SASHI BHUSAN HAZRAH Vs. SRIMATI DENO MOYEE DASI

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from a judgment of Mr. Justice Teunon.

(2.) The plaintiff-appellant instituted a suit for arrears of rent. The defendant pleaded that rent was not payable at the rate claimed. The Court of first instance decreed the claim in full. Upon appeal the Subordinate Judge set aside the decree of the primary Court and remanded the case for a fresh trial, with full liberty to the parties to adduce whatever evidence they might like to bring forward in support of their respective allegations. The plaintiff preferred an appeal to this Court against the order of remand. The appeal was heard by Mr. Justice Teunon and was dismissed. The present appeal is directed against the decision of Mr. Justice Teunon.

(3.) The suit was valued at less than one hundred rupees. Consequently under Section 153 of the Bengal Tenancy Act, no appeal lay against the order of the Subordinate Judge, unless it was established that the Subordinate Judge had by his order determined one or more of the special questions mentioned in that section. The decision of this Court in the case of Gagan Chand Sardar v. A. Casperz 4 C.W.N. 44 shows that the term order as used in Section 153 is not limited to final orders but includes interlocutory orders, such as orders of remand. Consequently it was obligatory upon the appellant before Mr. Justice Teunon to show that the order of the Subordinate Judge had decided one or more of the special questions. But on a perusal of the order of the Subordinate Judge it is clear that he has not only not decided any of the questions mentioned in Section 153, but has left open all the questions in controversy between the parties and remanded the case for re-trial, as, in his opinion, material evidence had been erroneously excluded by the Trial Court. Consequently, the appeal to this Court was incompetent, and should have been dismissed on that ground by Mr. Justice Teunon.