SEKHAR CHANDRA LAW Vs. GAYA PRASAD SHAW

JUDGEMENT

(1.) THIS is a second appeal arising out of a suit for ejectment from the house premises valued at Rs. 631. 50 np. , instituted on February 1, 1957 in the "court of Small Causes, Calcutta after the West Bengal Premises tenancy Act, 1956 came into force. The suit was decreed by the learned Judge, Second Court of Small Causes, Calcutta on February 21, 1959 against which the tenant preferred a special appeal in the said Court of Small Causes, which was allowed on March 8, 1960 and the judgment and decree of the Court of the first instance were reversed. The present second appeal is preferred on June 3, 1960.

(2.) MR. Pashupati Chunder, the learned advocate for the appellant firstly submitted that the principles laid down by S. K. Sen and N. K. Sen, JJ. in the case of (1) Jamuna Bala v. Manmotha, 64 C. W. N. 678 and by P. N. Mookerjee and D. Basu, JJ. in the case of (2) Jitendra Bhose v. Radharani, 67 C. W. N. 1092 would not apply to the facts in the instant case and should not be further extended, because in the said two reported decisions the tenants took the special appeals to the Court of Small Causes which were dismissed; against which the second appeals were taken by the tenants to this Court; whereas in the instant case, the tenant succeeded in the first appellate Court and the instant appeal is by the landlord. In my judgment, it does not make any difference in laying down the principle as to the forum of the appeal whether the appellant be the tenant or the landlord and/or whether the judgment of the Court of appeal below is a judgment of affirmance or a judgment of reversal. Therefore this Court would be the proper forum of appeal from the decree of the trial court, in such circumstances.

(3.) SECONDLY, it is also the settled law that a second appeal would lie to this Court against the decree (decision) passed without jurisdiction and Mr. Chunder cannot complain on that score. Lastly, it remains to state what should be the form of the order or directions in such cases which are given as follows:- (1) The decision of the Court of appeal below would be set aside, as having been passed without jurisdiction. (2) Instead of recording, on the memorandum of appeal presented to the Court of appeal below, an order for return for presentation to the proper court viz. ; to this Court, the aforesaid memorandum, which is on the records now in this appeal in this Court. , be directed to be received and registered as a First Appeal in this Court. (3) But the said registration of the appeal as a First Appeal would be subject to the conditions that the learned Advocate for the respondent in this appeal would file a fresh Vokalatnama within 10 days and after the filing of the same he would effect necessary corrections and consequent amendments on the Memorandum, and would pay further court fees, if required under the law. The appeal is to be certified by the Stamp Reporter thereunder as in form. (4) Following the unreported bench decision in Appeal from appellate Decree No. 438 of 1959 (3) (Mahalaxmi Bank v. Commercial Properties), the delay in the matter of presentation of the appeal is, in the circumstances of the case and in like circumstances should be condoned under the provisions of section 5 of the Indian Limitation Act. (5) The appeal will thon proceed as a First Appeal in this Court in accordance with law ; and the Bench, dealing with First Appeals might be approached for further directions and orders including the stay of execution. This appeal is accordingly allowed. Costs of this appeal would abide the result of future litigation.