Bijayesh Mukherji, J. - (1.) The judgment I render now governs two cases. One is a Revisional petition under Section 25 of the Provincial Small Cause Courts Act, IX of 1887, challenging the dismissal, by a learned Subordinate Judge, Howrah, qua Small Cause Court Judge, of a suit for recovery of arrears of rent for two rooms (Civil Revision No. 2252 of 1961). The other is an Appeal from an Appellate Order of a learned Additional District Judge, Howrah, reversing the order of the same learned Subordinate Judge who allowed an application under Section 38 of the Bengal Money Lenders Act, 10 of 1940 (Second Miscellaneous Appeal No. 118 of 1962).
(2.) To the facts first One Buddhu Sau held as a thika tenant, 72/6, Banbihari Basu Lane (shortened hereafter into '72/6'). Admeasuring some six cottahs and containing so many as twenty one rooms, albeit of split-bamboo walling and of tiled roofs, a pucca privy, a pucca drain, a well etc., '72/6' is within the municipality and the police-station of Howrah. Quite an important property in 1958 and still more so in the context of to-day, it became the subject-matter of three documents, each of which was executed on March 14, 1958 and put to registration eleven days later : March 25, 1958. To assist one's convenience, here is a table recording some detail of these documents: JUDGEMENT_24_LAWS(CAL)6_1966_1.html On May 22, 1959, a little more than a year after the execution of the three documents tabulated above, Buddhu Sau applied before a learned Subordinate Judge, Howrah, under Section 38, Sub-section 1, of the Money Lenders Act, for accounting. Mangal Sau was not to lag behind. Only twelve days later, that is to say, on June 3, 1959, he instituted a suit in the Small Cause Court, Howrah, against Buddhu Sau, for recovery of Rs. 232 as arrears of rent for 14-1/2 months from March 14, 1958 to May 1959, at the rate of Rs. 16 a month: just the amount and just the tenancy stipulated in the lease, Ex. B.
(3.) The same learned Judge had had an analogous hearing of both these litigations. Buddhu Sau's application under Section 38, Sub-section (1), registered as a Miscellaneous Judicial Case under Rule 776(48) of this Court's Civil Rules and Orders, vol. 1, he tried as a Subordinate Judge. And Mangal Sau's suit he tried as a Judge, Small Cause Court. So he did upon evidence which was treated as evidence in both and used as well for the purposes of both, save that documentary evidence was separately marked as exhibits in each. In the end, by a consolidated judgment governing both, he found the transaction, evidenced by the three documents together, to be in substance a loan within the meaning of Section 2, Clause 12, of the Money Lenders Act, which bears, in so fat as it is material here: "loan means an advance...of money...made on condition of repayment with interest and includes any transaction which is in substance a loan." Necessarily, therefore, he allowed Buddhu Sau's application under Section 38, Sub-section (1) and dismissed Mangal Sau's suit. Against the dismissal of his suit, Mangal Sau moved this Court under Section 25 of the Provincial Small Cause Courts Act and obtained a Rule. This is Civil Revisional Case No. 2252 of 1961. From the order of the learned Subordinate Judge, allowing Buddhu Sau's application under Section 38, Sub-section (1), Mangal Sau preferred an appeal which was allowed by a learned Additional District Judge oh the finding that the transaction in question was a sale, not a loan in substance. And from that Appellate order of reversal, Buddhu Sau has appealed to this Court. That is Second Miscellaneous Appeal No. 118 of 1962.;