RAMENDRA KUMAR DUTTA Vs. SHIB KUMAR DAS

JUDGEMENT

(1.) On February 11, 1956, the Deputy Rent Controller, Barrackpore, passed an order permitting the opposite party, Shib Kumar Das, to withdraw a sum of Rs. 6,300 which had been deposited as rent of premises No. P. 131 Rashtraguru Avenue, Dum Dum, by the tenant, the Director of Rationing and Distribution. This was in spite of the fact that the Rent Controller of Barrackpore had, on a previous application by the said Shib Kumar Das for withdrawal of the amount decided that his prayer for withdrawal of the said amount by him alone could not be granted and that the matter would have to be finally decided after the decision of a civil suit pending between Shib Kumar Das and Umendra Kumar Dutta. Admittedly, Umendra having since died, his legal representatives have been substituted in that suit. The other peculiarity of the order passed by the learned Deputy Rent Controller on February 11, 1956, was that this order was passed without any notice on Umendra. When this came to the knowledge of Umendra, he made an application for review of that order of February 11, 1956. The learned Bent Controller issued a notice on Shib Kumar Das to refund the amount of Rs. 6,300 or to show cause why he should not be made to refund. Shib Kumar Das showed cause and thereafter the learned Rent Controller has passed an order which can hardly be considered satisfactory. After mentioning certain circumstances, he has said that the proper remedy for the 1st party, that is, Umendra and others was to take recourse to civil suit for recovery of the amount to which they might be entitled under orders of a competent civil court. He refrained from saying in so many words that the application for review was rejected.

(2.) It would be reasonable, however, to take this order as an order rejecting the application for review. That was the view which was taken by the advisers of Umendra and they preferred an appeal against the order of rejection in the Alipore Court. That appeal has been dismissed by the learned Second Additional Subordinate Judge, Alipore, he being of opinion that an appeal does not lie. If the order had been an order rejecting an application passed by a civil court, the result of the provisions of Order XLVII, Rule 7 of the Code of Civil Procedure would, no doubt, have been that the order rejecting an application for review would not be appealable. The learned court below was of opinion that the consequence of the provisions of Sub-section (6) of Section 32 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, were that all the provisions of Order XLVII of the Code of Civil Procedure applied to applications for review. If that were correct, it would, in my opinion, also follow that that would restrict the scope of appeal under the first Sub-section of Section 32 of the Rent Control Act of 1950, namely, "from every final order of the "Controller an appeal shall lie". Before one can say, however; that the wide scope of these words has been restricted by Sub-section (5) of Section 32, it is proper to examine the words of Sub-section (5) closely. That Sub-section is in these words:

(3.) It is worth noticing that as regards the exercise of the power of review, it is only the exercise of that power which has been made subject to conditions as laid down in that order. On behalf of the Petitioner, Mr. Roy Chowdhury has urged that the provisions of Rule 7 of Order XLVII that "an order of the court "rejecting an application shall not be appealable" is not a condition to the exercise of the power of review and consequently nothing in Sub-section (6) of Section 32 of the Rent Control Act of 1950 has the effect of restricting the scope of appealability under Sub-section (1) of Section 32. In our judgment, this contention should be accepted. The very first rule of Order XLVII lays down the conditions under which any person may apply for review. Rule 2 contains provisions as to whom the application may be made. Rule 3 provides about the form of applications for review while Rule 4 lays down that "where it appears to the court that there is not "sufficient ground for a review, it shall reject the application." Sub-rule (2) of Rule 4 provides similarly that "where the court is of "opinion that the application for review should be granted, it "shall grant the same" subject to provisions (a) and (h) which lay down conditions under which no such application shall be granted. Rule 5 provides that "the Judge or Judges or any one "of the Judges, who passed the decree or made the order, a review "* * * and no other Judge or Judges of the court shall hear the "same." Rule 6 provides that "where the applications for a "review is heard by more than one Judge and the court is "equally divided, the application shall be rejected" and "where "there is a majority, the decision shall be according to the "opinion of the majority." Then comes Rule 7 which lays down that "an order of the court rejecting the application shall not "be appealable; but an order granting an application may be "objected to" on certain grounds. Rule 8 provides for registration of applications granted while Rule 9 provides that "no "application to review an order made on an application for a "review * * * shall be entertained." I am unable to see how the provisions of Rule 7 can be said to be a condition to the exercise of the power of review. This rule comes into operation not when the application for review is being considered but when it has been rejected or granted. We have, therefore, come to the conclusion that the Petitioners' contention that Sub-section (5) of Section 32 of the West Bengal Rent Control Act of 1950 has not the effect, as was thought by the learned court below, is right and that an appeal does lie even against an order of the Rent Controller rejecting an application for review.