- (1.) The appeal is barred by fifty days. Causes shown being sufficient, delay is condoned. The appeal is taken on record.
(2.) The appellants filed a declaratory suit before the City Civil Court, inter alia, praying for a declaration that the tenanted room described in the schedule below was totally useless for the purpose of original tenancy and a further declaration that the plaintiffs were entitled to a decree to the effect that they would not be liable to pay the occupiers' share of Corporation tax. On the self-same tenancy, an ejectment suit is pending before the Small Causes Court, where the appellants are contesting the suit resisting the decree of eviction that may be passed against them. The City Civil Court dismissed the suit following the Order VII Rule 11(D) of the Code of Civil Procedure. The City Civil Court observed that it had no jurisdiction to entertain the suit, as the subject issue was covered by Sections 35 and 37 of the West Bengal Premises Tenancy Act, 1996 and as per Section 44 thereof, the Civil Court would have no jurisdiction to entertain such suit. Being aggrieved, the appellants filed an application for revision before this court, however the same was disposed of by observing that it was not maintainable.
(3.) The present appeal has been filed as First Appeal Tender (FAT). The Stamp Reporter in his report objected to the same and observed that it should be treated as First Miscellaneous Appeal Tender, as it is an appeal from an order and not a decree. The Stamp Reporter has possibly relied upon the Division Bench decision in the case of Surajmal Jain v. Prabir Kumar Sett reported in 1980 Volume 2 Calcutta Law Journal page 161 , wherein the order of the like nature was considered by the Division Bench and the Division Bench was of the view that it could not be treated as a Decree. The same view was taken by another Division Bench in the case of Biswa Bijoy Oke v. Magma Leasing Ltd. and Anr. (FAT 4328 of 2006) .;