieved thereby, presses into service clause 15 of the Letters Patent-as, indeed, it is entitled to do-and appeals. But for this having been a judgment, clause 15 of the Letters Patent would not have been attracted; and no appeal would have lain either. The court of appeal, by its judgment which runs into thirty-one typed pages, dismisses the appeal, negativing "all the contentions of Mr. Bhabra" in support thereof, and thus upholding the deter-rninatioa made by the judge of the first instance of the rcni to be Ks. 900 a month. Leave to appeal to the Supreme court against this decision is refused. So. there the determination of the monthly rent at Rs, 900 stands, Now, ii" [ have: to go through the gamut over atfain, as I am asked to do on behalf of the defendant, where will litigations end and when ? Law's delay is a blot on the administration of law, as we all are painfully aware. Shall I render it a greater blot by doing away with the doctrine of finality of litigation and thus suffering the plaintiff to be vexed lor the third time. If not the fourth, for the some matter touching the rate of rent ? 6. THIS is one principle. There is siill another. Mine is a court of coordinate jurisdiction with the court of the first instance which has determined the rate of rant to be Rs. and00 a month. Vvliure is my authority to sit in appeal over the decision of such a court, and that too not on the basis of existing evidence but of evidence afresh ? I find none. Mine is a court of coordinate jurisdiction with the court of the first instance which has determined the rate of rant to be Rs. and00 a month. Vvliure is my authority to sit in appeal over the decision of such a court, and that too not on the basis of existing evidence but of evidence afresh ? I find none. Still less do I find any authority enabling me to sit in appeal likewise over the decision of the court of appeal which has upheld the decision of A. N. Hay, J. And that is just what I shall have to do if I enter into the question of rate of rent over again, Worse, so much money and time spent to get a decision as to what the rent is then goes to waste, even though such decision is the decision of a division of this court, to wit, the court of appeal. Nobody, not even the defendant, I venture to think, would have bothered to take the trouble they did, were they under the impression that a decision as this on the rate of rent was only to be a prelude to a further "battle" at the time of the final hearing of the suit. It is however said: does not a primary court come to a decision anew on an interlocutory matter, such as issuing an injunction or appointing a receiver, at the conclusion of the trial, no matter what decision it came to earlier during the carriage of the suit ? It does. But two subjects stand on different planes. The protection of legal rights pending litigation is the very basis of a temporary injunction. The preservation of property, pending litigation again, is the first principle on which a court appoints a receiver. But in the case in hand the final determination of the rent has been made once and for all, not pending the litigation. So, this analogy fails, compare as it does the uncomparable. And compare if you will, compare it with a preliminary judgment, not an interlocutory one. Say, the court of first instance decides a preliminary issue: that it has jurisdiction or that the suit is not barred by limitation-an issue the like of which goes to the root of the cause. Will the court go into it over again, appeal or no appeal ? It will not. Say, the court of first instance decides a preliminary issue: that it has jurisdiction or that the suit is not barred by limitation-an issue the like of which goes to the root of the cause. Will the court go into it over again, appeal or no appeal ? It will not. Because the preliminary issue has been heard and decided and is therefore closed. The same consideration prevails here. The preliminary issue on the rate of rent has been heard and decided, first by the primary court and then by the court of appeal, and is therefore closed. 7. THE use of the word-issue-is objected to. Has the trial judge, A. N. Ray, J., it is asked, fixed an issue ? as a matter of words and in the stereotyped way, he has not. But, in substance, he has. After reciting the cases; the parties state in the plaint and affidavits, and pinpointing the difference; in approach between the two-the: monthly rent, of Rs. 900 as contended for by the plaintiff versus Rs. 740 as; contended for by the defendant-the learned judge concludes: "this in short is the dispute between the parties" : vide the concluding sentence in the second paragraph at page 203 of the paper-book containing the judgment. To state so is to state the matter on which the parties are in issue. The material proposition of fact affirmed by the plaintiff is that the rent is Rs. 900)a month. That is denied by the defendant who alleges that the rent is RSJ. 740 a month. The judge records that that is the dispute between the parties and proceeds to determine the dispute. In other words, in recording so, he rei-cords the point at issue between the parties and proceeds to determine the point. In substance, that is an issue-a word in which there is no magic. And certainly it will not be said that there can be no issue unless it is cast on a separate sheet of paper in an interrogative form as this: what is the monthly rent-Rs. 900 or Rs. 740 ? be it recorded in fairness to Mr. Meyer and Mr. Bhabra, the learned counsel for the defendant, that it has not been said so either. 8. THEN, when substantial justice has been done, a mere omission to settle the issues so called does not call for a new trial. 900 or Rs. 740 ? be it recorded in fairness to Mr. Meyer and Mr. Bhabra, the learned counsel for the defendant, that it has not been said so either. 8. THEN, when substantial justice has been done, a mere omission to settle the issues so called does not call for a new trial. Such is an ancient case. (1) Mussumat Mitna v. Syud Fuel Rub and others, (1870) 13 M. I. A. 573, where the Principal Sudder Ameen tried the whole of the suit and dismissed it with costs, without settling the issues. The provisions of the then code, 8 of 1859, directing the settlement of issues were regarded as "most important". Still, Sir James W. Colvile, delivering the judgment of their Lordships, while "desirous to avoid saying anything which may have the effect of introducing any laxity. . . . . . in regard to the observance of those provisions", refused to interfere with the Principal sudder Ameen's judgment upheld by the High Court for three reasons. One, their Lordships "do not find in the code (of 1859) anything which says positively that the omission to settle issues is fatal to the trial". Two, "no objection seems to have been taken in the Court below to dealing with the case without the settlement of the issues. " Three, "there has not in this case been a failure of justice in consequence of the omission to settle the issues", for which "their Lordships are not prepared to send it back for further litigation. " To thesa three reasons may be added still another given by the High court and approved by the Privy Council: "that the parties had gone to trial knowing what the real question between them was, that the evidence had been taken, that the conclusion had been in the opinion of the appellate court correctly drawn from the evidence. " Afortiori these four reasons apply here, because what is seen in the case in hand is not the trial of the whole of the suit, but only part thereof. Like the Code of 1859, the Code of 1908, by which we govern ourselves, does not say anywhere that the omission to settle an issue is fatal to the trial. " Afortiori these four reasons apply here, because what is seen in the case in hand is not the trial of the whole of the suit, but only part thereof. Like the Code of 1859, the Code of 1908, by which we govern ourselves, does not say anywhere that the omission to settle an issue is fatal to the trial. No objection appears to have been taken before A. N. Ray, J. to dealing with the matter by his Lordship without the settlement of an issue on the rate of rent. A failure of justice is nowhere to be seen. What is seen instead is justice, as the decision of the court of appeal confirming the determination made by A. N. Ray, J. goes to show. Furthermore, both parties went to trial, led evidence and had their cases argued out, with a perfect understanding of the point or the issue which was to be determined. A crowd of decisions cluster round the subject. To cite but two, (2)Rani Chandra Kunwar v. Narpat Singh, [1907] 34 LA. 27: I. L. R. 29 All 184: 11 C. W. N. 321: 5 C. L. J. 115, is one, decided in 1906 and come into the reports in 1907. There the plea that the plaintiff was given away in adoption and therefore not entitled to inherit was taken at the trial, though not in the written statement. But both parties had gone to trial on adoption. So the plaintiff was not taken by surprise. And, it was held, the plea was open to the defendant, no issue there was though to that end. From this judgment of Lord Atkinson in 1906, let me come to (3) Nagubai Ammal and others v. B. Sharma Rao and others, decided on April 26, 1956, (1956) S. C. A. 959. There no specific plea that the sale was hit by the doctrine of Us pendens was raised in the plaint. Result: there was no such specific issue either. But the defendant went to trial with the full knowledge that the question of lis pendens was in issue (just as the defendant before me went to trial with the full knowledge that the quantum of the monthly rent-Rs. 900 or Rs. 740-was in issue ). Result: there was no such specific issue either. But the defendant went to trial with the full knowledge that the question of lis pendens was in issue (just as the defendant before me went to trial with the full knowledge that the quantum of the monthly rent-Rs. 900 or Rs. 740-was in issue ). So, it was held by venkatarama, Ayyar, J., speaking for the court: "The true scope of this rule (that 'no amount of evidence can be looked into upon a plea which was never put forward': per Viscount Dunedin in siddiik Mahomed Shah v. Mt. Saran and others, a. I. R. 1930 P. C. 57) is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto. " 9. UPON all that goes before, the conclusion I have come to is that it is no longer open to the defendant to raise again the issue (on the rate of rent) it seeks to, closed as the issue is on first principles, such as the doctrine of finality of litigations which is but another. name for the principle of res judicata, and this court having no power to sit in appeal over the decision of A. N. Ray, j. or of the court of appeal affirming a. N. Ray, J. 's decision. 10. A close look at, and a conspectus, of the entire provisions of, section 17 of "the 1956 Act" only strengthen so much the more the conclusion just come to. But what the approach to the problem should be like be set out first. Here is a positive enactment of our legislature. The proper course for me is therefore to examine its language and to ascertain its proper meaning, uninfluenced by any consideration from the previous state of the law, to quote with a little adaptation from the judgment of the Board delivered by Lord sinha in (4) Musammat Ramanandi kuer v. Musammat Kalawctti Kuer, (1927) 32 C. W. N. 402. The proper course for me is therefore to examine its language and to ascertain its proper meaning, uninfluenced by any consideration from the previous state of the law, to quote with a little adaptation from the judgment of the Board delivered by Lord sinha in (4) Musammat Ramanandi kuer v. Musammat Kalawctti Kuer, (1927) 32 C. W. N. 402. The same guidance do I receive from Lord Herschell's speech in (5) Vagliano Brothers v. The Governor and Company of the bank of, England, L. R. (1891) A. C. 107 at page 144: "I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninflenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. If a statute, intended to embody in a code of particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed and the very object with which it was enacted will be frustrated". I have reason to quote this passage, as also the earlier one, with a little adaptation though. The reason is that decisions under "the 1950 Act", the predecessor of "the 1956 Act", as also the corresponding section of "the 1950 Act" have been pressed upon me as an aid to the construction; (More of which hereafter in paragraph 20 et seq. infra. ). Governing myself by these two decisions-one of the Privy Council and another of the House of Lords-I examine the language of section 17 of "the 1956 Act" and ask myself what is its natural meaning. Section 17, the side-note of which reads: "when a tenant can get the benefit of protection against eviction",runs into four sub-sections. infra. ). Governing myself by these two decisions-one of the Privy Council and another of the House of Lords-I examine the language of section 17 of "the 1956 Act" and ask myself what is its natural meaning. Section 17, the side-note of which reads: "when a tenant can get the benefit of protection against eviction",runs into four sub-sections. An action in ejectment on any one of the grounds listed in section 13 being there, sub-section (1), by its terms, provides- (a) Within one month of the service of the writ of summons on the tenants, deposit in court or payment to the landlord, by him (the tenant), of an amount calculated at the rate of rent at which it was last paid; (b) That too for the period of default, if any, including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made; (c) Interest at the rate of 8-113 per cent a year on such amount from the date when it was payable "up to the date of deposit" (quaere: where goes payment as distinguished from deposit ? and will it be interest free) ? (d) Continuance thereafter of deposit or payment, as the case may be, month by month, by ths 15th of each succeeding month, of a sum equivalent to the rent at that rate. An assortment of terms just set out may run smoothly enough when there is no dispute about the rent, about the rate at which it was last paid. But what if there is a dispute, as here ? sub-section (2) provides for that. And sub-section (1) is subject to the provisions of sub-section (2) the requirements of which are-1. Within one month of the service of the writ of summons, the tenant shall deposit in court the amount admitted by him to he due. 2. Along with the deposit, determination of the rent payable by him, he shall pray the court for, by an application without which no deposit shall be accepted. 3. Within one month of the service of the writ of summons, the tenant shall deposit in court the amount admitted by him to he due. 2. Along with the deposit, determination of the rent payable by him, he shall pray the court for, by an application without which no deposit shall be accepted. 3. On receipt of such application, the Court shall, having regard to (i) the rate at which the rent was last paid, and (ii) the period of default, if any, make, as soon as possible within a poriod not exceeding one year, a preliminary order, pending final decision of the dispute, specifying the amount, if any, due from the tenant. 4. Such preliminary order made, within one month of the date thereof, the tenant shall deposit in court or pay to the landlord the amount specified therein, Here ends clause fa) of sub-section (2)]. 5. As soon after the preliminary order as possible, the court shall, having regard to the provisions of the Act, make a final order which shall (i) determination (a) of the rate of rent (b) of the amount to be deposite in court or to be paid to the landlord; (ii) fixation of the time within which deposit or payment hag to he made and (iii) a direction as to the manner and time of the adjustment ot the amount already deposited or paid, [such is clause (b) of subsection (2)1. This is all that sub-section (2) of section 17 prescribes. In making a final order, the court shall have "regard to the provisions of this Act", as is the language of clause (b) of sub-section (2). What are these e provisions? As Mr deb, the learned counsel for the plaintiff submits,they are, for examples, section 2 (c) defining fair rent, section 4 providing inter alia any excess over fair rent to be irrecoverable, section 8 prescribing the mode of determining fair rent in divers cases, section 9 laying down when fair rent can be increased, etc. 11. TWO more sub-sections of section 17 of "the 1956 Act" remain to be reviewed to complete the review of the section. Two types of cases have emerged so far. One, where "the amount of rent payable by the tenant" is not in the realm of controversy. Sub-section (1) rules this type. Two, where there is "any dispute" about it. Sub-section (2) rules this type. Two types of cases have emerged so far. One, where "the amount of rent payable by the tenant" is not in the realm of controversy. Sub-section (1) rules this type. Two, where there is "any dispute" about it. Sub-section (2) rules this type. In the former case, the amount of rent settles itself withought the intervention of the court which has little to do, both parties being agreed as to what the amount is. In the latter case, such amount is settled too, but through the intervention of the court which has much to do and determines such amount, first by a prelimnary order, pending final decision of the dispute, and then by a final order, necessarily rendering the final decision of the dispute. The dispute, which was an open one, to start with, (as every dispute awaiting the court's decision has to be), is then closed. The final order closes it. 12. WITH the stage so set, sub-section (3) shows its head and says to the court: 'order the tenant's defence against delivery of possession to be struck cut and proceed with the hearing of the suit, if he has failed to deposit or pay the amount under sub-section (1) or sub-section (2)'. It is thus plain to be seen that sub-section (3) favours the landlord to that extent. And that is just what Mr. Deb submits. But section 17 sees the matter whole and does not turn a blind eye on the tenant. It therefore says, by sub-section (4), to the court: 'decree not delivery of possession to the landlord on the ground of default of payment of rent by the tenant, if he has made the deposit or payment under sub-section (1) or subsection (2 ). Allow costs, if you will to the landlord. ' it is thus there to be seen that sub-section (4) favours the tenant to that extent, as again is the submission of Mr. Deb. But what if the tenant "has made default in payment of rent for four months within a period of twelve months". He misses the relief under sub-section (4) and pays the forfeit of his tenacny pro tanto, by having defaulted so. That is the mandate of the proviso to sub-section (4 ). Thus, do I submit the provisions of section 17 to a detailed examination. He misses the relief under sub-section (4) and pays the forfeit of his tenacny pro tanto, by having defaulted so. That is the mandate of the proviso to sub-section (4 ). Thus, do I submit the provisions of section 17 to a detailed examination. And what comes out, after such examination, as the natural meaning, "unifluenced by any considerations derived from the previous state of the law" ? The natural meaning, so far as it concerns the point in hand, is that a dispute as to the amount of rent payable by the tenant has to be resolved by the court, first by a preliminary order within one year at the latest from the date the dispute is raised by an appropriate application, and that too pending a final decision, as the use of the express words to that end coupling with the adjective, preliminary, proclaims, and then by a final order. A. N. Ray, J. did just that. On February 19, 1963, within sixty days from December 21, 1962-the date of the defendant's application raising the dispute-he recorded a preliminary order determining the rent payable to be Rs. 900 a month. [see paragraphs 3, 4 and 5 ante. ] And on June 4, 1963, he made a final order determining again Rs. 900 a month to be the rent payable. What is more, the court of appeal upheld such determination. [see paragraphs 5 and 7 ante. ]. 13. THE statute has thus received effect. And the final order, rendering a final decision of the dispute, is there binding on the defendant. Mr. Meyer will have me hold that the finality a final order as this postulates is only for the purposes of the application under section 17 (2), riot for the suit when it comes to be heard. But, his difficulty is that the statue does not say so. The statute (section 17) says instead, by its sub-section (3), that once the dispute raised under sub-section (2) is resolved by a final order, the tenant refuses to deposit or pay the amount in terms of such final order, at the peril of his defence against delivery of possession being struck out and the suit being proceeded with against him minus that defence. The word final filleted to itself means what it says: last, decisive, conclusive. The word final filleted to itself means what it says: last, decisive, conclusive. A final order under clause (b)of sub-section (2) therefore means that: the last order which is decisive and conclusive. Non-compliance with such order, as the succeeding sub-section, namely, sub-section (3), provides, lands the tenant in the predicament just noticed: forfeiting his much the most imporant defence-the defence against delivery of possession. And still I shall have to hold that the final order is not final for the purposes of the suit, as Mr. Meyer asks me to. I confess, I cannot bring myself to do so. I have stated why. But I have not stated yet all I have to. To accede to Mr. Meyer's contention is to say that the order under clause (b) of sub-section (2) is final and not final. That is what beats me. To say that final is not final is as good or as bad as saying that salt is noi salty. In truth, either the order is final or not final. It cannot be both at the same time. The spacing Mr. Meyer resorts to-final at the hearing of the application under section 17 (2) and not final at the hearing of the suit-is what he says; but the statute does not. Again, to accede to such contention is to hold that when the suit comes to trial, say, without the tenant making a deposit or payment under clause (b) of sub-section (2), the court will observe: true it is that the tenant's defence against delivery of possession has been struck out for his non-compliance with the final order that was made under sub-section (2 ). But that is not a final order for the purposes of the trial. So, let the question of amount of rent be gone into over again. And whether or no the defence against delivery of possession, struck out then, may be restored will depend upon the decision come to afresh'. Unless the court observes so and shapes its' proceedings so, it is bound, under sub-section (3), to "proceed with the hearing of the suit" berefit of the defence against delivery of possession. Apart from the absurdity such contention works itself into, so startling a result needs, clear and precise words in the. statute-words which are not simply, there. Unless the court observes so and shapes its' proceedings so, it is bound, under sub-section (3), to "proceed with the hearing of the suit" berefit of the defence against delivery of possession. Apart from the absurdity such contention works itself into, so startling a result needs, clear and precise words in the. statute-words which are not simply, there. I am therefore unable to read the words-final order-in clause,; (b) of sub-section (2) in the way Mr. Meyer does. On the other hand, going by the plain and natural meaning of the, words in the light of the whole of the section, i conclude that the final order A. N. Ray, J. made on June 4, 1963, determining the rent to be Rs. 900 a month is final, and nothing but final, for the purposes of the trial as well, and what is more, made all the more final by a division of this court upholding it in appeal. The same issue, the issue I am now invited to strike, cannot therefore be raised over again at the trial before me. 14. NOW, to the Authorities cited at the bar. Mr. Meyer. "strongjy relies" upon (6) Ashalata Miira v. A. D. Viz., (1955) 59 C. W. N. 692, where a division of this court (K. C. Das Gupta, J., as his Lordship then was, and Guha, J.)laid down: "It is the Court's duty when an application is made under section 14 (4) [of "the 1950 Act"] to decide for the purpose of the application, first that there is relationship of landlord and tenant in case this is disputed; secondly, what rent, if any, is in arrears; thirdly, the rate at which rent was last paid." Mr. Meyer emphasizes the expression-for the purpose of the application-an expression which his Lordship (Das Gupta, J. wholly judgemetn it is and with whom Guha, J. agreed)repeated not once, not twice, but thrioe. And he submits that as the determination of rent made under section 14 (4)of "the 1950 Act" would be for the purposes of the application, not for the purposes of the suit, so also like determination under section 17 (2) of "the 1936 act", as here, should be holding good for the purposes of the application thereunder only, not for the purposes of the suit about to be tried. I am unable to accept this submission for motre reasons than one, the first of which is that I am not going to ascertain the proper meaning of section 17 (2) of "the 1956 Act", influenced by any consideration derived from the previous state of the law codified in section 14 (4) of "the section 14 (4) of "the 1950 Act". ". . . . . . the Court after giving an. opportunity to the parties to be heard. may make an order for deposit of rent at such rate (i. e., at which it was last; paid) and the arrears of rent, if any, under section 14 (4), the court has the option. It may make an order-which means, it may not too. And language as this led a division of this court to observe in (7) Bidyapati Ghosh v. Raj Kumar Pal, decided in 1951 aind come into the reports in 1954: [1954] 58 c. W. N. 361: "that [section 14 (4)] merely allows the Court to make an order. 1950 Act". To do so is to fall into just the error Lord Herschell and Lord sinha warn against in Vagliano Brothers' and Ramanandi Kuer's cases (supra) respectively. The more,so, when the natural meaning of section 17 (2) is what I find it to be, examining the plain language thereof. [see paragraph 15 et seq. ante. ] the second reason is: section 14 (4) of "the 1950 Act" and section 17 (2) of "the 1956 Act" do not speak in the same voice. How marked the difference is becomes manifest even from a cursory glance of the two sections the material portions of which (touchnig the Court's functions)are reproduced below alongside one another : section 17 (2) of "the 1956 Act". "On receipt of such application (by the tenant along with the: deposit of the amount admitted by him and raising the dispute), the court shall- (a). . . . . . make, as soon as possible not exceeding one year, a preliminary order, pending final decision of the dispute,. . . . . . . . . . . . . . (b). . . . . . make, as soon after the preliminary order as possible, a final order determining the rate of rent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b). . . . . . make, as soon after the preliminary order as possible, a final order determining the rate of rent. . . . . . . . . . . . . . . . . . " The Court is not bound to make an order. ": per Harries, C. J., Daa, J. agreeing. In Ashalata Mitra's case (supra), Das gupta, J. (as his Lordship then was)did not dissent from this view. On the contrary, his Lordship observed: "i respectfully agree with the view expressed [by Harrias, C. J. ] and pointed out that if the courts would refuse to make an order under section 14 (4), simply because an objection on the score of suspension of rent (as in bidyapati's case) was taken, whether there was any foundation for it in fact or not-and in every case such objection was likely to be taken-the section would become practically a dead-letter. This aspect, however, does not concern me here. Now, sec section 17 (2), The court has nothing like any option. It shall pass two orders. One is a preliminary order, pending a final decision of ". . dispute. Even the time inside of which such preliminary order is to by made is prescribed: one year from the date of the tenant's application raising the dispute. The other is a final order, rendering the final decision of the dispute. So, what follows from section 14 (4) cannot necessarily follow from section 17 (2 ). The third reason is that the reason for the decision in Ashalata mitra's case (supra) is completely different. Was the subordinate judge right in rejecting the landlord's petition under section14 (4)in view of the plea for suspension of rent raised by the tenant ? That was the question which a division of this court answered in the negative. The question there was not, as it is before me: is the rate of rent determined earlier in the suit, by a final order, rendering upon evidence, a final decision, liable to be reopened at the trial when the suit comes to be heard ? ashalata Mitra's case (supra) therefore appears to be clearly distinguishable. The question there was not, as it is before me: is the rate of rent determined earlier in the suit, by a final order, rendering upon evidence, a final decision, liable to be reopened at the trial when the suit comes to be heard ? ashalata Mitra's case (supra) therefore appears to be clearly distinguishable. Indeed the question just posed the question on the foot of which I distinguish Ashalata Mitra's case-arose before Renupada Mukherjee, J., again under "the 1950 Act", not under "the 1956 Act", in (8) Bishnu Charan mukherjee v. Basudev Banerjee and Ors., (1957) 99 C. L. J. 72-a case Mr. Deb relies upon. There, on an application by the landlord under section 14 (4) -which was contested by the tenant on the principal ground that no relationship of landlord and tenant existed-the decision come to was that such relation did exist. His Lordship (Renupada Mukherjee, J,) held that such decision was binding between the parties and could not be roopened at the trial. The position under "the 1956 Act", section 17 (2) making it obligatory for the court to make a final order, rendering the final decision of the dispute, appears to be stronger still. It is not right to say, as has been said, that Renupada Mukherjee, j. "'brushed aside" the Bench decision in Ashalata Mitra's case (supra), which his Lordship only distinguished on the ground of there having been nothing "to suggest an inference" that the decision given by the court on an application under section. 14 (4)about the existence of relationship of landlord and tenant between the parties "would not bind them at a subsequent stage". Surely, such is not the ratio decidendi in Ashalata Mitra's case. And that (ratio decidend) is what makes a decision an authority; not an observation, repeated though again and again, on matters which do not arise for decision. 15. THE unreported decisions relied on by mr. Meyer cannot help matters forward for the defendant. In (9) Pannalal Halwai and another v, Hargobinda Sinha, civil Rule No. 341 of 1955, decided by P. N. Mookerjee, J. on August 11, 1955, the trial court's finding on dispossession of two rooms of the tenancy, for the purpose of the application under section 14 (4), was upheld, and a remit was directed to find out "the amount of abatement" the tenant defendant was entitled to. What the trial court did virtually amounted to suspension of the rent. This has little to contribute to the problem before me, and that too under section 17 (2) of "the 1956 Act". The approach must necessarily be the same in another unreported decision, also under "the 1950 Act", in (10) Sheikh Sajimuddin v. Ramnarayan Tewari, appeal from Original Decree No. 193 of 1956, decided by P. N. Mookerjee and Sarkar, jj. on August 13, 1958, where reference has been made to an earlier decision in the same care of Mookerjjee and Sarkar, JJ. to the effect that a finding under section 14 (4)"could not constitute any insuperable bar to the reopening of the question at the final hearing". Let me state at the risk of repetition, I refuse to call in aiid section 14 (4) of "the 1950 Act" with a view to interpreting section 17 (2) of "the 1956 Act" the plain and natural meaning of which is so clear, as it has been my endeavour to point out in paragraph 15 ei seq. ante. 16. STILL another unreported decision, this time under "the 1956 Act", (11) C. V. Krishnarrmrthy v. Charnbala devi, Civil Order No. 53 of 1964, made by A. C. Sen, J., on January 10, 1934, has been brought to my notice. Here, his Lordship summarily dismissed the application under section 115 of the procedure Code. It means that no rule was issued and that the opposite party was not therefore heard. Still his lordship made "it clear" in the order summarily rejecting the revisional petition that "the finding on the question of default arrived at by the learned munsiff" in "the proceedings under section 17 of the West Bengal Premises tenancy Act. 1856", would "not be binding en the tenant at the final hearing of the suit. " i regard it as a mere observation in the nature of a direction, presumably in the special circumstances of the case. With respect, it is not a judgment. If it is, it is per incuriam, if I may say so, again with respect. It does not therefore affect the reasons I have adduced in the foregoing lines. It does not bind me either. In the result, I rule that the defendant is pieduded from raising the issue it wants to, as noticed in the opening paragraph of this order. 17. It does not therefore affect the reasons I have adduced in the foregoing lines. It does not bind me either. In the result, I rule that the defendant is pieduded from raising the issue it wants to, as noticed in the opening paragraph of this order. 17. THE suit do come up before me for hearing on January 19, 1966, subject to any cause part-heard or specially fixed. Costs will be costs in the cause. Certified for two counsel.