GOBORDHAN DUTTA Vs. PROMOTHA NATH

JUDGEMENT

(1.) This is the landlords second miscellaneous appeal and there is also an application in the alternative under Section 115, Civil P.C. -- arising out of the tenant's application under Section 6, West Bengal Premises Rent Control (Temporary Provisions) (Amendment) Act (West Bengal Act 62 of 1950) read with Section 18(1), West Bengal Premises Rent Control (Temporary Provisions) Act 1950 (West Bengal Act 17 of 1950). The application was allowed by the trial Court and the landlords' appeal against that decision was dismissed by the lower Appellate Court not upon the merits but upon the preliminary ground that under the law no appeal lay against an order passed under Section 6, Rent Control (Amendment) Act, 1950 or Section 18(1), Rent Control Act, 1950. On the merits the learned Subordinate Judge expressed himself tentatively in favour of the appellants-landlords but as in his view the appeal before him was incompetent he did not pursue that matter to its final conclusion. Against the dismissal of their appeal by the learned Subordinate Judge the landlords have preferred this second miscellaneous appeal and in the alternative they have also filed an application under Section 115, Civil P.C. for revision of the adverse orders of both the Courts below.

(2.) The suit for ejectment was instituted on 13-5-1949 and the relevant ground under the Rent Control Act of 1948 (West Bengal Act 37 of 1948) which was then in force and was, therefore, applicable to the case, was 'ipso facto' determination of the defendant's tenancy on account of non-payment of rent for mire than three months, or, rather, three consecutive months, that is the ground under Section 12(3) of the said Act of 1948. The suit was decreed ex parte on 28-8-1950 but admittedly the defendant remained in possession in spite of the said decree and after an unsuccessful attempt to get the decree set aside under Order 9, Rule 13, Civil P.C. the tenant-defendant made an application under Section 18(1), Rent Control Act, 1950 on 20-1-1951. This application was registered as Misc. Judicial Case No. 16 of 1951 and was eventually allowed by the learned Munsif by his order dated 10-2-1951 which ran as follows:

(3.) We have already said that the learned Subordinate Judge expressed no final opinion on the merits of the tenant's application under Section 6, Rent Control (Amendment) Act, 1950 and Section 18(1), Rent Control Act, 1950 although his tentative observations were against the same, and he dismissed the landlords' appeal only on the ground that it was not maintainable in law. If, therefore, we find that that appeal was not incompetent we would remit the same to the learned Subordinate Judge for consideration. on the merits. In case, however, we agree with the learned Judge in his view that the appeal before him was not competent, the landlord's appeal before us and his application for revision against the decision of the learned Subordinate Judge must fail. But we. shall then have to consider the landlords' revisional application under Section 115, Civil P.C. so far as it relates to the learned Munsif's order.