HARI PROSANNA DUTTA Vs. HIRALAL SURENDRA KUMAR

JUDGEMENT

(1.) This is an appeal by the Plaintiffs in a suit for ejectment.

(2.) The Defendants were tenants of certain premises situated in ainthia in the district of Birbhum under a lease for a term of one year, namely, from Agrahayan 1350 B.S. to Kartick 1351 B.S. On the expiration of the term of the lease the land lord did not accept rent and there was no holding over by the tenants of the said premises. The tenants, therefore, became trespassers in the eye of law. On that footing on November 13, 1945, the Plaintiffs instituted a suit for ejectment but in the mean time the West Bengal Rent Control Order, 1942, had come into force and permission of the controller had become necessary for the institution of the suit. Such permission was obtained by the Plaintiffs. The trial court was of opinion that the permission so obtained was not valid and on this ground dismissed the Plaintiffs' suit. Against the judgment of the trial court the Plaintiffs took an appeal to the lower appellate court. The lower appellate court was of a contrary opinion and held that the permission was validly obtained. In this view it set aside the judgment of the trial court and remanded the suit to the trial court for the purpose of finding out whether, in fact, the Plaintiffs required the premises bona fide for their own use and occupation. An issue was framed for this purpose. When the matter went back the trial court was of opinion that as the West Bengal Rent Control Order had expired by lapse of time the bona fide requirement provided therein was no longer necessary to be proved by the Plaintiffs. It held, however, that such requirement had been established. In this view it decreed the Plaintiffs' suit. The Defendants took an appeal to the lower appellate court. The lower appellate court by its judgment dated March 11, 1950, differed from the view of the trial court on the question of the existence or otherwise of bona fide requirement on the part of the Plaintiffs. The lower appellate court also held that in view of the terms of the order of remand it was not open to the Plaintiffs to assert that the life of the West Bengal Rent Control Order had run out and that as such bona fide requirement need not be proved by the landlord. In this view the lower appellate court allowed the appeal and dismissed the Plaintiffs' suit. The Plaintiffs have accordingly appealed to this Court.

(3.) Mr. Mukherjee, appearing on behalf of the Plaintiff-Appellants, has first contended that the view taken by the lower appellate court that the order of remand made by the lower appellate court on the previous occasion concluded the matter, is not correct, inasmuch as no appeal lay against the order of remand made by the lower appellate court on the former occasion. This contention seems to be correct. The order for remand was an anomalous one. The lower appellate court directed the framing of an issue and also directed that the whole suit be heard. Such an anomalous order of the lower appellate court was not appealable. Section 105 of the Code of Civil Procedure did not, therefore, preclude the Plaintiffs from agitating the question whether the bona fide requirement as provided for in Section 10(2), proviso (c), of the West Bengal Rent Control Order was established or not. The first contention of Mr. Mukherjee must, therefore, succeed.