LAWS(CAL)-1950-3-11

SM. SAROJINI DEBI Vs. RABINDRA MOHAN SEN

Decided On March 28, 1950
Sm. Sarojini Debi Appellant
V/S
Rabindra Mohan Sen Respondents

JUDGEMENT

(1.) THIS is a Rule for action to be taken under Section 28, Calcutta Thika Tenancy Act, 1949, hereafter referred to as the Act, and an application in revision against an order of a Munsif refusing to take such action. The decree to be dealt with under that section was passed in Title Suit 123 of 1989, a suit for ejectment and recovery of arrears of rent which was filed in the 3rd Court of the Munsif at Alipore. The suit was decreed on 28th June 1940 for rent only. On appeal by the landlord, the Subordinate Judge of Alipore added a decree for ejectment. There was a second appeal to this Court and on 22nd December 1948, Lodge J. dismissed the appeal. There have been subsequent proceedings under Section 47, Civil P. C. but I do not think they have any bearing on the present matter.

(2.) THE tenant applied to the original Court which passed the decree under Section 28 of the Act. The Munsif held that the case was covered by the provisions of Section 3 (1) of the Act as the landlord had sued for arrears of rent as well as ejectment but refused to take action on the application. The landlord had mentioned in his plaint that he required the land for his own use. This was quite unnecessary in the state of the law at the time the suit was filed, but might if established bring the case under ground 3 (iv) of the Act. The matter was admittedly not in issue in the suit as tried, but the learned Munsif seems to have held that this ground was established, though his judgment is not quite clear on the point. The learned Munsif also considered the question whether the case came under ground 3 (vi) of the Act, namely, that the tenant held under a registered lease which expired. The learned Munsif found some references to a lease in the judgments in the case, but was unable to conclude whether it was registered or not, and held that to bring their case under this ground the plaintiff's must substantiate their case by furnishing the lease.

(3.) THE tenant made an application in revision and obtained a rule solely on the ground that the Munsif acted without jurisdiction. Later he made an application direct to this Court for action under Section 28, evidently on the basis of the decision in Gostha Behari v. Panchu Gopal, (Civil Rev. No. 861 of 1941) in which it was decided that applications under Section 18, West Bengal Premises Bent Control Act must be made to the appellate Court, as being 'the Court which made the decree' within the meaning of the words used in that section. It was apparently assumed that the decision necessarily also covers the same phrase used in Section 28 of the Act. Whether it does so or not seems to depend on the whole interpretation of Section 28 of the Act, which question I proceed to discuss.