SURESH CHANDRA DATTA Vs. ARABINDA KAR
LAWS(CAL)-1970-5-36
HIGH COURT OF CALCUTTA
Decided on May 28,1970

Suresh Chandra Datta Appellant
VERSUS
Arabinda Kar Respondents

JUDGEMENT

B. Banerjee, J. - (1.) This appeal by a sub -tenant is directed against a judgment and decree of ejectment in a suit governed by the West Bengal Premises Tenancy Act, 1956.
(2.) Admittedly, Dr. Assem Kumar Basu was the owner landlord and under him the Defendant No. 1 Upen Guha and one Mrs. Malina Roy were the tenants in respect of the two -storied house standing oh the premises No. 52/2 Surya Sen Street, Calcutta.. The house contains in all 11 rooms, four kitchens and a covered verandah used as a kitchen. The tenancy of Mrs. Malina Roy comprised two rooms on the first floor, one room on the roof and a kitchen. The remaining portion of the house was included in the tenancy of Upendra Guha who subsequently inducted the Defendants Nos. 2 to 4 as sub -tenants. The Defendant No. 4, Suresh Chandra Dutta, is the Appellant before me. He gave notice of sub -tenancy to the superior landlord as enjoined by Sec. 16 of the West Bengal Premises Tenancy Act, 1956. The Respondents Nos. 1 and 2 and their cousins Respondents Nos. 3 and 4 jointly purchased the entire house standing on the premises No. 52/2 Surya Sen Street from Dr. Assem Kumar Basu on September 28,1964. The tenants of the house duly attorney to the new landlords who, on May 10, 1965, raised the suit, which has given rise to the present appeal, for ejectment of tenant Upen Guha and the sub -tenants on three -fold grounds, viz. namely, (a) that the suit premises was reasonably required by the Plaintiffs for the use and occupation of the Plaintiffs and their family members, (b) that the tenant Defendant Upen Guha and the persons living under him have caused damages resulting in the material deterioration of the property and (c) that the tenant Defendant No. 1 had unlawfully sublet or otherwise transferred possession of a. part of the tenancy after the passing of the West Bengal Premises Tenancy Act and subsequent to the purchase of the Plaintiffs Respondents Nos. 1 to 4 by inducting one Ramesh Guha in one of the first floor rooms of the suit premises without the consent in writing of the Plaintiffs Respondents. During the pendency of this suit, the tenant Upendra Guha died, and his heir and legal representatives were brought on record. The learned Judge, City Civil Court, who heard the suit, found that the allegations with regard to causing damages resulting in the material deterioration of the property and the allegation of subletting subsequent to the Plaintiffs' purchase were totally destitute of truth. He, however, found that the Plaintiffs and their family members reasonably required the suit premises and, in that view of the matter, he gave the Plaintiffs a decree of ejectment against the tenants and the subtenants. Being aggrieved by the aforesaid judgment and the decree the sub -tenant Defendant No. 4 alone has preferred this appeal. The tenant Defendant No. 1 or the sub -tenants Defendants Nos. 2 and 3 did not, however, file any appeal or cross -objection. As such, the scope of the present appeal is limited to the decree of ejectment passed by the lower appellate Court insofar as it relates to the ejectment of the sub -tenant Defendant No. 4 from the two rooms and the kitchen in his possession.
(3.) At the hearing Mr. Banerjee, the learned Advocate for the Respondents, has raised a preliminary objection against the maintainability of the present appeal. He has argued that no appeal lies against a decree of ejectment passed under Sec. 13 of the West Bengal Premises Tenancy Act, 1956. He develops his argument in this way: Under the general law a right of appeal has, no doubt, been conferred upon a litigant under the provisions of Ss. 20 and 21 of the Bengal, Agra and Assam Civil Courts Act, 1887. But the West Bengal Premises Tenancy Act, 1956, being a special law on the subject will override the general law contained in Ss. 20 and 21 of the Bengal, Agra and Assam Civil Courts Act, 1887. He has further argued that the West Bengal Premises Tenancy Act, 1956, is a self -contained Act insofar as it creates new rights and liabilities and provides for their remedies in case of infringements. Sec. 20 of the Act provides remedy by way of a suit and enacts that, notwithstanding anything contained in any other law, a suit or a proceeding by a landlord for ejectment of the tenant governed by the West Bengal Premises Tenancy Act shall lie only to Courts, as set out in the Schedule, and no other Court shall be competent to entertain or try such suits. Therefore, it excludes the jurisdiction otherwise conferred on the various civil Courts by the Bengal, Agra and Assam Civil Courts Act, 1887. Sec. 29 of the Act provides for remedy by way of appeal, revision and review. It says that an appeal shall lie from a final order of the Controller. It nowhere says that an appeal shall lie from a decree of ejectment in respect of a tenancy governed by the West Bengal Premises Tenancy Act, 1956. There -fore, by implication, so argues Mr. Banrjee, the right of appeal under the Bengal, Agra and Assam Civil Courts Act, 1887, is taken away. In my opinion, the contentions of Mr. Banerjee are not sound. It is true that a right of appeal is not to be assumed and that it does not exist unless clearly given by a statute. I am, however, unable to subscribe to the view of Mr. Banerjee that Ss. 20 and 21 of the Bengal, Agra and Assam Civil Courts Act, 1887, give a right of appeal to a litigant, or that, since those two Ss. have been excluded by the opening words 'notwithstanding anything contained in any other law' mentioned in Sec. 20 of the West Bengal Premises Tenancy Act, 1956, therefore the present appeal is incompetent. I think, a distinction has to be drawn between a right of appeal given to a litigant and conferment of jurisdiction by a statute upon a Court to hear appeal. The Bengal, Agra and Assam Civil Courts Act, 1887, besides creating the various classes of civil Courts, confer jurisdiction upon certain Courts to hear appeals. The Act, in my opinion, does not give a right of appeal to a litigant. Ss. 20 and 21 occur in chap. Ill which deal with jurisdiction. There are various special law which no doubt confer a right of appeal upon a litigant in respect of rights created under these statutes. But the general law on the - subject is contained in the Code of Civil Procedure. It provides that an appeal should He from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals.;


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