( 1 ) THE decision of this rule obtained on February 15, 1965, by a thika tenant, Hari Nanday Roy by name, under Article 227 of the Constitution turns on the question : when the ex parte order of the thika controller under Section 5 of the Calcutta Thika Tenancy Act 2 of 1949 ejecting the thika tenant, on the ground that the term of his lease has expired within Section 3, clause (vi) ibid, has been confirmed in appeal by an appellate Tribunal under Section 27 ibid, does the Controller cease to have jurisdiction to hear the tenant's petition under Order 9, Rule 13, of the Procedure Code for setting aside the same ex parte order?

( 2 ) THE learned Controller, by his order No. 59 dated December 7, 1964, answered the question in the affirmative and refused to set aside the ex parte order he had entered on February 22, 1964, in proceedings under Section 5 read with Section 3, clause (vi), initiated by the landlords on July 1, 1958. So did the learned District Judge qua appellate authority in a manner by summarily dismissing, on January 14, 1965, the appeal against the Controller's order aforesaid. Hence this rule.

( 3 ) MR. Sinha, appearing for the petitioner, contends that, in view of Section 27, sub-section 4, of the Act, making it obligatory for the District Judge to send for the record of the case from the Controller, he has no jurisdiction to dismiss the appeal summarily, as he has done. This contention appears to be sound. It is now well held that the appellate authority, as the District Judge is, in deciding an appeal under Section 27, is not a Court but a persona designata. Its power are the powers conferred on it by the Act itself and the rules made thereunder. Mamata Ghosh v. Mrs. Charu Chandra Mandal, (1956) 60 CWN 1032, a cas Mr. Sinha cites. Necessarily, therefore, Order 41 of the Procedure Code does not apply of its own force to an appeal under Section 27. Order 41 not applying, rule 11 thereof, containing the law for summary dismissal of an appeal, does not apply too. On top of that, neither the Act nor the rules provide for a summary dismissal of an appeal. For what an appeal under Section 27 is like, Paran Chandra Porel v. Hari Priya Dassi, (1958) 62 CWN 518, which also Mr. Sinha refers me to. The conclusion therefore follows that the District Judge qua appellate authority has overstepped the limits of his jurisdiction by summarily dismissing the appeal.

( 4 ) BUT only because this is so, I am not bound to interfere under Article 227 of the Constitution; in particular, when I am convinced, upon the whole of the materials I have had put before me that it will be a barren interference, only prolonging the life of a more than eight-year-old lis, the history and progress of which so far has been so discreditable to our legal proceedings. As Mr. Lala Hemanta Kumar, appearing for the opposite party landlords, submits : is it worth while to interfere only for the sake of interference?

( 5 ) MUCH the most important fact is the clear dismissal on May 16, 1964, of the appeal : miscellaneous appeal No. 208 of 1964, preferred by the tenant petitioner against the Controller's ex parte order dated February 22, 1964, for his ejectment. With the dismissal of the appeal by the appellate authority, the Controller's ex parte order had no separate entity. It was merged in the appellate order. When therefore the Controller proceeded to try the petition under Order 9, Rule 13, for setting aside the ex parte order, on November 28, 1964, - some 6 months and 12 days after the dismissal of the appeal on May 16, 1964 - there was no ex parte order of his to be set aside. There was then only the appellate order of May 16, 1964, in which the ex parte order dated February 22, 1964, of the Controller was merged.

( 6 ) IN having dismissed the appeal so on May 16, 1964, the learned Subordinate Judge qua appellate Tribunal under Section 27 of the Thika Tenancy Act found as follows : a. Hardly any point was made out for reversal of the ex parte or

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