Mamata Ghosh and Others vs Mrs. Charu Chandra Mandal and Another

Bachawat, J.—This Revision petition arises out of a miscellaneous case under the Calcutta Thika Tenancy Act for ejectment of the thika tenants. The Controller allowed the application. The appellate body was of the opinion that a local investigation was necessary for the purpose of finding whether or not the holding in dispute was really a part and parcel of holding No. 60 in Dihi Panchanan Gram. He was of the opinion that such local investigation was required in the interest of justice and for the proper adjudication of the case. This opinion cannot be and has now been challenged by. the learned Advocate for the petitioners. The lower appellate tribunal on this ground allowed the appeal, set aside the order of the Controller and remanded the case for fresh hearing after giving an opportunity to the parties to take out local investigation. The order is impugned by the learned Advocate for the petitioners on the ground that the lower appellate tribunal had no power to remand the case and that its order is without jurisdiction. This contention is sound and must prevail. I am informed that the appeal was originally presented to the learned District Judge and was later transferred by him to the learned Subordinate Judge u/s 27 (3) of the Act.

It is contended that the Subordinate Judge is an ordinary court of law and when the Subordinate Judge is hearing the appeal he has all the powers of the appellate court including the power of remand conferred by the Code of Civil Procedure. Reliance is placed upon the case of R. M. A R. A. Adaikappa Chettiar v. R. Chandra Sekhara Thever alias Sundara Pandia Thevar (1) reported in L.R. 74 IndAp 264 when it was decided that where a legal right is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable thereto. In my opinion, the principle of that case has no application here.

In my opinion, the appeal is being decided by the learned Subordinate Judge not as a Subordinate Judge but as a persona designata. It is to be noticed that section 27 of the Act does not say that the appeal will lie to the district court or to the Presidency Small Cause Court. The section prescribes that the appeal will lie to the District Judge or the Chief Judge or to a person appointed to hear appeals under sub-section (2).

When a judicial officer is given a right to determine certain matters of a judicial nature unconnected with the ordinary jurisdiction which he exercises under the law, the question arises whether he acts as a court or as a persona designata. Where the word used in the enactment giving the special jurisdiction is not "court" but "judge", the entire enactment is to be looked into to find out whether the matter is decided by him in his personal capacity: See. (2) [Kiron Chandra v. Kali'' das-] 47 C.W.N. 460.

It is to be observed that the appeal may be heard not only by the Chief Judge, a District Judge and a person to whom the appeal is transferred under'' Sub-Section (3) but also by any person appointed to hear appeals under Sub-Section (2). The appeal is not an ordinary appeal. The appellate tribunal may decide the appeal after perusing the record and also if necessary taking such evidence himself or making personal enquiries as he thinks fit. This is a power which is not ordinarily exercised by the appellate court exercising powers under the Code of Civil Procedure. Sub-Section (5) purports to confer express power of review upon the appellate tribunal. If the appellate tribunal was an ordinary court deciding the appeal it was not necessary to confer the power of review upon the appellate tribunal. Rule 12 also specially provides that the procedure laid down in the Code of Civil Procedure, 1908, for the trial of suits has to be followed by the District Judge or the person or persons appointed under Sub-Section (2) of Section 27 or the Chief Judge in making enquiries u/s 27.

On a consideration of the Act and Rules I am satisfied that the appellate tribunal in deciding the appeal u/s 27 of the Calcutta Thika Tenancy Act is not a court but a persona designata. In my opinion, the appellate tribunal has the powers conferred by the Act and the Rules. Order 41, C.P.C. does not by itself apply to an appeal decided u/s 27 of the Act. The appellate tribunal has only such powers as are conferred upon it by the Act and the Rules.

The Act and the Rules do not confer upon the appellate tribunal a power of remand.

The order of remand, therefore, is without jurisdiction and must be set aside.

This does not, however, mean that justice cannot be done to the opposite party. The lower appellate tribunal has held that a local investigation is necessary in the interest of justice and for the proper adjudication of the case. The lower appellate tribunal has ample power to see that justice is done. u/s 27(4) the lower appellate tribunal may decide the appeal after perusing the record and if necessary after taking such evidence himself and making such personal enquiries as he thinks fit. He has also the powers conferred by Section 32 including the power to enter and inspect any premises and to authorise any person subordinate to him to enter and inspect any premises. He has also the powers conferred by Rule 12 and he is enjoined to follow the procedure laid down in the Code of Civil Procedure, 1908, for the trial of suits as far as possible. The West Bengal Premises Rent Control Act, 1950, and the rules framed thereunder contain some- similar provisions. The lower appellate court may usefully refer to the decisions in (3) Nanda Dulal Dey Vs. Bisseswar Chakravarty, and (4) Mafazzal Hossain and Others Vs. Mt. Ayesha Bibi, and may derive such assistance as it can from those decisions.

I have no doubt that the lower appellate tribunal will render justice to the parties and if necessary exercise its powers u/s 27(4) and Section 32 of the Calcutta Thika Tenancy Act and Rule 12 of the Calcutta Thika Tenancy Rules and if necessary may make or cause to be made such local investigation as it thinks fit.

I, therefore, pass the following order :--

The Rule is made absolute. The order of the lower appellate tribunal dated the 22nd August, 1955, is set aside. The appeal is remitted to the lower appellate tribunal for decision in accordance with law and in accordance with the observations made above.

There will be no order as to costs; in this Rule.