SUNIL BARAN ROY CHOUDHURY Vs. PURNA CHANDRA CHANDRA

JUDGEMENT

(1.) Two points were raised in this Rule. The first is that the learned Judge acted wrongly in passing an order under section 14(4) of the West Bengal Premises Rent Control Act of 1950. The second point urged is that in any case the Court of Appeal was wrong in making the decree. ' It appears that the order under section 14(4) directing the defendant to put in arrears was passed on 21st May, 1951, and the deposit not having been made ultimately the defence was struck off by the end of 1951. The suit was taken up thereafter for ex parte hearing and was dismissed by the learned Judge on the finding that there had been no proper service of the notice. On appeal by the plaintiff it was decided by the Court of Appeal on contest that the notice had been properly served and that the ground of waste and deterioration of the demised premises had been made out.

(2.) As regards the first point it is important to notice that an appeal lay against the order striking out the defence. No appeal having been preferred that order has become final and cannot any longer be questioned. We were asked to exercise our special jurisdiction under Art. 227 of the Constitution of India and to interfere with the order at this stage. In our judgment that would be an abuse of jurisdiction. Special jurisdiction which this Court has under Art. 227 is to be used to remedy defects of jurisdiction when no other remedy is possible in law. In this case the defendant had his remedy. He did not choose to take recourse to that remedy. It will be abused if we are to help him by acting under Art. 227 of the Constitution. The first point therefore fails.

(3.) As regards the second point, the learned Advocate tried to convince us that the Judges in the Court of Appeal came to a wrong finding as regards the service of notice. In our judgment there was evidence which the Court could and did consider and it will not be right for this Court to investigate the sufficiency of the evidence as if it was a Court of Appeal. There is no justification for saying that because of the finding on the evidence that there was proper service, there has been material failure of justice.