Suresh Kumar Saxena v. Rajendra Agrawal — 1974 DIGILAW 209 (ALL)

JUDGMENT N. D. Ojha, J. - The appellant, Suresh Kumar Saxena, is the landlord whereas respondent No. 1, Rajendra Agarwal is the tenant of an accommodation situate in the city of Meerut. The appellant made an application under Sec. 3 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, for permission to file a suit for ejectment against respondent No. 1 in respect of the aforesaid accommodation on the ground that he needed it for his personal use. The application was contested by respondent No. 1, inter alia, on the ground that the need of the landlord was not genuine and that at any rate his need was greater than that of the landlord. It was also pleaded by respondent No. 1 that the accommodation which was under his tenancy comprised not only the accommodation for which the application had been made but also some more accommodation and no permission could be granted in as much as it was not open to the authorities under the Act to split the tenancy. The case of the appellant in regard to the last plea raised by respondent No. 1 was that the remaining portion of the accommodation had been sold by him to one Anand Prakash Garg, that after the sale deed was executed, respondent No. 1 was intimated about it and was required to pay rent of that portion to Anand Prakash Garg. He was also informed that henceforward the appellant had no connection with the portion sold to Anand Prakash Garg. The total rent of the accommodation was Rs. 36/- and after sale in favour of Anand Prakash Garg it was apportioned so that Rs. 31/- were payable to the appellant and Rs. 4/- to Anand Prakash Garg. According to the appellant, after receiving the intimation aforesaid, respondent No. 1 started paying rent to the appellant and Anand Prakash Garg separately and consequently the tenancy stood split with the consent of the parties. The Rent Control and Eviction Officer, after considering the needs of the parties, came to the conclusion that the need of the appellant was more pressing and he accordingly granted the permission prayed for. The Rent Control and Eviction Officer, after considering the needs of the parties, came to the conclusion that the need of the appellant was more pressing and he accordingly granted the permission prayed for. In regard to the plea of splitting of the tenancy, the Rent Control and Eviction Officer took the view that the tenancies in regard to the two portions were separate as was clear from the own admission of respondent No. 1 that he had been paying Rs. 31/- to the appellant and Rs. 4/- to Anand Prakash Garg. Against the order of the Rent Control and Eviction Officer a revision was filed by respondent No. 1 before the Commissioner. The Commissioner agreed with the finding of the Rent Control and Eviction Officer that the need of the appellant was more genuine. He, however, held that in spite of his finding in regard to the genuineness of the need, he was unable to uphold the order of the Rent Control and Eviction Officer in view of the decision of this Court in Ram Charan v. State of U.P., 1969 A.W.R. 590. On the authority of the aforesaid decision he held that merely because respondent No. 1 had started paying rent separately to the two sets of owners, the accommodation in dispute could not be said to have become divided and consequently no permission could be granted in regard to only a part of the accommodation under the tenancy of respondent No. 1. On this view he allowed the revision and set aside the order of the Rent Control and Eviction Officer granting permission to the appellant. Against this order the appellant filed, an application before the State Government under Sec. 7-F of the Act aforesaid. The State Government also took the same view as had been taken by the authorities below in regard to the genuineness of the need of the appellant. It disagreed with the finding of the Commissioner on the question that the tenancy in regard to both the portions continued to be joint and that no permission could be granted as the application had been made only in regard to a portion of the accommodation under the tenancy of respondent No. 1. It disagreed with the finding of the Commissioner on the question that the tenancy in regard to both the portions continued to be joint and that no permission could be granted as the application had been made only in regard to a portion of the accommodation under the tenancy of respondent No. 1. It agreed with the finding recorded by the Rent Control and Eviction Officer in this behalf and took the view that respondent No. 1 was paying rent separately to the appellant and Anand Prakash Garg and it was thus clear that the tenancy had already been split with the consent of the parties The State Government accordingly set aside the order of the Commissioner and granted the permission prayed for by the appellant. Aggrieved by that order, respondent No. 1 instituted a writ petition in this Court under Art. 226 of the Constitution. The writ petition was allowed by a learned single Judge of this Court on August 17, 1973. In doing so the learned single Judge placed reliance on Ram Charan's case and held that mere payment of rent by respondent No. 1 separately to the appellant and to Anand Prakash Garg did not have the effect of dividing the accommodation in the tenancy of respondent No. 1, which constituted one composite unit. The landlord has now preferred the present special appeal. 2. It was urged by learned counsel for the appellant that since after the receipt of the institution from the appellant that a portion of the accommodation in the tenancy of respondent No. 1 had been transferred to Anand Prakash Garg and that he should pay Rs. 4/- for that portion to Anand Prakash Garg and Rs. 31/- only to the appellant in regard to the remaining portion, the said respondent No. 1 started paying rent separately to the appellant and Anand Prakash Garg, the tenancy stood split and it was not a case in which the application for permission could be said to have been made in regard to a portion of the accommodation. 31/- only to the appellant in regard to the remaining portion, the said respondent No. 1 started paying rent separately to the appellant and Anand Prakash Garg, the tenancy stood split and it was not a case in which the application for permission could be said to have been made in regard to a portion of the accommodation. In this connection it has to be noted that the consistent view of this Court has been that Sec. 3 of the Act aforesaid did not permit a landlord to apply for permission to file a suit for the ejectment of the tenant from a part of the building: see Majeed Uddin v. G.H. Naqvi, 1961 A.L.J. 32 at P. 35 (D.B.). In Dr. Mohib Raza v. Kailash Nath, Sp.A. No. 43 of 1953, decided on Dec. 20, 1961, another Division Bench of this Court held :- "It, therefore, appears to us that the words any accommodation used in the opening sentence of Sec. 3 of the Act refer only to the full accommodation which is let out to a tenant as a single unit. The ejectment suit for which permission is being granted must relate to the entire accommodation as the landlord cannot split the tenancy at his own sweet will. The permission for the ejectment suit must also, therefore, relate to the entire accommodation and cannot relate to only a part of it." A short note of this case is reported at page 10 of the Summary of Cases of A. I. R. 1962 All. 3. Learned counsel for the appellant, however, urged that the cases referred to above were distinguishable inasmuch as those were not cases where a part of the accommodation had been transferred by its owner to another person. Learned counsel urged that in such a situation the statutory provisions of Sec. 109 of the Transfer of Property Act was attracted and in view of those provisions it was open to the authorities under the U. P. (Temporary) Control of Rent and Eviction Act to grant the permission prayed for in respect of even a portion of the accommodation originally let out to respondent No. 1. Sec. 109 of the Transfer of Property Act reads :- "If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him : Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee. The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased." It was urged that in view of the transfer made by the appellant of a portion of the accommodation in favour of Anand Prakash Garg the right, title and interest of the appellant in the portion so transferred stood vested in Anand Prakash Garg and, since the respondent No. 1 in pursuance of the letter sent by the appellant started paying rent of that portion separately to Arand Prakash Garg, the portion of which the appellant continued to be the owner became an independent unit and the original tenancy stood split. 4. In regard to the effect of a transfer made by the landlord of the demised premises, a Division Bench of this Court in Ram Das v. Lachman Janki, 1961 A.L.J. 644, held at p. 646 : "A lessor has certain primary and ancillary rights in the demised property. 4. In regard to the effect of a transfer made by the landlord of the demised premises, a Division Bench of this Court in Ram Das v. Lachman Janki, 1961 A.L.J. 644, held at p. 646 : "A lessor has certain primary and ancillary rights in the demised property. One of the primary rights is the right to evict the lessee from the property in certain circumstances, and as an ancillary to that right there springs the right to give notice in writing to the lessee of intention to determine the lease and ask the lessee to quit the property. Sec. 109 of the Act provides that, if the lessor transfers the property leased, or any party thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary shall possess all the rights of the lessor as to the property or part transferred so long as he is the owner of it. We think that it follows from this section that all the rights, primary and ancillary, of the lessor to the property stand transferred to his transferee, and the latter becomes substituted for the former. In plain language he becomes for all practical purposes the lessor. The proviso to Sec. 109 also makes this position clear, for, if the transferee does not become the lessor, how he can be entitled to receive the rent from the lessee." So far as the rights of the transferee are concerned, the position seems to be as has been held in the aforesaid case. The difficulty arises in regard to the liabilities of a lessor and particularly when the transfer is not a regard to the entire accommodation but only in respect of a part of it. It would be seen that case of Ram Das (supra) was not a case where the accommodation had been transferred in part. Even if the accommodation is transferred as a whole the effect of the transferee getting substituted in place of the transferee would be that just as the transferee could not have made an application for permission in respect of a part of the accommodation, so would the transferee be unable to do so. The crux of the matter in regard to the transfer of a part of the accommodation would be whether the tenancy has been split or not. The crux of the matter in regard to the transfer of a part of the accommodation would be whether the tenancy has been split or not. Sec. 108(c) of the Transfer of Property Act is to the effect that the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contracts binding on the lessee, he may hold the property during the time limited by the lease without interruption. This sub-clause gives the right to the lessee to remain in possession of the accommodation let out to him without interruption. It naturally means that he is entitled to remain in such possession over the entire accommodation during the subsistence of the lease. The tenancy cannot be split unless the transferor, the transferee and the lessee all agree to it. Once all of them agree and the tenancy is split, there will be no difficulty for either the transferor or the transferee to make an application for permission to file a suit for ejectment or to sue for ejectment in regard to the respective portions of the accommodation of which they become the lessors after such splitting of the tenancy. But unless such a situation has been created with the consent of all of them, the effect of transfer of a portion of the accommodation would be that in place of one lessor would be substituted two lessors, even though of defined portions of the accommodation let out to the lessee. It cannot be denied that one of the two joint lessors cannot institute a suit for ejectment or apply permission to file such a suit in respect of a portion of the accommodation. To us there seems to be no difference in the legal position even if two persons become lessors of defined portions of the same accommodation inasmuch as the transferee of a portion of the accommodation would have no better rights than that of the transferee. Of course, if by consent of the parties the tenancy is split and two independent accommodations come into being, the position would be different. The question which, therefore, falls for consideration in the instant case is as to whether the effect of payment of rent by respondent No. 1 to the appellant and to Anand Prakash Garg separately would be of splitting of the tenancy. 5. The question which, therefore, falls for consideration in the instant case is as to whether the effect of payment of rent by respondent No. 1 to the appellant and to Anand Prakash Garg separately would be of splitting of the tenancy. 5. In Shambhoo Dayal v. Chandra Kali, A.I.R. 1964 All 350, a learned single Judge of this Court held that in view of Sec. 109 of the Transfer of Property Act, if the lessor transfers the property leased or any part of it the transferee, in the absence of any contract to the contrary, gets possessed of all the rights and if the lessee so elects be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it. The sale transaction of itself could not have the effect of splitting the tenants single tenancy into separate tenancies without consent of the tenant. In Ram Charan's case it was held that the transferee cannot acquire any greater or different right than the transferor had and that since the transferor had no right to divide the tenancy without the tenant's consent, no such right could pass on to the transferee. It was further held that the mere fact that the tenant had attorned in favour of the transferee by paying rent to him would not have the effect of the tenancy being split or divided. 6. In Munayar Basha v. V. Narayanan, A.I.R. 1961 Madras 200, it was held :- "I shall first deal with the legal effect of attornment on the rights of the parties. What is attornment ? The dictionary meaning of the word is `Transfer: legal acknowledgement of new landlord' (Oxford Dictionary). It is an overt act by which the tenant acknowledges and accepts the new person as the Landlord in the place of the old landlord. It has no impact on the tease except for the substitution of one landlord for another and the terms and incidents thereof continue and operate. It does not bring about a new tenancy or lease, nor does it destroy the existing one or alter the rights and obligations of the lessor and the lessee prevailing at the moment of the attornment. It does not bring about a new tenancy or lease, nor does it destroy the existing one or alter the rights and obligations of the lessor and the lessee prevailing at the moment of the attornment. In a very early English decision Cornish v. Searell, (1828) 8 B and C 471 at page 476, Holroyd, J. observed : The attornment is the act of the tenants putting one person in the place of another as his landlord. Halsbury in his Laws of England Vol. 23, 3rd Edn. page 408 observed as follows : Where the occupier is a tenant and agrees to hold of a new landlord during the currency of the agreement without any change in the terms of the tenancy this is a mere attornment. Earl Jowitt in the Dictionary of English law, p. 178, deals with the subject of attornment as follows : `Attornment is the agreement of the owner of a particular estate in land to become the tenant of a person who has acquired the estate next in revision of reminder, or the right to the rent or other services by which the land is held (Coke on Littleton 312-a). Thus if A, being entitled to land in fee simple, grants a lease of it to B, then B is A's tenant. If however A conveys his remainder to C, in this case B does not stand in the relation of tenant to C unless he agrees or consents to become his tenant, and this consent is called in attornment. `In Words and Phrases' permanent Edn. Vol. IV page 798, attornment is defined as follows : `Attornment is the act of recognising a new landlord. An attornment is a continuation of an existing lease on the same conditions in all respects putting another in the place of the original landlord. Any act done by a tenant whereby he recognises a change of the person to whom rent is due is an attornment, and an agreement to pay rent to an assignee of the lease is such an act'. In Corpus Juris Secundum Vol. Any act done by a tenant whereby he recognises a change of the person to whom rent is due is an attornment, and an agreement to pay rent to an assignee of the lease is such an act'. In Corpus Juris Secundum Vol. 51, p. 527 it is observed: `An attornment in effect is a continuation of an existing lease, and the tenant holds on the same conditions as under the former landlord; the tenants possession is that of the new owner-An attornment is not the creation of initiation of a new lease, beginning on the day of attornment, since a new tenancy arises only on departure from the time and conditions in the original lease." 7. The General Law of Landlord and Tenant by Fea, 7th Edn.. paragraph 728 states : "The relation of landlord and tenant may be created by attornment. An attornment in its strict sense, is an agreement of the tenant to a grant of the reversion made by the landlord to another, or, as it has been defined, the act of the tenants putting one person in the place of another as his landlord. " In paragraph 733 it has been stated that upon an attornment taking place, the tenant continues to hold upon the same terms as he held of his former landlord. 8. In Ishwar Chunder Dutt v. Ram Krishna Dasss, I.L.R. 5 Cal. 902, a Full Bench of that Court held that a sale of a share in a tenure let out to a tenant in its entirety does not of itself necessarily affect a severance of the tenure or an apportionment of rent, but if a purchaser of a share desires to have such a severance he is entitled to enforce it. In the instant case nothing has been shown that the purchaser Anand Prakash Garg had got severance of the tenure effected before the application for permission was made by the appellant. 9. It is thus clear that merely by attornment no fresh tenancy comes into being but attornment implies continuity of the original tenancy. We are, therefore, of opinion that merely because respondent No. 1 paid rent separately to the appellant and Anand Prakash Garg after a portion of the accommodation let out to him was transferred by the appellant to Anand Prakash Garg, will not have the effect of creating a fresh tenancy or splitting of the tenancy. We are, therefore, of opinion that merely because respondent No. 1 paid rent separately to the appellant and Anand Prakash Garg after a portion of the accommodation let out to him was transferred by the appellant to Anand Prakash Garg, will not have the effect of creating a fresh tenancy or splitting of the tenancy. In this view of the matter it is clear that the original tenancy continued and respondent No. 1 remained tenant of the entire accommodation irrespective of the fact that a portion of it stood transferred to Anand Prakash Garg. Consequently, an application for permission to file a suit for ejectment under Sec. 3 of the U. P. (Temporary) Control of Rent and Eviction Act could not, in view of the authorities referred to above be filed in respect of only a portion of the accommodation which was initially let out to respondent No. 1. 10. We are, however, of opinion that it was not a fit case for interference under Art. 226 of the Constitution. As already seen all the authorities have concurrently come to the conclusion that the need of the appellant was genuine. Neither before the learned single Judge nor before us the finding recorded by the authorities below in this behalf has been challenged on any other ground except the technical ground that the application for permission was not in regard to the entire accommodation which had been let out to respondent No. 1. The hardship with which the appellant is faced and which weighed with the authorities in coming to the conclusion that his need was genuine would appear from an extract from the order of the Commissioner. This extract will also indicate that respondent No. 1 has enough alternative accommodation and the need of the appellant was much greater than that of respondent No. 1. The relevant finding of the Commissioner is as follows: "Suresh Kumar opposite party was a temporary hand in the office of the R. F. C., Meerut and his services have been terminated with effect from 15-7-68. It is also a fact that the eldest son of the opposite party is disabled and due to dry gangrence he has lost some fingers of his hands. There is also reliable evidence that the opposite party had suffered twice heart attacks. It is also a fact that the eldest son of the opposite party is disabled and due to dry gangrence he has lost some fingers of his hands. There is also reliable evidence that the opposite party had suffered twice heart attacks. The shop in dispute is at a distance of 100 yards from the house of the opposite party. The need of the opposite party for the shop in dispute is genuine. The revisionist has ample space where he can shift his material in the shop without any inconvenience to him. Permission under Sec. 3 of the U. P. (Temporary) Control of Rent and Eviction Act in respect of the shop in dispute was granted to the opposite party in this case on 22-3-68. The revisionist has purchased the accommodation with vacant possession from Shri S. P. Sinha and this has been released by the R. C. and E. O. in favour of the revisionist on 17-10-68. The revisionist has sufficient space for shifting his press and other material. BHARAT BHARTI PRAKASHAN is a big publishing firm and the financial position of the revisionist is very sound. The new house purchased by this firm can easily accommodate the stock of books and papers, binding material etc. This place is also very near to the shop in dispute. Weighing the comparative needs of the parties I am of the view that the finding of the learned R. C. and E. O. that the need of the opposite party is genuine than of the need of the revisionist is correct." 11. The U. P. (Temporary) Control of Rent and Eviction Act was repealed by Sec. 43 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, which came into force on July 15, 1972. The U. P. (Temporary) Control of Rent and Eviction Act was repealed by Sec. 43 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, which came into force on July 15, 1972. Sec. 21(1) (a) of this Act reads:- "The prescribed authority may, on an application of the landlord in that behalf order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely - (a) that the building is bonafide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust;" It is thus clear that Sec. 21 now permits eviction of a tenant even from a part of an accommodation. This Act was amended by U. P. Civil Laws Amendment Act 37 of 1972. By Sec. 8 of the Amending Act clause (rr) was inserted in Sec. 43(2) which reads: "(rr) where any permission referred to in Sec. 3 of the old Act has been obtained on any ground specified in Sub-sec. (1) or Sub-sec. (2) of Sec. 21 and has become final, either before the commencement of this Act, or in accordance with the provisions of this sub-section, after the commencement of this Act and a suit for the eviction of the tenant has not been instituted, the landlord may apply to the prescribed authority for his eviction under Sec. 21, and thereupon the prescribed authority shall order the eviction of the tenant from the building under tenancy, and it shall not be necessary for the prescribed authority to satisfy itself afresh as to the existence of any ground as aforesaid, and such order shall be final and shall not be open to appeal under Sec. 22." 12. At the hearing of the special appeal learned counsels for the parties were agreed that no suit for eviction of respondent No. 1 has so far been filed by the appellant on the basis of the permission granted by the State Government. At the hearing of the special appeal learned counsels for the parties were agreed that no suit for eviction of respondent No. 1 has so far been filed by the appellant on the basis of the permission granted by the State Government. Consequently, unless the permission granted by the State Government was quashed by this Court, the appellant is now entitled to make an application under Sec. 21 of the new Act. Such an application could have been filed by the appellant even if he had not obtained any permission under Sec. 3 of the old Act. If a fresh application is now made the prescribed authority will have to consider the same question over again namely whether the accommodation is bonafide required by the appellant for occupation by himself or any member of his family. This question has already been gone into by the authorities under the Act and all of them have concurrently come to the conclusion that the need of the appellant was genuine. The writ petition was allowed by the learned single Judge on August 17, 1973, i.e. after clause (rr) had been inserted in Sec. 43 of the new Act. It cannot be disputed that the authorities under the old Act did have jurisdiction to consider the question as to whether the need of the appellant was genuine. The only dispute raised by respondent No. 1 was that even though the authorities did have jurisdiction to go into the question of the genuineness of the need, they were not entitled to grant permission inasmuch as it was prayed for in respect of only a portion of the accommodation. It is well-settled that proceedings by way of certiorari are not "of course" and the High Court can refuse to issue a writ of certiorari if it is satisfied that there has been no failure of justice : see A.M. Allison v. B.L. Sen, A.I.R. 1957 S.C. 22; D.N. Banerji v. P.R. Mukherjee, A.I.R. 1953 S.C. 58 and Sangram Singh v. Election Tribunal, A.I.R. 1955 S.C. 425. If the effect of interference under Art. 226 of the Constitution would be to put the party who has succeeded on merits before the authorities under the old Act to unnecessary harassment with no corresponding benefit to respondent No. 1 except that he would get another opportunity to reagitate the matter before the prescribed authority in regard to the bona fide need of the appellant, in our opinion, this Court would be justified in not interfering with the impugned order of the Slate Government under Art. 226 of the Constitution in as much as Courts have always learnt against multiplicity of proceedings. The parties contested the case on merits before the appropriate authorities under the old Act and a decision was reached after hearing them. It would not subserve the ends of justice if the permission granted by the State Government is quashed on the technical ground on which it has been quashed by the learned single Judge and the parties are left to reagitate the same question over again in proceedings under Sec. 21 of the new Act. In view of the fact that no suit has so far been filed by the appellant on the basis of the permission granted by the State Government, an application under Sec. 21 will have to be moved even if the permission is not quashed. It can still be moved even if the permission is quashed. The only difference would be that if the permission is not quashed the parties wall be saved from litigating over again on the question in regard to the bonafide need of the appellant, and if it is quashed the same question will be permitted to be again agitated. This clearly would result in multiplicity of proceedings and harassment to the parties which will not subserve the ends of justice. 13. It is true that in view of clause (rr) an application can be made under Sec. 21(1) only if the permission granted under the old Act has become final. In our opinion the clause "any permission has become final in clause (rr) means become final under the old Act. 14. No appeal or revision lay against the order of the State Government passed under Sec. 7-F of the old Act. In our opinion the clause "any permission has become final in clause (rr) means become final under the old Act. 14. No appeal or revision lay against the order of the State Government passed under Sec. 7-F of the old Act. The said order, of course, could be quashed under the extraordinary powers of this Court under Art. 226 of the Constitution and if a writ petition was filed and was pending on the date when clause (rr) was inserted, it could be said in the loose sense of the term that the order was not final inasmuch as it could be quashed in the writ petition. But, in our opinion, as already stated above, this is not the import of clause (rr). It envisages finality under the old Act. In Shah Chaturbhuj v. Shah Mauji Ram, 1938 A.L.J. 628, a similar question had arisen before a Full Bench of this Court in connection with the interpretation of Sec. 5 of the U. P. Agriculturists Relief Act. Sub-sec. (2) of Sec. 5 was to the following effect :- "(2) If, on the application of the judgment-debtor the Court refuses to grant instalments, or grants a number or period of instalments which the judgment-debtor considers inadequate, its order shall be appealable to the Court to which the Court passing the order is immediately subordinate and the decision of the appellate Court shall be final." It was argued in that case that the effect of the appellate order being made final was that no revision under Sec. 115 of the Code of Civil Procedure was maintainable. It was held:- "In our judgment the provision in clause (2) of Sec. 5 that "the decision of the appellate Court shall be final" means no more than this that the order passed by the appellate Court cannot be made the subject of a second appeal." It was held that notwithstanding the finality attached to the order as aforesaid, a revision under Sec. 115 of the Civil Procedure Code was maintainable. 15. 15. In this view of the matter it is clear that on August 17, 1973, when the writ petition was decided, the order granting permission to the appellant under the old Act had become final in the sense referred to above, and keeping in view the facts stated above, it was not a fit case in which any interference was called for under Art. 226 of the Constitution.The writ petition, in our opinion deserved to be dismissed on this ground alone that it was not a fit case for interference in writ jurisdiction. That can be done even now inasmuch as the appellate Court exercises the same powers and can pass all such orders which could have been passed by the Court whose judgment is under appeal. 16. In view of the foregoing discussion, we are of opinion that the judgment of the learned single Judge deserves to be set aside and the writ petition dismissed. 17. In the result, the appeal is allowed, the judgment of the learned single Judge is set aside and the writ petition is dismissed. In the circumstances of the case, parties will, however, bear their own costs.