JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. This application has been preferred challenging the propriety of the order dated September 23, 2021 passed by the learned District Judge, Alipore, in Title Appeal No. 23 of 2020 whereby the Court below was pleased to dismiss the said Appeal, as being abated.

2. The background of this case is that one Bipin Bihari Das was the original tenant in respect of the suit property who died intestate sometime in the year 1972, leaving behind his wife Smt. Binapni Das and five sons and three daughters as his heirs and legal representatives. Said Binapani Das died sometimes in the year 1997. Thereafter opposite party no.1 filed Ejectment case no. 4 of 2005 against the heirs and legal representative of said original tenant Bipin Bihari Das and Binapani Das. Among the legal heirs, only Anadi Kumar Das, the predecessor-in-interest of the present petitioner, being the defendant no.1, contested the suit by filing written statement. The said Ejectment Suit being no. 4 of 2005 was decreed on contest against said Anadi Kumar Das, and exparte against the rest.

3. Being aggrieved by that judgment and decree passed in aforesaid ejectment case no. 04 of 2005, aforesaid Anadi preferred an appeal before District Judge, being T.A. No. 23 of 2020. During pendency of the appeal said Anadi also died intestate on 06.05.2021, leaving behind his sons namely the petitioner of the present application and one Soumitro as his legal heirs and representatives. Accordingly petitioner herein and Soumitro preferred an application under XXII rule 3 seeking substitution of their names in place of deceased Anadi. Learned Court below by the order impugned held that the right to sue does not survive and as such the appeal abated and thereby ordered that the appeal is dismissed being abated.

4. Being aggrieved by that order, Mr. Mazumder learned Counsel appearing on behalf of the petitioner submits that till the suit was filed in 2004, the rent receipt was issued in the name of the estate of late Bipin Bihari Das and the provision with regard to the application of section 2(g) of the West Bengal Premises Tenancy Act 1997 (in short Act of 1997) has no retrospective effect. Learned Court below dismissed the appeal declaring that the defendants’ status is no better than a trespasser in respect of the suit property, in view of definition of “tenant” under section 2(g) of the Act of 1997, and the right to sue does not survive against the said defendant who are not the tenant in the suit property. The court below thereby non- suited the present petitioner while disposing an interlocutory application, in spite of the fact that the petitioner has inherited the tenancy right under section 2(h) of the West Bengal Premises Tenancy Act 1956 and section 2(g) of the Act of 1997 has got no application. Learned District Judge has applied wrong principle of law in view of the fact, that the original tenant died in the year 1971 and therefore, the provision of inheriting tenancy right will apply in the present context under section 2(h) of the Act of 1956.

5. Mr. Mazumder further submits that the plaintiff/opposite party in para 13 of the Plaint has admitted that the heirs of Bipin Bihari are the tenants in respect of the suit property. The plaintiff never pleaded the defendants as trespassers. He further submits that against an order, passed under order XXII rule 3 of the Code, no appeal lies and the present application under Article 227 squarely applies in such cases. The court below never stated that the decree of the Trial court was affirmed and for which such dismissal order does not amount to degree. In the instant case right to sue survives, since the plaint have been filed accepting the defendant as tenant in the year 2006 after coming into force, the Act of 1997.

6. Moreover, even if it is assumed for the sake of argument though not admitted, that section 2(g) is applicable in the present context even then the legal heirs can remain in the suit proper