SHAMLAL MAZUMDAR Vs. M L DALMIA

JUDGEMENT

(1.) THESE three Rules arise on three applications under Article 227 of the Constitution and are directed against Order dated 21st of August 1975 passed in Miscellaneous Appeal No. 543 of 1974 by Sri P. Dutta;, 6th Additional District Judge, Alipore, acting as an Appellate Authority under the Thika Tenancy Act, setting aside the order dated 18th of June 1973 made by Sri P. K. Mitra, 4th Court of the Munsiff at Alipore, acting as Thika Controller in Miscellaneous T. Case Nos. 148 to 150 of 1959.

(2.) THE facts of the case may briefly be stated as follows : - The petitioners are thika tenants in respect of small portions of vacant and at premises No. 101, Ashutosh Mukherjee Road, Calcutta. The opposite party by purchase in an auction sale of the landlords' interest became the landlord of the petitioners. After purchase the opposite party instituted proceedings under Section 5 of the Thika Tenancy Act, 1959 for ejectment of the petitioners on the ground of default in payment of rent before the Thika Controller at Alipore. After pausing through various phases due to the several amendments of the Act, the proceeding started in 1959 came up for hearing before Sri P. K. Mitra, 4th Court of the Munsif at Alipore (Thika Tenancy Controller) and disposed of on 18. 6. 73. The learned Controller in view of the order passed by this Court disposed of the case assessing up-to-date arrears less the amount paid under order of the Court. In assessing arrears of rents the learned Controller allowed interest as provided under the Thika Tenancy Act in Section 23 which provides for interest up to the date of the suit i. e. starting of the proceeding for ejectment and as such interest for post-suit arrears was refused. The opposite party being aggrieved by the aforesaid order preferred three appeals under Section 27 of the Act. The learned Additional District Judge allowed the appeals, set aside the order, passed by the learned Munsif. He was of the opinion that he opposite party was entitled to get interest on post suit arrears and remanded the case to the learned Controller for assessing such interest. Being aggrieved by the aforesaid order, the petitioners have come up before this Court.

(3.) MR. Nepal Chandra Roy Chowdhury, learned Advocate appearing on behalf of the petitioners, in the first place, submits that the order of remand passed by the learned Appellate Authority is without jurisdiction, since he was not functioning as Civil Court but as a persona designate and as such he has not all the powers of a Civil Court under the Code of Civil Procedure and his powers are limited to those conferred by the Act, and as the power of remand has not been conferred he acted beyond jurisdiction in passing an order of remand. In support of his contention he refers to the decisions reported in 60 C. W. N. 1032 (Mamata Ghosh and On. v. Mr. Charu Chandra Mandal and anr.) and 62 C. W. N. 148 (Rai Harendra Nath Choudhuri v. Daulatmani chaudhuraini ). We agreed with the submission made by Mr. Roy Choudhuri that the Appellate Authority under the Calcutta Thika Tenancy Act is a person designate and not a count within the meaning of the Code as defined in Bengal, Agra and Assam Civil Courts Act and has not got the power of remand. But in this case we find from the order passed by the learned Appellate Authority that he disagreed with the learned Controller on point of law, set aside the said order, allowed interest on post-suit arrears and sent, the cases back only for assessment of such arrears. Thus it is seem that it is simply for the matter of calculation that the cases were sent back. As such we do not think that the order by which the cases were sent back is strictly an order of remand within the meaning of Order 41 Rule 23 of the Code of Civil Procedure.