- (1.) This is an application for revision of an order dismissing the applicants' application for review of a decree passed on June 13, 1955, in a suit by the opposite party for ejectment of the Defendants from the premises. What appears to have happened is that there was an application for an order under Section 14(4) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, and the Defendants were ordered by Order No. 10, dated May 12, 1955, to deposit the arrears of rent within fifteen days and subsequent rent by the 15th of the month following. The Defendant did not comply with this order and then the suit was adjourned to May 30, 1955, awaiting deposit. Ultimately, as no deposit was made, the defence of the Defendants against ejectment was struck off and the suit was fixed for ex parte hearing on June 13, 1955. The Defendants did not appear at all after May 12. 1955, when the order directing them to deposit the arrears of rent was made and they did not also appear on the date when the suit was taken up for ex parte hearing. There was an ex parte decree. The Defendants thereafter, instead of filing an application under Order IX Rule 13 of the Code of Civil Procedure within one month of the ex parte decree, moved an application for review. The learned court below dismissed that application on the ground that there was no ground for review as there was no error on the face of the record.
(2.) The only point argued in favour of the applicants is that the order under Section 14(4) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, was a nullity and was without jurisdiction and as it was a nullity, the order fixing the suit for ex parte hearing and the ex parte decree were all bad. It is, accordingly, contended that the ex parte decree, on the face of it, was bad. The claim for ejectment was on two grounds, namely, that the Defendants were in arrears with their rents and that the Plaintiff reasonably required the premises for his own use and occupation. The question now is whether, in a suit of this composite nature, it is open to the trial court to proceed under Section 14(4) at all. It has been held in the Full Bench case in T.S.R. Sarma. v. Nagendrabala Devi Choudhurani, 1952 57 CalWN 1 and also by a Division Bench in the case of Moulavi Miah v. Sasanka Mohan Guha,1953 57 CalWN 300that the type of suit contemplated by Section 14(4) of the Rent Control Act of 1950 is the same as contemplated by Section 14(1) of the Rent Control Act of 1950 and Section 14(1) of the Rent Control Act of 1950 is clearly limited to suits in which the only ground which disentitles the tenant from the protection of the Act is that he has PAGE MISSED. Mutwali but that application (Misc. Judl. Case No. 348 of 1948) was thrown out by the Court on Amin's objection by its order, dated November 2, 1949. Then after Amin's death the present Petitioner applied again to the Commissioner of Wakfs for registration of his name as Mutwali but the said application was rejected as the opposite party had already got his name enrolled and registered there as Mutwali under Section 40 of the Bengal Wakf Act during the minority of Begum Ekbal Jahan, who was the eldest daughter of Kazi Md. Amin and who, according to the Commissioner, was the rightful Mutwali under the Wakfnama after his death. The Petitioner then applied to the learned District Judge for his appointment as Mutwali in terms of the observation quoted above from the High Court judgment and this application was eventually allowed by the learned District Judge by his order dated May 4, 1955, passed ex-parte. On November 26, 1955, the opposite party applied for the setting aside of the said ex-parte order alleging inter alia that the said order had been obtained on untrue allegations and suppression of material facts and without notice to him and that it was otherwise also bad in law, the learned District Judge having no jurisdiction as Kazi to appoint a Mutwali where there was no vacancy in that office and there was a Mutwali already enrolled and registered under the Wakf Act. By his order dated June 8, 1956, the learned District Judge allowed this application, set aside his ex-parte order dated May 4, 1955 and cancelled the Petitioner's appointment as Mutwali, virtually also rejecting finally his prayer for the same. It is against this order that the present Rule was obtained by the Petitioner and herein the propriety of the said order is challenged by him.
(3.) In our opinion, this Rule should succeed in part and, while the setting aside of the ex-parte order should stand, the Petitioner's application for his appointment as Mutwali should be reconsidered by the learned District Judge in accordance with law in the presence of the opposite party in the light of certain observations which we shall presently make herein.;