S.N. GUHA ROY Vs. KANAI LAL PAUL

JUDGEMENT

(1.) This Rule arises on an application under S. 115 of the Code of Civil Procedure, read with Art. 227 of the Constitution of India and is directed against the order passed by the learned Munsif, 2nd Court, Sealdah, acting as the Thika Controller, allowing an application under S. 151 of the Code of Civil Procedure and setting aside the earlier order allowing the landlord to re-enter on the ground of abandonment by the thika tenant. In Misc. Judicial Case No. 40 of 1975 the petitioner filed an application under S. 9 of the Calcutta Thika Tenancy Act for entering on the holding on the ground that the thika tenant voluntarily abandoned his holding without notice to the landlord and without arranging for the payment of his rent which fell due. Along with the application necessary notice in the prescribed forms was filed. The notice was duly published at the holding and after examining the landlord the application was allowed by order dated 5th July, 1975. On 7th of Aug., 1975 an application was filed by the thika tenant under S. 151 of the Code of Civil Procedure praying for setting aside the ex-parte order dated 15th July, 1975. After hearing both the parties the application under S. 151 was allowed and the order dated 5th July, 1975 was set aside. Being aggrieved, the landlord has come upto this Court.

(2.) Mr. Nanigopal Sarkar, learned Advocate appearing on behalf of the opposite party, in the first place, contends that the application is hopelessly barred by limitation and even assuming that the application may be treated as one under Art. 227 of the Constitution of India, after the amendment of Art. 227 such an application challenging an order of the Thika Controller does not lie. It is true that on the face of it the application is barred by limitation. But when the petitioner did not file any separate application under S. 5, in the application reasons for delay in filing the same have been mentioned. Again, on 21st Sept., 1978 an application was filed under S. 5 of the Limitation Act stating the very same facts which were stated in the original application. If the application be treated as one under Art. 227 then for filing such an application there is no period of limitation. The question is whether such an application is maintainable. In a very recent decision reported in 1978 CHN 831 in Sujata Maitra Vs. State of West Bengal & ors)., it has been held "there may be cases where an appeal from an order of a tribunal or authority is provided to a court within the hierarchy of courts, established by statutes, such courts exercising appellate power in their turn, subordinate and inferior to the High Court, and judgments of such courts may be subject to appeal or revision by the High Court. In such cases, the judgments of such subordinate courts also are subject to judicial interference under Art. 227 in appropriate circumstances'. Relying on this decision I am of opinion that this application is maintainable.

(3.) Mr. Ashokc Chandra Guha, learned Advocate appearing on behalf of the petitioner, challenges the order very much on the ground that an application under S. 151 of the Code is not maintainable as the Thika Controller is not a court, but a persona designata and that being so, S. 151 of the Code of Civil Procedure is not applicable to a case pending before the Thika Controller. Moreover, any order passed by a Thika Controller is appealable under S. 27 of the Act. On that ground also an application under S. 151 for setting aside an order passed by the Thika Controller is not maintainable. In support of his contention Mr. Guha relies on a decision reported on 68 CWN 1064 (Sibani Rani Dutta Vs. Balai Chandra Dutta & ors.) In this case, it has been laid down that "where the Code itself makes an express provision for a particular remedy, the party, who does not avail of such remedy, cannot, as a rule, be allowed to resort to S. 151, for, to do so would be to defeat the object and utility of the Code itself'. In the case before their Lordships an ex parte, order allowing an application for setting aside a sale under S. 174(3) of the Bengal Tenancy Act was challenged. It was held that the said order is appealable and that being so, S. 151 does not lie. In the present case also, as has already been stated, the order passed by the Thika Controller under S. 9 is appealable. Again, the tenant could take steps under sub-s. (3) of S. 9 of the Act. In the present case nothing has been done and as such Mr. Guha contends that application under S. 151 is not maintainable. Mr. Guha also relies on a decision reported in AIR 1977 Cal. 187 (1977 CHN 87 (Mrs. Namita Dhar Vs. Dr. Amalendu Sen) where myself sitting with B.C. Ray, J held that "an appeal lay against a particular order. But instead of preferring an appeal an application was filed under Sec. 151. That application was rejected. Against the said order no revision lay to this Court." Thus, on a consideration of the facts of the case and the legal position I am of opinion that the application under Art. 227 is maintainable and that being so, there is no question of limitation. Moreover, the delay in filing the application has been sufficiently explained. Further I find that the application which has been filed under S. 151 of the Code before the Thika Controller is not maintainable.