NIROTAM DAS Vs. LACHMI NARAIN

JUDGEMENT

(1.) The hearing of this appeal was referred by our brother Aikman to a Bench of two Judges, inasmuch as he had some doubt as to the propriety of the decision of our brother Richards in the unreported case of Lachmi Narain v. Nirotam Das (Second Appeal No. 256 of 1905, decided on the 3rd of July of the present year). The question arises under these circumstances: Nirotam Das sued for arrears of rent in the Court of an Assistant Collector of the second class and obtained a decree. An appeal was preferred to the Collector under the provisions of Section 176 of the North-Western Provinces Tenancy Act, Act II of 1901. On appeal the Collector confirmed the decree of the Assistant Collector. A second appeal was preferred to the District Judge under Section 180 of the Act, with the result that he also confirmed the decrees of the Courts below. Now an appeal from the decision of the District Judge has been preferred to this Court, and a preliminary objection is raised to the hearing of the appeal, namely, that no third appeal lies to this Court. The language of Section 182 is as follows: "A second appeal shall lie to the High Court from the decree in appeal of a District Judge in accordance with the provisions of Chapter XLII of the Code of Civil Procedure. It is contended on behalf of the appellant that the words "second appeal" as used in this section include a "third appeal" and that therefore the appellant is entitled to appeal to this Court. We are of opinion that this contention is not sound. The Legislature has used a word in the section which is clear and unequivocal, namely, "second," and we do not think we should be justified in giving to that word "second" a meaning which it does not possess, namely, "third." We must remember that an appeal is the creation of Statute, and no person is entitled to appeal unless the right to do so has been expressly given by Statute. We think that the expression "second appeal," as used in this section, is obviously of limited significance and does not include third appeals. It will be noticed that in the latter part of the section the words used are "from the decree in appeal of a District Judge" not "from the decree in appeal or second appeal of a District Judge." Under the Act, in cases which come before an Assistant Collector of the second class, an appeal is allowed first to the Collector and then to the District Judge. So in the case in which a suit which comes in the first instance before an Assistant Collector of the first class an appeal is given by Section 177 to the District Judge and under Section 182 to the High Court. We think that Section 182 was intended to meet, and was confined to, suits which were instituted in the Court of an Assistant Collector of the first class or of a Collector, and was not intended to embrace suits instituted before an Assistant Collector of the second class, most of which are very petty in their nature; for example, there is involved in this appeal the sum of Rs. 5 odd only. We agree in the view which was taken by our brother Richards in the case to which we have referred. We may point out that when the Legislature gave permission to institute a third appeal in an Act which was passed two days after Act No. II of 1901, namely, Act No. III of 1901, they used the expression "third appeal." We refer to Section 213 of the Land Revenue Act. For these reasons we allow the preliminary objection and dismiss the appeal with costs.