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HIGH COURT OF CALCUTTA
DAS, DEBABRATA MOOKHERJEE
SUKHENDU BIKASH BARUA - Appellant
Versus
HARE KRISHNA DE - Respondent
A. F. O. O. (Mandamus) 160 Of 1952
Decided On : MAY 19, 1953
LETTERS PATENT - APPEAL - COMPETENCY - JUDGMENT IN APPLICATION UNDER SECTION 115, CIVIL P. C. AND ARTICLE 227 OF THE CONSTITUTION - WHETHER APPEALABLE UNDER CLAUSE 15 OF THE LETTERS PATENT - INTERPRETATION OF CLAUSE 15 - EFFECT OF AMENDMENTS - SCOPE OF POWERS OF REVISION UNDER SECTION 115, CIVIL P. C. - INTERFERENCE BY HIGH COURT UNDER ARTICLE 227 OF THE CONSTITUTION - PRINCIPLES GOVERNING.
Fact of the Case:
The defendant appealed against a judgment of Chunder J. dismissing his petition under Section 115, Civil P. C. and Article 227 of the Constitution. The petition challenged the decree of the Small Cause Court in a suit for possession of premises under the Rent Control Act. The defendant raised two issues: (1) whether the requirement of bona fide use should be judged by the Rent Control Act, 1948, or the Rent Control Act, 1950; and (2) whether the requirement contemplated by the Rent Control Act must be the requirement of any one or more of the landlords.
Finding of the Court:
The court held that no appeal lay under Clause 15 of the Letters Patent against the judgment of Chunder J. because it was a judgment made in exercise of the powers of superintendence under Article 227 of the Constitution. The court also held that the judgment of Chunder J. was not such a matter as called for interference by the High Court under Article 227 of the Constitution.
Issues: 1. Whether an appeal lies under Clause 15 of the Letters Patent against a judgment of a single Judge exercising powers of revision under Section 115, Civil P. C.? 2. Whether a judgment of a single Judge made in exercise of the powers of superintendence under Article 227 of the Constitution is appealable under Clause 15 of the Letters Patent? 3. Whether the judgment of Chunder J. was a proper exercise of his discretionary powers of interference under Article 227 of the Constitution?
Ratio Decidendi: 1. Clause 15 of the Letters Patent does not confer a right of appeal against a judgment made in exercise of the powers of revision under Section 115, Civil P. C. 2. A judgment of a single Judge made in exercise of the powers of superintendence under Article 227 of the Constitution is not appealable under Clause 15 of the Letters Patent. 3. The judgment of Chunder J. was not such a matter as called for interference by the High Court under Article 227 of the Constitution.
Final Decision: The appeal was dismissed.
( 1 ) THIS is an appeal by the defendant and is directed against a judgment of Chunder J. , dated 28-3-1952.
( 2 ) THE facts are that In September, 1949, the plaintiffs respondents initiated proceedings under Section 41 of the Presidency Small Cause Courts Act alleging that they required the disputed premises for their own use. The proceedings were numbered as Suit No, 10455 of 1949. The suit was decreed on contest by Mr. B. P. Bakshi, learned Judge, 4th Bench, his decision being dated 28-8-1949. Against that judgment an appeal was taken by the defendant to the Special Bench. The Special Bench dismissed the appeal on 23-3-1951. Thereafter the defendant filed a petition purporting to be under Section 115, Civil P. C. and Article 227 of the Constitution. A Rule was issued being Civil Rule No. 1437 of 1951. The Rule came up for hearing before Chunder J. who by his judgment dated 28-3-1952, discharged the Rule. Before the learned Judge two points appear to have been raised, namely, (1) whether the question whether the premises were required for the bona fide use of the landlords must be judged by a reference to the provisions of the Rent Control Act, 1948, or the Rent Control Act, 1950. (2) Whether the requirement contemplated by the Rent Control Act must be requirement of any one or more of the landlords. Chunder J. overruled the contentions on behalf of the petitioner and discharged the Rule as I have already stated. Against the judgment pronounced by Chunder J. on 28-3-1952, the defendant has filed the present appeal under Clause 15 of the Letters Patent. The appeal has come up before us for disposal. Mr. Dutt, learned Advocate on behalf of the respondents, has raised a preliminary objection that the appeal is incompetent.
( 3 ) THE question is whether an appeal against an order passed in an application purporting to be under Section 115, Civil P. C. and Article 227 of the Constitution lies under Clause 15 of the Letters Patent.
( 4 ) THE Letters Patent was originally issued on 14-5-1862, and was amended on 28-12-1865. The relevant portion of Clause 15 of the Letters Patent, as amended, is in these terms :"and we do further ordain that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal from the judgment not being a sentence or an order passed or made in any criminal trial of one Judge of the said High Court or one Judge of any Division Court pursuant to Section 13 of the said recited Act. "the said recited Act refers to the Indian High Courts Act, 1861 (24 and 25 Victoria, Ch. 104 ). It is necessary at this stage to state the provisions of the Code of Civil Procedure and of the different Acts relating to the powers of the High Court.
( 5 ) THE earliest Code of Civil Procedure was Act 8 of 1859. That Act did not confer on the Court any power of revision. Such powers of revision were conferred for the first time by the Civil Procedure Code of 1861 (Act 22 of 1861 ). Section 35 of the said Act conferred a very limited power of interference in revision, the power being limited to cases where the lower appellate Court exceeded its jurisdiction. Meanwhile, on 6-8-1861, the Indian High Courts Act, 1861, also called the Charter Act, conferred on the High Court by Section 15 thereof the power of superintendence over all Courts subordinate thereto. By Act 10 of 1877 the powers of revision conferred on this Court were extended so as to include cases similar to those contemplated in Clauses (a) and (b) of Section 115, Civil P, C. 1908. The powers of revision were further enlarged by Section 42 of Act 12 of 1879. The powers of revision which were conferred on this Court by the last two Acts are identical with the powers which this Court now enjoys under Section 115 of the Code of Civil Procedure, 1908. The aforesaid two Acts, namely, Act 10 of 1877 and Act 12 of 1879, were consolidated and Section 622 of Act 11 of 1882 conferred on this Court powers of revision identical with those specified in S
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