HARI NANDAN ROY Vs. AMBIKA KR HALDAR

JUDGEMENT

(1.) The decision of this rule obtained on February 15, 1965, by a thika tenant, Hari Nanday Roy by name, under Article 227 of the Constitution turns on the question : When the ex parte order of the thika controller under Section 5 of the Calcutta Thika Tenancy Act 2 of 1949 ejecting the thika tenant, on the ground that the term of his lease has expired within Section 3, clause (vi) ibid, has been confirmed in appeal by an appellate Tribunal under Section 27 ibid, does the Controller cease to have jurisdiction to hear the tenant's petition under Order 9, Rule 13, of the Procedure Code for setting aside the same ex parte order?

(2.) The learned Controller, by his order No. 59 dated December 7, 1964, answered the question in the affirmative and refused to set aside the ex parte order he had entered on February 22, 1964, in proceedings under Section 5 read with Section 3, clause (vi), initiated by the landlords on July 1, 1958. So did the learned District Judge qua appellate authority in a manner by summarily dismissing, on January 14, 1965, the appeal against the Controller's order aforesaid. Hence this rule.

(3.) Mr. Sinha, appearing for the petitioner, contends that, in view of Section 27, sub-section 4, of the Act, making it obligatory for the District Judge to send for the record of the case from the Controller, he has no jurisdiction to dismiss the appeal summarily, as he has done. This contention appears to be sound. It is now well held that the appellate authority, as the District Judge is, in deciding an appeal under Section 27, is not a Court but a persona designata. Its power are the powers conferred on it by the Act itself and the rules made thereunder. Mamata Ghosh v. Mrs. Charu Chandra Mandal, (1956) 60 CWN 1032, a cas Mr. Sinha cites. Necessarily, therefore, Order 41 of the Procedure Code does not apply of its own force to an appeal under Section 27. Order 41 not applying, rule 11 thereof, containing the law for summary dismissal of an appeal, does not apply too. On top of that, neither the Act nor the rules provide for a summary dismissal of an appeal. For what an appeal under Section 27 is like, Paran Chandra Porel v. Hari Priya Dassi, (1958) 62 CWN 518, which also Mr. Sinha refers me to. The conclusion therefore follows that the District Judge qua appellate authority has overstepped the limits of his jurisdiction by summarily dismissing the appeal.