NARAYAN CHANDRA BOSE Vs. SUKHENDU KUMAR MUKHERJEE

JUDGEMENT

(1.) This is to consider a revisional application under Art. 227 of the Constitution of India arising out of the order impugned dated 29th April, 2004 passed by Sri Devi Prasad Dey, the learned Additional District Judge, Fast Track Court No. 1, 24 - Parganas Barast in connection with Civil Revision No. 102 of 2003 which again arose out of the order No. 70 dated 5th July, 2003 passed by S.K. Sharma, the learned Civil Judge (Junior Division) at Basirhat in connection with Title Suit No. 111 of 1990 in disposing of the application under Sections 17(2) and 17(2A) of the West Bengal Premises Tenancy Act.

(2.) At the very outset of the hearing the learned Counsel for the opposite party has challenged the maintainability of the application. Thus, Mr. Ganesh Srivastava, the learned Counsel appearing for the opposite party submits that the present application under Art. 227 of the Constitution of India is virtually a second revision which is 44 not maintainable in terms of provisions of Sec. 115A (3), (4) of the Code of Civil Procedure as amended by West Bengal Act 15 of 1988 which came into force with effect from 1.2.1989. Mr. Hari Narayan Mukherjee, the learned Senior Counsel appearing for the petitioner/plaintiff/landlord submits that both the learned Courts below had relied on the notebook of the plaintiff to determine the quantum of rent. Mr. Mukherjee has also drawn my attention to the certified copy of the said notebook.

(3.) I have considered the submissions of the learned Counsels for both the parties. It appears from the State of affairs of the record that initially the learned trial Court while disposing of a petition under Sec. 17(2) and 17(2A) of the W.B.P.T. Act passed the order in favour of the plaintiff/landlord. Against the order a revisional application was moved before the District Court and the order of the trial Court was set aside and the matter was remanded back to the learned trial Court. Thereafter the learned trial Court on hearing the parties disposed of the petition determining the quantum of rent at Rs. 180.00 per month. Against that order of the learned trial Court again a revisional application was moved (vide Civil Revisional Application No. 102 of 2003) and in disposing of that application the learned Additional District Judge passed the order impugned dated 29th April, 2004 having affirmed the order of the learned trial Court and against the order the plaintiff petitioner has preferred this application under Art. 227 of the Constitution of India before this Court. Mr. Mukherejee has frankly admitted that the application under Art. 227 of the Constitution of India is virtually a revisional application. Thus, by all sense, the present application for consideration before this Court is a second revisional application, first having been filed before the learned District Judge and disposed of there by the order impugned. Admittedly, the Sub-sections (3) and (4) of Sec. 115A of the Code of Civil Procedure came into force with effect from 1.2.1989. Also admittedly, the first revisional application and the present petition under Art. 227 of the Constitution both were filed after Sub-sections (3) and (4) of Sec. 115A of the Code came into force. Sec. 115A of the Code deals with the power of District Court as regards the revisional and it is clearly stated there that a District Court may exercise all or any of the powers which may be exercised by the High Court under Sec. 115 of the Code. But, in fact Sec. 115 of the Code does not deal with the power of the District Court in revision only but the Subs-sections (3) and (4) of that Sec. have circumscribed the power of the High Court indirectly. Those Sub-sections (3) and (4) read as under:-