BIBHUTI BHUSAN Vs. SHIB KRISHNA

JUDGEMENT

(1.) THIS Rule was issued by my learned brother P.N. Mookerjee J. in connection with an ejectment appeal before the special Bench of the Calcutta Court of Small Causes. It appears from unreported decision produced before me in - - 'N.K. Dey & Sons v. Eastern Stock & Agency Ltd.', Civil Revn. Case No. 1749 of 1951 (Cal) (A) that P. N. Mookerjee J. appears to be of the opinion that a revision was the proper procedure in the High Court against an appellate order of the Court of Small Causes. A Division Bench has held that a second appeal is the proper procedure. The matter is before a Full Bench. As I am a single Judge, I am bound by the Division Bench decision that the procedure will be that of a second appeal but as P. N. Mookerjee J. admitted it as a Civil Revision I direct that this be treated as a second appeal. So long as the matter of Second Appeal and Civil Revision is not set at rest by the Full Bench it will be better to treat such Revision Applications as Second appeals.

(2.) THE main question is the question of condoning the delay under Section 5, Limitation Act. It appears that the change introduced by the Rent Control Act in 1950 was not noticed by the Judge of the Court of the Small Causes till this Court pointed out that in such a case a proper decree in the form laid down in Civil Procedure Cede for a decree is necessary to be drawn up by the trial Court and the appellate Court. It appears that till it was so pointed out by this Court the Calcutta Court of Small Causes had kept up its previous practice of merely having an after judgment statement on record. This may or may not have all the information required in a decree but certainly no one will call it a decree in the proper form as prescribed by the Code of Civil Procedure. The Judge of the Calcutta Small Causes Court did not know what had to be done and I do not see why the lawyers of that Court should be blamed for not knowing what more erudite persons, namely, the Judges, even did not know. It was not usual in appeals against ejectment orders from the Small Causes Court to file the after judgment statement. In the present case, as, I am told, in numerous other cases no such statement was filed. Then when the Judges realised that a decree had to be drawn up and filed they insisted upon the decree being filed. The parties were quite willing to comply with the same but technically the decree not having been filed with the memorandum of appeal the appeal had to be considered as filed on the day on which the copy of the decree was actually filed. That required an exercise of the discretionary power of the Judges under Section 5, Limitation Act. I cannot conceive of a worthier case where such discretion could be used when large number of persons would otherwise be penalised because neither the Bench nor the Bar had paid attention to changes in the law which, if I may say so without disrespect, is the order of the day now in this State at least. Every day, laws are changing and full effect of such changes are very often not realised till some Court points the same out. It was not even the Judges who discovered what had to be done. It was the High Court which pointed it out. In such a case bona fide error on the part of lawyers and unintentional delay on the part of appellants might properly have been condoned by the Court. A little exercise of common sense would have saved the Court from doing injustice to a large number of persons and flooding this Court with unnecessary revisional work.

(3.) THE appeal will now go back to the Court of Small Causes for hearing on the merits by the Special Bench. Costs will abide the result. The appeal is thus disposed of.