ASHALATA DEVI Vs. CHAND BAI DALMIA
HIGH COURT OF CALCUTTA
CHAND BAI DALMIA
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(1.)THIS Rule was issued on an application under Section 115 of the Code of Civil Procedure against Order No. 38 dated 4th of December 1972 passed by the Judge, 7th Bench, city Civil Court, Calcutta, in Ejectment suit No. 2441 of 1962. By that order the petitioner's application under section 17e of the West Bengal premises Tenancy Act was rejected. The suit was decreed on 25th of June 1965. Being aggrieved, the petitioner preferred an appeal in this court in 1967 being F. A. 332 of 1967.
(2.)ON 6th of March, 1910, Act 1r of 1970 with a new Section 17e came into force. The present application under Section 17e was filed by the petitioner on 23rd of April 1970. F. A. No, 332 -of 1967 was dismissed by this court on 9th of September 1971. This matter was heard by A. C. Ray, J. on 16th of November 1973. His Lordship observed that one of the questions involved in this case was on the effect of Section 17e. There are judgments of Division Bench of this Court and also some are pending before the Supreme Court. As such the matter was referred to the Division Bench.
(3.)MR. Ashoke Kumar Sen Gupta, learned Advocate appearing on behalf of the petitioner, submits that the learned court below held that the application was not maintainable in view of the decision reported in 76 C. W. N. 743 (Amal Chandra Chatterjee v. Promod Kumar Banerjee ). This is a bench decision and it has been held that Section 17e of the West Bengal premises Tenancy Act, 1956 in so far as it operates retrospectively is ultra vires and is invalid. This being the decision of this Court, it cannot be said that the learned court below was wrong in rejecting the application relying on the above decision. Mr. Sen gupta submits that against this decision the aggrieved party has preferred an appeal in the Supreme Court and that appeal is pending for decision. It has further been submitted by Mr. Sen Gupta that the decision in the case referred to above was based upon the decision in Sailendra Nath Ghosh v. Sm. Ena Dutta, reported in A. I. R. 1971 calcutta 331 which was heard analogously with the case of B. Banerjee v. Sm. Anita Pan reported in A. I. R. 1975 s. C. 1146. The Supreme Court in B. Banerjee v. Sm. Anita Pan and Kamal lal Ghosal v. Sm. Ena Dutta overruled the Division Bench decision of this court. Therefore, it is submitted that the foundation for pronouncing section 17e of the Act as ultra vires no longer subsists.
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