Aminchand Dassani vs Mamalbai Bachawat and Others

Mr. Chittatosh Mookerjee, J.—The defendant tenant obtained this Rule against order of the learned Subordinate Judge, 1st Court Howrah, disposing of an appeal preferred by the plaintiff against an order u/s 17 (2A) of the West Bengal Premises Tenancy Act passed by the learned Munsif, 1st Court Howrah. In my view, Mr. Chatterjee, learned Advocate for the petitioner, is right in his submission that the above appeal in the lower appellate court directed against the order u/s 17 (2A) of the West Bengal Premises Tenancy Act did not lie. Obviously the said order u/s 17 (2A) did not amount to a decree. Same also was not an order appealable under the Code of Civil Procedure. Therefore, the learned subordinate judge plainly acted without jurisdiction in deciding the said appeal on merits. The decision of P.B. Mukharji, C.J. and B.C. Mitra, J. in the case of Iswar Singh Kripal Singh & Co. v. The Rajputana Trading Co. Ltd. & Anr., reported in 77 C.W.N. 326 which was relied upon by the learned Subordinate Judge was clearly distinguishable. The Division Bench in the aforesaid case of Iswar Singh Kripal Singh & Co. v. The Rajputana Trading Co. Ltd. (Supra) had considered the question whether an order striking out defence against delivery of possession was a ''judgment'' within the meaning of clause 15 of the Letters Patent 1865 and the view of the Division Bench was that the said order was appealable under cl. 15. The said decision has no manner of application in deciding the maintainability of an appeal from a court of first instance under Bengal Assam Agra Civil Courts Act to the lower appellate Court. The right of appeal, it is well settled, is a creature of statute. When neither the CPC nor the West Bengal Premises Tenancy Act make such an order u/s 17 (2A) appealable I am bound to hold that the appeal in question before the learned Subordinate Judge was misconceived and not maintainable in law. The learned Subordinate Judge in the exercise of his jurisdiction ought to have directed return of the Memorandum of Appeal filed by the plaintiff. The plaintiff did not file any revisional application against the order of the learned Munsif passed u/s 17(2A). Therefore it is not necessary for me to examine the merits of the order u/s 17 (2A). Needless to say, the order passed in this case would be without prejudice to the rights and contentions of the parties in any other appropriate proceedings were the propriety or legality of the said order u/s 17 (2A) may be considered according to law.

Subject to these observations I make the Rule absolute and set aside the order of the learned Subordinate Judge in Misc. Appeal No. 159 of 1973. Let the Memo of Appeal be returned to the learned Advocate for the plaintiff appellant.

There will be no order as to costs.

Let the records be sent down expeditiously.