Baijnath Gupta v. Lakshmi Narayan Gupta — 1976 DIGILAW 359 (CAL)

JUDGMENT Mukherji J. : This is an appeal against the judgment of M. M. Dutt, J. delivered on 15th of June, 1973 in F. A. 78 of 1972. 2. The facts of the case may briefly be stated :– One Lakshmi Narayan Gupta brought a suit for ejectment against Baijnath Gupta and another, being Title Suit No. 76 of 1959, in the City Civil Court, Calcutta, on the ground that the defendants were licensees. The learned Judge, City Court, found that the evidence adduced by the plaintiff was neither sufficient nor strong enough to sustain the plaintiff's case that the defendants were mere licensees and not tenants. In that view of his finding, the learned Judge dismissed the suit. Being aggrieved, the plaintiff preferred an appeal to this Court. The said appeal was allowed by Chittatosh Mookerjee, J. who sent the case back to the learned court below. In the order of remand it was held by Mookerjee, J. that the onus was also upon the defendants to prove their case that they had been in possession of the disputed room since November 1957 as tenants under the plaintiff as alleged. Mookerjee, J. observed "It is well settled now that the test of exclusive possession is not always conclusive though it is a very important indication in favour of tenancy. In that view of his finding Mookeljee, J. directed the lower court to consider afresh whether Ext. 'C', the receipt, showing payment of Rs. 6000/- by the defendants to the plaintiff was ante-dated. After the case was sent back, the learned Judge, City Court, followed the direction of Mookerjee, J. and decreed the suit. Being aggrieved, the defendants came up in appeal, being F. A. 78 of 1972. The said appeal was dismissed by M. M. Dutt, J. and hence this Letters Patent Appeal. 3. Mr. Bankim Chandra Dutt, learned Advocate appearing on behalf of the appellants in the first place, submits that the order of remand' passed by Mookerjee, J. was not in accordance with law. It is submitted that the lower court was directed to decide a point of law which ought to have been decided by the appellate court itself. 4. Mr. Mr. Bankim Chandra Dutt, learned Advocate appearing on behalf of the appellants in the first place, submits that the order of remand' passed by Mookerjee, J. was not in accordance with law. It is submitted that the lower court was directed to decide a point of law which ought to have been decided by the appellate court itself. 4. Mr. Manindra Nath Ghosh, learned Advocate appearing on behalf of the respondent, submits that the order of remand passed by Mookerjee, J. cannot now be challenged in this Letters Patent Appeal inasmuch as no appeal was preferred against the said order of remand. Mr. Dutt joins issue and contends in the first place that no appeal lay against the order of remand passed by Mookerjee, J. and even assuming that an appeal lay the appellant can very well challenge the order in the present appeal as the order was merely an interlocutory order. 5. Mr. Dutt in support of his contention refers to a decision reported in (1) AIR 1972 SC 1201 , The United Provinces Electric Supply Co. Ltd v. T. N. Chatterjee and others. In this case it has been held that "A party is not bound to appeal against every interlocutory order which is a step in the procedure that leads upto a final decision or award". In this case the High Court in writ proceedings quashed the award of the Industrial Tribunal and remanded the case to the Tribunal under Article 227 for fresh disposal in accordance with law. It was held that "the order is interlocutory and not a final order and, therefore, the decision on any particular point given therein cannot operate as res judicata in an appeal by special leave filed against the final award of the Tribunal given after the remand". We do not see how the proposition laid down in this case helps the appellants. 6. Mr. Dutt next refers to a decision reported in (2) AIR 1960 SC 941 (Satyadhyan Ghosal and others v. Smt. Deorajin Debi and another). It has been held "A special provision is made in Sec. 105 (2) of Civil Procedure Code as regards orders of remand. But even under Sec. 105(2) the correctness of an order of remand can be challenged in appeal from the final decision provided the order of remand is not appealable". It has been held "A special provision is made in Sec. 105 (2) of Civil Procedure Code as regards orders of remand. But even under Sec. 105(2) the correctness of an order of remand can be challenged in appeal from the final decision provided the order of remand is not appealable". This decision also does not help the appellants inasmuch as it will have to be found that the order of remand made by Mookerjee, J. was not appealable. 7. Mr. Manindra Nath Ghosh submits that the order of remand was an order which must be treated as a judgment and if it is a judgment then it must be held that a Letters Patent Appeal lies against the said judgment. In support of his contention Mr. Ghosh refers to a decision reported in (3) AIR 1956 Calcutta 630 (M.B. Sirkar and Sons v. Powell & Co.). In this case it has been held that "An order deciding a vital question concerning the merits of the case and the rights of the parties is a judgment within the meaning of Clause 15 of the Letters patent and is appealable". Mr Ghosh also refers to a decision reported in (4) 17 Weekly Reporter 364 (The Justice of the Peace for the Town of Calcutta v. The Oriental Gas Company Ltd.). The same view was taken in this case and it was held ''The word 'judgment' in clause 15 means a decision which affects the merits of the question between the parties determining some right or liability, and which may be either final or preliminary or interlocutory". Mr. Ghosh also relies on a Full Bench decision reported in (5) AIR 1972 Calcutta 449 (Nurul Hoda and others v. Amir Hussan and another). Mr. Ghosh also relies on a Full Bench decision reported in (5) AIR 1972 Calcutta 449 (Nurul Hoda and others v. Amir Hussan and another). It has been held" The following tests should be applied in considering whether a particular order amounts to a judgment or not., namely, (i) whether the order in question puts an end to the proceeding so far as the Court dealing with it is concerned in which the order was sought and made, (ii) the order must involve determination of some right or liability affecting the merits, (iii) an adjudication or a decision, which is not anything more than a step towards obtaining the final adjudication on the merits of the dispute in the proceeding is not judgment within the meaning of Letters Patent, (iv) where the decision involves an adjudication on the question of limitation or jurisdiction of the Court, in certain cases, such decisions would amount to judgment". Mr. Ghose also refers to a decision reported in (6) AIR 1966 Calcutta 588 (Jagadish Chandra Bose v. Baijnath Shaw). In this case also it was held by Their Lordships that" The remand order conclusively determined the rights of the parties on the question of eviction ; therefore it held the effect of a decree within the meaning of Cl. (2) of Sec. 2 of the Code of Civil Procedure. The order of remand was therefore appealable as a decree but as no appeal was preferred by the plaintiff it became conclusive between the parties". In this case "the suit was decreed because the trial court was of opinion that the defendant was hit by the proviso to Sec. 14(3) of the Rent Control Act of 1950. The appellate court reversed the decree because in its opinion the proviso to Sec. 14 (3) was not applicable, and thereafter remanded the case to the trial court. Therefore the order of remand must be taken to have been passed under Order 41 Rule 23. So it was appealable under Order 43, r. 1(U)". It was further held "When the appellate court purports to act under Order 41, Rule 23 the order of remand is appealable even though it is passed irregularly." 8. Mr. Dutt refers to several other decisions including AIR 1960 SC 941 which laid down that the points decided by interlocutory order of a single Judge can be canvassed in Letters Patent Appeal. Mr. Dutt refers to several other decisions including AIR 1960 SC 941 which laid down that the points decided by interlocutory order of a single Judge can be canvassed in Letters Patent Appeal. This decision also does not help Mr. Dutt because we are not at the moment hearing an appeal against the judgment passed by Mookerjee, J. who passed the interlocutory order. Mr. Dutt draws our attention to the decision reported in (7) AIR 1950 Calcutta 510, Sm. Rajlakshmi Dassi and others v. Banamali Sen and another which laid down "There is no justification for the appellate court to send back for the decision of the trial court a question which is entirely a question of law". Considering the facts and circumstances of the case and decisions referred to above, we are of the opinion that the order of remand passed by Mookerji, J. is a judgment within the meaning of Cl. 15 of the Letters Patent and as such it is appealable. And that being so, no appeal having been preferred against the said order we cannot now in a Letters Patent Appeal against the judgment delivered in the First Appeal which was preferred after the suit was decreed, when the same was sent back on remand, entertain the question whether the order passed by Mookerji, J. was legal or not. The contention that the order of remand passed by Mookerji, J. was not legal was also raised before M.M. Dutt, J. It was contended that the initial onus lies upon the plaintiff to prove that the defendants were licensees under him and that the plaintiff has failed to discharge the said onus. It was further contended that the case should not have been remand to the court below. M.M. Dutt, J. did not accept the contention observing that it was not within his jurisdiction to consider whether the order of remand was erroneous or not. Regarding the question of onus it was held by His Lordship "It may be pointed out that as both sides have given evidence the question has become unimportant. It is the totality of evidence which is to be considered in deciding the disputes between the parties". It appears that it was argued by Mr. Dutt before M.M. Dutt, J. that as the defendants are in exclusive possession of the disputed room they must be held to be the tenants. It is the totality of evidence which is to be considered in deciding the disputes between the parties". It appears that it was argued by Mr. Dutt before M.M. Dutt, J. that as the defendants are in exclusive possession of the disputed room they must be held to be the tenants. M.M. Dutt, J. observed "As rightly pointed by Mookerji, J. in his order of remand that it is well settled that the test of exclusive possession is not always conclusive though it is a very important indication in favour of tenancy". His Lordship further found "On the evidence of both parties that the defendants failed to prove their case of payment of Rs. 6,000/- to be liquidated or adjusted against monthly rent of Rs. 50/- in respect of the disputed room and that the receipt, Ext. 'C', was ante-dated". Mr. Dutt also contends that the remand order was not carried out properly inasmuch as the trial court did not dispose of the question of law as directed by this Court and went beyond the order of remand. We have clearly gone through the judgment of the trial court and we find that the order of remand was fully carried out by the learned court below. On going through the evidence on record and considering the facts and circumstances, we are of the opinion that the finding arrived at by the court below after the order of remand is correct and as such the appeal was rightly dismissed by M.M. Dutt, J. and we find nothing to interfere. 9. In the result, the appeal is dismissed. The judgment passed by M.M. Dutt, J. in F. A. 78 of 1972 is confirmed. There will be no order as to costs. Ray, J. : I agree.