SRIMATI CHARUSILA DASI Vs. ABHILAS BAURI

JUDGEMENT

(1.) The appellant in these three appeals filed three applications under Secs.105, Bengal Tenancy Act, before the Revenue Officer of Rampurhat in the district oF.B.irbhum for settlement of fair and equitable rent of certain holdings. Before the Revenue Officer she raised the following issues under Secs.. Are the holdings in dispute, though recorded as mokrari in the Record of Rights, occupancy holdings? 23 C. 723 (F.B.) Are the rents recorded in the Record of Rights the existing rent of the holdings? 23 C.L.J. 281, A.I.R. 1916 Cal. 413 : 33 Ind. Cas. 148 : 43 C. 603, 20 C.W.N 428 : 23 C.L.J. 281 (F.B.) Is she entitled to get additional rent for excess area? She paid court-fee of 12 annas for each of the holdings mentioned in her application and Rs. 20 for each of the three applications. The Revenue Officer decided against her. She filed three appeals before the Special Judge oF.B.irbhum and paid the same court-fee on the memorandum of appeals as she did on her applications before the Revenue Officer. The learned Judge treated the appeals as appeals arising out of suits under Secs.106, Bengal Tenancy Act, and demanded additional court fees. The appellant having failed to comply with the order of the Judge, her appeals have been dismissed. She appeals to this Court. In her memorandum of appeals to this Court, she has paid the same court-fees as before the Special Judge.

(2.) During the pendency of the appeal to this Court respondent No. 9 in S.A. No. 1069, respondents Nos. 17, 18, 45, 48, 72 and 73 in S.A. No. 1070, respondents Nos. 10, 13, 21, 41, 44, 59, 62, 66 and 94 in S.A. No. 1071 died. Their heirs were not substituted within the time prescribed by law. The appellant's claim for fair rent in respect of the following Khatians is, therefore, dismissed.

(3.) A preliminary objection has been taken to the hearing of these appeals on behalf of the respondents on the ground that the order of the learned Special Judge though in form an order of dismissal, is in substance an order of rejection of memorandum of appeals, and no appeal lies against such an order. In order to determine whether an order dismisses an appeal or simply rejects it, the substance and not the form of the order is to be considered. The order of the Special Judge is not accurately expressed because it states that the appeals are dismissed and not that the memorandum of appeals are rejected. It is, however, clear that the intention of the Judge was to reject the memorandum as they were not properly stamped. The learned Advocate for the appellant, however, contends that an appeal lies against an order rejecting a memorandum. Now an appeal to this Court against the decision of the Special Judge lies under Secs.109-A (now 115-0), Clause 23 C.L.J. 281, A.I.R. 1916 Cal. 413 : 33 Ind. Cas, 148 : 43 C 603, 20 C.W.N 428 : 23 C.L.J. 281 ( F.B.), Bengal Tenancy Act. That clause lays down that such an appeal is subject to the provisions of Order XLII, Civil Procedure Code. Order XLII of the Code lays down that the rules of Order XLI shall apply so far as may be to appeals from appellate decrees. The order appealed against does not come under Rule 3, Order XLI, which provides for rejection of memorandum of appeal. But by Section 107, Clause 23 C 723 (F.B.) of the Code, the Appellate Court has the same powers as the Court of original jurisdiction in respect of suits instituted therein. By Rule 11, Order VII of the Code, the trial Court has been empowered to reject a plaint if the plaint is not properly stamped and the plaintifF.B.eing required to supply the requisite stamps fails to do so. The Special Judge, therefore, had power to reject the memorandum of appeal for failure of the appellant to supply the requisite stamps. The question then is whether the order is appealable. In Jnanada, Sundari Shah V/s. Madhab Chandra , Suhrawardy. J observed: " Section 107 (2) invests an Appellate Court with the same powers as are conferred on a Court of original jurisdiction. It does not purport to give the order passed by an Appellate Court the same effect as an order passed by an original Court of like nature. Section 2 expressly says that "decree" shall be deemed to include the rejection of a plaint. If it was the intention of the Legislature to include within the definition of decree an order rejecting a memorandum of appeal it would have expressly said so"