HABUL CHANDRA MULLICK Vs. JHIMI BAJORIA

JUDGEMENT

(1.) This is an application under Sec. 115 of the Code of Civil Procedure directed against an order passed by Sri S. Bagchi, Judge, City Civil Court, Calcutta, dismissing an application under Sec. 17D of the West Bengal Premises Tenancy Act.

(2.) The Plaintiff filed a suit for ejectment on the ground of default. The said suit was decreed by the Judge, City Civil Court. Being aggrieved the Defendant preferred an appeal before this Court. The appeal was dismissed on May 28, 1969. On an undertaking made by the Defendant, he was allowed time to vacate the premises by the end of May 1971. On January 10, 1970, the Petitioner filed an application under Sec. 17D(1)(A) of the West Bengal Premises Tenancy (Second Amendment) Act before the learned Judge, City Civil Court, for setting aside the decree. The learned Judge granted several adjournments for enabling the Petitioner to produce all necessary challans for the purpose of showing that the Petitioner was not in arrears. The Petitioner, however, produced a number of challans, but as some challans were missing he could not produce all. The learned Judge fixed December 14, 1971, as the date for producing the remaining challans and passed an order to the effect that in default the application would stand dismissed. The hearing of the application was fixed on January 6, 1972. As the Defendant could not produce the remaining challans by December 14, 1971, the application of the Petitioner was dismissed. It is submitted by Mr. Palit, the learned Advocate appearing on behalf of the Petitioner, that the learned Judge was wrong in dismissing the application. The learned Judge, according to. the provisions of the Act, was bound to determine the arrears, if any, and to direct the Defendant to deposit those arrears in Court within a certain specified time. It is true that the Defendant took several adjournments for producing the remaining challans, but even then the learned Judge ought not to have dismissed the application. Even in the absence of production of all the challans, the learned Judge was in a position to determine the arrears.

(3.) Mr. Lahiri, appearing on behalf of the opposite party, in the first place submits that as an appeal was preferred by the Petitioner in this Court and, as the said appeal has been dismissed,' the original decree has been merged into the appellate decree and, that being so, the Defendant could, not have made an application before the trial Court. In support - of the contention Mr. Lahiri refers to a decision in Smt. Chandra Kala Devi v/s. The Central Bank of India Ltd. : 62 C.W.N. 881, but the decision referred to above is not really on the point at issue in the present case. Exactly on this point there is a decision in Ratanlal Singh v/s. Jezer Bros. Pvt. Ltd. : 75 C.W.N. 784. In this case it has been held - -in case where the appellate Court merely dismisses the appeal, the principle of merger has no application and also in cases of execution of the original decree except as to limitation will not affect an executable decree passed by' an inferior Court insofar as its execution is concerned. The position would be otherwise if the decree is modified or varied by such appellate authority as in such even the original decree Will be in executable. The Court in this Sec. 17D under its provision means the Court of the first instance and such Court is given powers not only to set aside the decree but also to dismiss the suit which is to follow as a matter of course. In case where the appellate Court dismisses the appeal against the decree for recovery of possession, such decree would be in fructuous in view of the dismissal, of the suit itself. In this connection reference may be made to the explanation of Sec. 17D. The explanation reads as follows: