SUKHENDU BIKASH BARUA Vs. HARE KRISHNA DE

JUDGEMENT

(1.) This is an appeal by the defendant and is directed against a judgment of Chunder J., dated 28-3-1952.

(2.) The facts are that In September, 1949, the plaintiffs respondents initiated proceedings under Section 41 of the Presidency Small Cause Courts Act alleging that they required the disputed premises for their own use. The proceedings were numbered as Suit No, 10455 of 1949. The suit was decreed on contest by Mr. B.P. Bakshi, learned Judge, 4th Bench, his decision being dated 28-8-1949. Against that judgment an appeal was taken by the defendant to the Special Bench. The Special Bench dismissed the appeal on 23-3-1951. Thereafter the defendant filed a petition purporting to be under Section 115, Civil P. C. and Article 227 of the Constitution. A Rule was issued being Civil Rule No. 1437 of 1951. The Rule came up for hearing before Chunder J. who by his judgment dated 28-3-1952, discharged the Rule. Before the learned Judge two points appear to have been raised, namely, (1) whether the question whether the premises were required for the bona fide use of the landlords must be judged by a reference to the provisions of the Rent Control Act, 1948, or the Rent Control Act, 1950. (2) Whether the requirement contemplated by the Rent Control Act must be requirement of any one or more of the landlords. Chunder J. overruled the contentions on behalf of the petitioner and discharged the Rule as I have already stated. Against the judgment pronounced by Chunder J. on 28-3-1952, the defendant has filed the present appeal under Clause 15 of the Letters Patent. The appeal has come up before us for disposal. Mr. Dutt, learned Advocate on behalf of the respondents, has raised a preliminary objection that the appeal is incompetent.

(3.) The question is whether an appeal against an order passed in an application purporting to be under Section 115, Civil P. C. and Article 227 of the Constitution lies under Clause 15 of the Letters Patent.