An order of remand is not a final order for the purpose of granting leave to appeal to the Supreme Court under Article 133 (1) (c) of the Constitution if the lower court still has to perform judicial functions.

( 1 ) THIS is an application under Article 133 (1) (c), Constitution of India, for leave to appeal to the Supreme Court from a decision of a Division Bench of this Court, dated 9-9-1953, and given in the revisional jurisdiction. By that decision, this Court set aside an order of a Munsif, dismissing an application under Section 28, Calcutta Thika Tenancy Act, 1949, and remanded the case to the Court below for disposal of the same in accordance with law. By 'case' must be understood the application made by the 'thika' tenant under Section 28 of the Act.

( 2 ) THE questions involved in the proposed appeal are undoubtedly questions of great public importance and had it not been for the technical difficulty that the order sought to be appealed from is not a final order, I would not have the slightest hesitation in granting the leave prayed for. This Court, however, has already held that by reason of the form in which Sub-claise (c) of Article 133 (1) has been expressed, it is no longer possible for a High Court to grant leave to appeal to the Supreme Court in any case in which the order I sought to be appealed from is not a final order.

( 3 ) MR. Gupta contended that the order in question in the present case ought to be treated as a final order, because after the case went back to the learned Munsif, he would have to perform only the mechanical act of transferring the case to the Controller in order that the necessary further steps might be taken. I am unable to hold that the position is as contended for by Mr. Gupta. It may be useful to recall here that the original decree for ejectment was passed before the Thika Tenancy Act came into force. After the enactment of the Act, the tenant made an application under Section 28 for a rescission of the decree and the learned Munsif, dealing with the application by reference to the definition of 'thika tenant', as it then stood, held that the tenant was not a thika tenant at all. It was not disputed before this Court that if the law had stood where it was at the time the learned Munsif decided the case, his decision would be entirely right, but certain further amendments of the law have been made which have had the usual effect of obscuring rather than clarifying the position. Two of the principal amendments, with which we are concerned in the present case may be mentioned. By the amendment made in 1953, Section 28 was removed altogether and a new definition of 'thika tenant' was introduced. The questions debated before this Court appear to nave been two in number, namely, whether the repeal of Section 28 involved the consequence that the tenant's application under that section could no longer be pursued, whether in the original Court or before this Court in the application for revision; and, secondly, whether the tenant could now be held to be a 'thika' tenant under the new definition. This Court held, for the reasons given by it, that in spite of the amendment, section 28 was to be treated as surviving for the purposes of the tenant's application in the present case and that the tenant came under the new definition of a 'thika tenant'. Mr. Gupta's contention was that in view of those findings of the High Court, all the material questions which could arise under Section 28 had been finally disposed of and, therefore, although formally the order made by this Court was an order for remand, the remand was nothing more than one of a technical character.

( 4 ) IT appears, however, from a reference to Section 28 of the Act that even when it is found that the section applies and it is also found that the applicant is a 'thika' tenant, certain further questions may have to be 'gone into and disposed of. To give but two illustrations, the Court to which the application is made has first to be of opinion, if it is to rescind or vary the decree, that the decree is not in conformity with any provision of the Act, other than Sub-section (1) of Section 5 or Section 27. The Cour