Rishindra Nath Sarkar vs Rai Saheb Sakti Bhusan Ray

Sen, J.—The facts giving rise to this Rule briefly are as follows. The Petitioner who is the landlord let out certain premises to the Opposite Party Rai Sahib Sakti Bhusan Roy some time in March, 1942, at a rental of Rs.50 per month. An application was made under the House Rent Control Order, 1943, by the landlord for fixing the rent and by consent the rent was fixed at Rs.72 per month on the 2nd of November, 1943. On the 19th of January, 1944, the Opposite Party instituted a suit for the recovery of money paid as occupier''s share of taxes stating that the sum of Rs.72 included taxes. The trial Court dismissed the suit. The Full Bench of the Court of Small Causes decreed it. The matter came up before this Court and the matter was remanded and is still pending. On the 27th of April, 1949, the landlord applied for setting aside the consent order which was passed on the 2nd of November, 1943, the application purporting to be made u/s 151 of the Code of Civil Procedure. The application was dismissed by the Additional Rent Controller. An appeal was taken to the Chief Judge of the Court of Small Causes and he dismissed the appeal. Then there was an application for review on the 25th of August, 1949 before the Chief Judge of the Court of Small Causes and that application was rejected. Against that order the present Rule has been obtained.

In our opinion this Rule must be discharged. It has been held by a Division Bench. Of thisw Court in the case of Indian Homoeopathic Medical Association v. Kanailal Pal, (1950)54 CWN 369 that this Court has no answers of revising the orders passed by the Chief Judge of the Court of Small Causes in matters like these. It is contended on behalf of the Petitioner that although this Court had no power to interfere before the Constitution came into force, it has now power to do so under Article 227 of the Constitution Act and we are invited to exercise that power. When the order was passed it was a final order with which this Court could not interfere. The Constitution Act was not in force then. Assuming that subsequently this Court has been given powers of interference, that would not in our opinion entitle this Court to interfere with an order which was passed at a time when such power of interference did not exist. In this connection I would refer to the decision of the Judicial Committee in the case of Delhi Cloth and General Mills Company Limited v. income tax Commissioner, Delhi, LR 54 IA 421 (1127): (1927)SC 32 CWN 237 . The passage in which this principle has been laid down appears at page 425. This is what their Lordships said:

The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in The Colonial Sugar Refining Co. v. Irving, (1905) AC 369 where it is in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary judgment.

There is nothing in Article 227 of the Constitution which would indicate that there was such an intendment as is sought to be attributed to Article 227. Certainly, there are no express words in the article which would give the Court the right to interfere with a right in existence at the time of passing of the Constitution.

In these circumstances we are of opinion that this Rule must be discharged with costs.

Certificate to appeal to the Supreme Court is granted.

Chunder, J.

I agree.