P L D 1967 Dacca 441 (PLP)

This appeal is by defendants and it arises out of a suit for ejectment. The suit was decreed on the grounds that, in the first place, the defendant had illegally sublet the subject‑matter of a lease, and secondly, because it held that there was a bona fide requirement of the suit‑premises by the plaintiff, namely, the lessor. The suit was decreed by the trial Court and the appeal by defendant was dismissed. At the time when the appeal came up for hearing before me it became obvious that the appeal before the appellate Court below was incompetent and, therefore, it would follow that the second appeal in this Court was also incompetent, the point involved being that the suit being a suit for Small Cause, an appeal is barred under section 27 of the Provincial Small Cause Courts Act (hereinafter called, the Act). I have heard arguments on the question as to whether the appeal in the appellate Court below was competent. It rests on simple facts. The suits, bring obviously a Small Cause, was filed by the plaintiff and the trial had commenced in the Court of a Munsif at Sylhet who had jurisdiction to try suits in respect of Small Causes as also suits in the ordinary, original civil jurisdic tion of that Court. While he had taken cognisance of the suit and before the trial had proceeded beyond its commencement, the suit was transferred by the District Judge to another Court, namely, the Court of another Munsif at Sylhet who did not have the necessary power to try Small Cause Court cases. The trial, on such transfer, proceeded before him and the suit was disposed of resulting in a decree in favour of the plaintiff. Against the judgment and decree passed by the trial Court an appeal was preferred and it was heard by a Subordinate Judge who held that the appeal was incompetent, having regard to the provisions of section 24, subsection (4), of the Code of Civil Procedure, which runs thus: "The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes, shall for the purpose of such suit, be deemed to be a Court of Small Causes." It was argued that the suit was directed to be tried by a new Small Cause Court and, in fact, tried by a Court of that description. It was urged, on the other hand, that section 24 (4) had no application to the present case. A decision on this point calls for an adjudication of two allied questions, namely, whether the Court in which the trial had initially commenced, having jurisdiction to try the suit as a Small Cause had infect, tried it in the ordinary civil jurisdiction. If the Court had both those jurisdictions, them, no matter what form it had adopted, the law would assume the trial to have taken place as a Small Cause. The District Judge subsequently transferred the suit and not merely distributed the case in course of distribution of work. This being clear, the next question is what is the result of the provisions of section 24 (4) of the Code ? It is patent that the District Judge had transferred the suit from one Court to another. My attention was drawn to provisions of law which had authorised the District Judge to distribute work among different Courts. The two concepts are, however, clear and distinct. It is one thing to distribute work among Courts and another thing to transfer a matter from one Court to another. Whenever, a matter is taken out of one Court and assigned to an other a transference has taken place and not a mere distribution of work. Therefore, there is no manner of doubt that the District Judge, without saying so, has, in fact, transferred the suit under the aforesaid provisions, that is, under section 24 of the Code of Civil Procedure. The position, therefore, comes to this that the transferee Court, which had, in fact, tried the suit, did not have jurisdiction to try it as a Small Cause; but by provision of section 24 (4), as quoted above, the fiction of law is that the suit has been, in fact, tried by a Court of Small Causes. Mr. Abdus Salem has argued that if the trial is treated as a trial by a Court of Small Causes, then an appeal is barred under the provisions of section 27 of the Provincial Small Cause Courts Act, which runs thus: "Save as provided by this Act, a decree or order made under the foregoing provisions of this Act by a Court of Small Causes shall be final." Furthermore, it has been urged that there is no provision for an appeal in the scheme of the Act. Mr. Moinul Huq has argued that the bar would apply only if the trial has, in fact, taken place in accordance with the provisions of the said Act. The short answer to this is that, in fact, the trial was conducted by a procedure which does not militate against the provisions of the said Act and, therefore, it must also be deemed that the trial took place under the Act. It could not be said that a procedure which is prohibited or discountenanced by the Act was followed in this case. Therefore, it must be held that an appeal from the impugned decree stands prohibited under section 27 of the Act and the appeal being incompetent, was, therefore, dismissed on that account. The second appeal before me is also, a fortiorari, incom petent and is, therefore, dismissed without any order as to costs. I am now faced with a situation where it is not desirable that the appellants' remedy should be stultified because they chose to agitate their grievance in a wrong forum. This is why I have C entertained a belated application under section 25 of the Pro vincial Small Cause Courts Act and condone the delay in filing the same under sections 5 and 14 of the Limitation Act. I now proceed to deal with the application which I have just entertained under section 25 of the Act. Mr. Moinul Huq, who has appeared for the petitioners, has assailed the judgment and decree passed by the trial Court on two grounds only. One of the grounds upon which the decree was awarded to the plaintiff was that defendant No. 1 being the sole lessee of the suit‑premises had sublet it to defendant No.

2. On this point Mr. Moinul Huq has argued that the evidence of P. W. 2, who has supported the evidence of the plaintiff is inadmissible. He has submitted that the trial Court misdirected itself by relying upon such evidence. Without deciding whether it is, in fact, inadmissible, I think it is unsafe not to rely on such evidence. But, the plaintiff himself, as P. W. 1, has given evidence to the effect that defendant No. 2 was, in fact, a sub- lessee of defendant No.

1. The trial Court has applied its mind to all the relevant evidence led by the parties in this behalf. My attention was drawn to a finding in a previous suit where it was held that it had not been proved that defendant No. 2 was a sub‑lessee. It has been argued that the decision would operate as a bar to the present suit on pinciples analogous to res judicata the parties being the same. It is true that principles enunciated in section 11 of the Code of Civil Procedure are nothing but a codification of a well‑established and well‑known principle of estoppel, namely, estoppel by judgment. Whether the bar of estoppel can be prayed in aid would depend upon a proper construction of the finding itself. It will be seen that in then previous suit the Court only found that the plaintiff had failed to prove that defendant No. 2 was a sub‑lessee. This does not mean that it has been held that defendant No. 2 was not a sub‑lessee. If the latter had been held, then possibly the plaintiff would have been estopped from re‑agitating the point because it has been finally dispose of in a contested adjudication by a competent Court. But the finding itself was not a final disposal of the point as indicated above. Therefore, the previous decision, as mentioned above, is not at all helpful in this case. As to the finding of the trial Court in the present suit on this question, I would take leave of it by saying that the said Court has considered all the relevant evidence with regard to the question in issue and has given its decision accordingly. I have not been shown as to how the trial Court had misdirected itself. The question simply boils down to a question of appreciation of evidence. Even if I were called upon to reassess the evidence in this case my own appreciation of it would not have been different from the view taken by the trial Court. I, therefore, hold that there is no substance in this point, which has been canvassed before me on behalf of the petitioners. I now turn to the next and last point, namely, the finding of the trial Court that the plaintiff bas succeeded in proving that he requires the suit‑premises for his own bona fide use. In view of the finding, recorded above, this point has become wholly academic. Since I have heard arguments addressed to me at length, I would indicate my view on the same. The finding of the trial Court is that plaintiff has succeeded in establishing that he is in need of the premises in suit for his bona fide requirement. The said Court has fully considered all the relevant evidence in this case. Mr. Moinul Huq has argued that plaintiff himself did not mention that he was already owning a few more shops and has argued that he was guilty of suppression of facts. I do not think that it is possible to say so. Plaintiff's case on this point is a simple one, namely, that he was about to retire from service as a clerk and that be has eight members in his family to look after. His case is, that lie is, therefore, in need of a supplementary income to keep the family pot boiling. Whether plaintiff was the owner of a few more shops is a debatable proposition. It has not been established that he had owned the aforesaid shops. Even if, he had owned a few strops out of which he used to derive some income, the fact that stares one in the face is that such income was derived by him at a time when he was already in service. A supervening circumstance has altered the previous position, that is, the plaintiff is about to retire from service. As to what actually is the need of the plaintiff, he himself is the best judge. If the Court, on a consideration of the evidence and circumstances of this case, has come to the conclusion that plaintiff's requirement is bona fide and there is hardly any reason to disbelieve it, mere pointing one's finger to some other source of income is not enough to dislodge the claim of bona fide requirement. However, it transpires that the trial Court has fully adverted to the evidence of parties on this point and has come to the conclusion that plaintiff has succeeded in proving his bona fide requirement of the suit‑premises. There is no reason why I should interfere with the aforesaid finding. The application is, therefore, rejected without any order as to costs. The petitioners must vacate the premises within six weeks from today. Mr. Moinul Huq has asked for leave to appeal under clause 15 of the Letters Patent. I am not disposed to grant the prayer. In any event, since I am hearing an application under section 25 of Provincial Small Cause Courts Act, no question of such leave arises. The prayer for leave is refused. K. B. A. Application dismissed.