An application under Section 7a of the Calcutta Thika Tenancy Act for setting aside an eviction order can be filed within 60 days from the commencement of the Amendment Act, even if the possession of the land has not been recovered by the landlord and the matter of compensation is still pending.

1. THIS Rule was issued on an application under Article 227 of the Constitution of India and is directed against judgment dated 31st May, 1975 passed by Sri A. N. Mitra, Additional District Judge, 4th Court at Alipore in Miscellaneous Appeal No. 124 of 1975 affirming that of Sri D. S. Basu, Munsif, 4th Court at Alipore passed on January 11, 1975 in Miscellaneous t Case No. 188 of 1956. The facts of the case may briefly be stated as follows: that on an application filed by the landlord opposite party an order was passed by the learned Munsif acting as Controller under the Calcutta Thika Tenancy Act by which the application was allowed and the petitioners were directed to vacate the disputed holding within two months. It was further ordered that the eviction would take effect only on payment of compensation to the petitioners for the structures standing on the disputed holding. It is the admitted position that the matter of de termination of the amount of compensation is still pending. On 16th of March 1971 the petitioners filed an application under Section 7a of the Calcutta Thika Tenancy Act as amended read with Sections 5 and 14 of the Limitation Act praying for setting aside the order of eviction after condoning the delay in filing the application. Thereafter on 3rd of August 1971 the petitioners filled another application under Section 13 of the Calcutta thika Tenancy (Second Amendment)Act, 1969 for vacating the order passed under Section 5 and for quashing the proceedings. The opposite party filed written objection. After hearing both the parties, the learned Controller rejected the petitioners' application. Being aggrieved, the petitioner preferred an appeal before the District Judge and the same was dismissed. Hence the petitioners present application before us.

2. WITH regard to the application dated 16th of March 1971 the learned Controller has found that no separate application has been filed under Section 5 of the Limitation Act and as the petition contained two prayers the same was rejected. As regards the petition under Section 13 of the Calcutta thika Tenancy Act the learned Controller rejected the same on the ground that the prayer portion of this petition does not tally with the provisions of Section 13 of the Act which deals with time and place of payment of rent. The learned Additional District Judge noted that it was conceded by the learned Advocate for the appellants that an application under Section 7a was rightly rejected by the learned Controller. But the learned Advocate for the appellants submitted that the application under Section 13 was wrongly dismissed. The learned Appellate Court found that no final order was passed in this case. The learned appellate court below rejected the application under Section 13 on the same ground for which it was rejected by the learned Controller.

Mr. Radhakanta Bhattacharyya, learned Advocate appearing on behalf of the petitioners, submits before us that it appears from the judgment passed by the learned appellate court below that on behalf of the appellants it was conceded that the application under Section 7a was misconceived. But Mr. Bhattacharyya submits that; most probably such a submission was made relying on the legal position as enunciated in the case reported in A.I.R. 1971 Cal. 330 (Lalua Shaw v. Anil Bhusan Ganguly) and in the case reported in A.I.R. 1971 Cal. 539 (Jatindra Nath Paramanick v. Debiprasad Mitra) In both these cases S.K. Chakravarti, J. was of opinion that as the matter of determination of compensation was still pending an application under Section 7a would not lie and the same was rightly rejected by the courts below on the ground that the same was premature. Mr. Bhattacharya submits that the learned Controller as well as the learned Additional District Judge were wrong in rejecting the application under Sec. 7a. Section 7a reads as follows:

"where an order for ejectment of a thika tenant from his holding has been made by the Controller