Research › Browse › Judgment

Calcutta High Court · body

1978 DIGILAW 285 (CAL)

Sukumar Chandra v. Jiban Kumar Basu

1978-04-13

SUNIL CHANDRA MAZUMDER

body1978
Judgment This is an application u/s. 115 of the C.P. Code, against an order dated May 4th, 1977 passed by Sri D.K. Banerjee, District Judge, Purulia, in Misc. Appeal No. 7 of 1977 of his court by which he dismissed the appeal against an order passed by Rent Controller, on April 19, 77 in Misc. Case No.2 of 1976-77. The facts of the case are that: 2. The complainant opposite party filed an application under section 31 of the W.B.P.T. Act 1956 for restoration of the latrine against the petitioner in Misc. Case no. 2 of 77. The complainant's case was that the complaint is a tenant under the petitioner in respect of the one shop room and latrine at rental Rs.45/- which was payable according to English Calendar month. The complainant and his employee were in possession of the tenancy for more than 15 years and the latrine is a part and parcel of the tenancy. The landlord began to harass the complainant in every way and therefore, the complainant filed the complaint before the court of Chief Judicial Magistrate, Purulia u/s. 341 I.P.C. The Petitioner landlord contested the case before the Chief Judicial Magistrate, the defence was that the latrine was not a part of the tenancy. In the meantime the opposite party filed the rent control case being Misc. Case No.2 of 77 in the court of the Rent Controller, Purulia in which present petitioner appeared and filed objection. On April 6, 1977 the Rent Controller Purulia, passed an order in rent control misc. Case no. 2 of 1976-77 where by he directed the present petitioner for the restoration of the possession of the latrine to the complainant opposite party without any further delay. As against the order, the present petitioner preferred an appeal to the court of District Judge, Purulia, being Misc. Appeal No.7 of 77. The Ld. District Judie, by his order dated 4.5.77 rejected the appeal and hence, the present petition to this court u/s. 115 of the C.P. Code. It contended that the Ld. court acted beyond jurisdiction in holding that the order in question paned by the Rent Controller was an interlocutory order and not a final one and hence no relief is called for. 3. The only point for consideration is whether the Ld. It contended that the Ld. court acted beyond jurisdiction in holding that the order in question paned by the Rent Controller was an interlocutory order and not a final one and hence no relief is called for. 3. The only point for consideration is whether the Ld. District Judge acting as an appellate authority to the order passed by the Rent Controller was within the jurisdiction to hold that the order was not a final order. Findings 4. In this particular case, the order was passed by the Rent Controller under section 31 of the West Bengal Premises Tenancy Act which lays down that whoever without previous written consent of the controller or save for the purpose of effecting repair or complying with any Municipal requisition willfully disturbs any casement, annexed to any premises or removes destroys records or makes anything unserviceable provided for permanent use therewith or interfere with any service comprised in the tenancy of such premises shall, on complaint of the Party aggrieved, be liable to a fine which may extend to Rs.2000/- according to the facts and circumstances of the case. The section also lays dawn that after enquiry, controller may order immediate restoration of supply or service. 5. Section 31 therefore contains two things, firstly, the provision for imposition of penalty for certain default on the part of the landlord and secondly, it makes a provision for immediate restoration of the supply or service, which is interfered with. The order by the Rent Controller which was appealed against lays down that the enquiry was made by the B.D.O. Purulia, and the report was submitted by him which was considered by Ld. Rent Controller and the said report indicated that the latrine was part of the tenancy and it was interfered with, an order was passed on 15.2.77 directing the opposite party for restoration of the latrine immediately for use of the complainant. The order of the Rent Controller shows that the said order was duly served upon the landlord. Rent Controller and the said report indicated that the latrine was part of the tenancy and it was interfered with, an order was passed on 15.2.77 directing the opposite party for restoration of the latrine immediately for use of the complainant. The order of the Rent Controller shows that the said order was duly served upon the landlord. It appears that the landlord did not comply with the order dated 15.2.77 and thereafter, again the same order was served upon him and he was directed for restoration of possession of the latrine to the complainant tenant without loss of time and it was laid down in the order of that Rent Controller that in default, a complaint would be filed against the landlord under the appropriate section of laws. Section 29 of the Premises Tenancy Act lays down that an appeal will lie against the final order of the Controller to the District judge of a District. Now the question is whether this order is a final order. In (1) AIR 1950 PC 77. B.K. Mukherjee, J. delivering the judgment of the court said, "The expression final order has been used in contradistinction to what is known as interlocutory order and the essential test to distinguish the one from the other has been discussed and formulated in several cases decided by the Judicial committee. All the relevant authorities bearing on the question have been reviewed by this court in their recent pronouncement in (2) S. Kuppuswami Rao v. The King, 1947 FCR 180: 1946 F.C. (1)49 CrLJ 625 (PC) and the law on the point, so far as this court is concerned, seems to be well settled. In full agreement with the decisional of the Judicial committee in (3) Ram Chand Kunjimal v. Gobardhandas Vishindas 47 IA 124 : AIR 1920, P.C. 86 and (4) Abdul Rahaman v. D.K. Cassim and sons 60 I.A. 86: A.I.R. 1933 P.C. 58, and the authorities of the English Courts upon which these pronouncements were based, it has been held by this court that the test for determining the finality of an order is whether the judgment or order finally disposed of the rights of the parties. 6. To quote the language of Sir George Lowndas in Abdul Rahaman v. D.K. Cassim and sons 60 I.A. 76: A.I.R. 1933 P.C. 58. 6. To quote the language of Sir George Lowndas in Abdul Rahaman v. D.K. Cassim and sons 60 I.A. 76: A.I.R. 1933 P.C. 58. – "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". 7. The fact that the order decides an important and even a vital issue is by itself not material. "If the decision on an issue puts an end to the suit, the order will undoubtedly be a final one, but if the suit is still left alive and has got to be tried in the ordinary way, no finality could attach to the orders". In (5) A.I.R. 1958 S.C. 733 (Mahitlal Magarlal Uskar v. State of Gujarat) what is a final order and what is interlocutory order arose for consideration. In that can relying on observation of B.K. Mukherjee, J. it was held that where the judgment and order determined the principal matter it is final. 8. Applying the principle mentioned as above, it appears that the order palled by Rent Controller did not dispose of the proceeding pending before him but the landlord was given a chance to comply with the order of the controller in this case. This goes to indicate that the order was not a final one hence the Ld. District Judge, Purulia, rightly exercised his jurisdiction in not accepting the appeal against the order which is not final. Hence it is ordered that the rule be discharged. No order all to cost.