P L D 1965 Dacca 407 (PLP)

The learned Additional District Judge, Dacca allowed the appeal by an order made on 9‑3‑57 and set aside the order of the House Rent Controller and assessed the rent for B block at Rs. 120 per men sem. The appellant Yad Mahboob & Company did not move the High Court against this judgment and decree of the learned Additional District Judge made on 9‑3‑

57. Deedar Box, therefore, calculated the rate of the rent of the premises at what was finally settled by the learned Additional District Judge and instituted the money suit for Rs. 1,

200. The appellant did not move the superior Court against the judgment and decree of 9‑3‑57 but instituted a title suit for declaration of the said order as illegal and without jurisdiction. This title suit as stated above was instituted on the 10th February 1958 and dismissed by both the Courts below. The money suit was decreed by the Court of first instance as well as first appellate Court. In these circumstances, Mr. D. C. Bhattacharjee argues that the foundation of the decree in the money suit is the order for enhancement of rent as made by the learned Additional District Judge by his order dated 9‑3‑

57. That order was made without jurisdiction and as such nullity. That being so, the money suit should be dismissed and the title suit which challenges that order should be, according to the learned Advocate, decreed. In support of his contention he claims that there was no provision for an appeal under the law against an order rejecting a review application and the enhancement of rent, having been ordered on an appeal against the rejection of the review application, has been done without jurisdiction. In support of his contention the learned Advocate has placed his reliance on a decision of this Court in the case of Kazi Altaf Hussain v. Mst. Matia Begum and another (P L D 1960 Dacca 449). On a reference to the relevant provisions of law, it appears that subsection (5) of section 29 of the East Bengal Premises Rent Control Act provides for review of an order by the person who passed the same on the ground of the discovery of any new and important matter or evidence or on account of some mistake or for any other sufficient cause. In the case before me the House Rent Controller could review the order made by him but refused to do so and rejected the application. There is no specified provision in section 29 of the Act itself authorising the District Judge to hear an appeal against an order rejecting a review application. Subsection (1) of section 29 of the Act provides for an appeal to the District Judge against an order of the Controller. The provision for review is, however, found as indicated above in subsection (5). The question is whether the word `order' occurring in subsection (1) includes an order rejecting a review application. The doubt has been removed by Rule 11 of the East Bengal Premises Rent Control Rules framed under the authority given in the Act. In that rule it has been specifically stated " . . . . Order XLVII of the First Schedule to the Code of Civil Procedure shall be followed as far as may be . . . . . ". Sub‑rule (1) of rule 7 of Order XLVII of the Code which deals with applications for review provides "An order of the Court rejecting the (review) application shall not be appealable . . . . . ". Rule 11 of the said Rules had made Order XLVII of the Code applicable to the cases under the Rent Control Act. The expression "as far as maybe" occurring in Rule 11 does not create any difficulty inasmuch as the prohibition contained in rule 7 (1) of tile Code that there shall be no appeal against the order rejecting an application for review is certainly possible to be applied. The view expressed above finds support in the following observation of Murshed, J. made in the case of Kazi Altaf Hussain referred to above after an examination of the relevant provisions of law:‑ "I, therefore, think that the learned District Judge, rightly decided that there is no appeal under section 29 of the East Bengal Premises Rent Control Act, 1953, from an order rejecting an application for review under subsection (5) of the said section." Mr. Mesbahuddin, appearing for case of Kazi Altaf Hussain that the decision relied on by Mr. Bhatt the respondents, submits "there is no appeal" against an order rejecting a review applica tion. He, therefore, contends that the case of Kazi Altaf Hussain is not an authority for the proposition that the order of the learned District Judge made on 9‑3‑57 was without "jurisdiction". He, however, submits that if it is held that the said order was without jurisdiction, the title suit would be maintainable. Rule 7 of Order XLVII of the Code is the provision which must govern the situation and that rule says that an order of the Court rejecting the application of review shall not be appealable. The expression "shall not be appealable" clearly means want of any authority or right to hear the appeal or determine and pronounce judgment on appeal. Murshed, J. also must have meant that there was lack of jurisdiction to hear an appeal when he used the expression "there is no appeal". It is true that there is a difference between existence of a jurisdiction and exercise of that jurisdiction. In view of the provisions of law referred to above, I am satisfied that there is absolutely no jurisdiction to entertain an appeal against an order rejecting a review application That being so, the order of the learned Additional District Judge enhancing the rent as made on 9‑3‑57 was without jurisdiction and therefore, a nullity and as such the title suit was undoubtedly maintainable. The view expressed above also finds support in the Full Bench decision of the Calcutta High Court in the case of Hriday Nath Roy and others v. Ram Chandra Barna Sarma and others (24 C W N 723). In that case Sir Ashutosh Mookerjee, C. J. observed as follows "An examination of the cases in the books disclosed numerous attempts to define the term "jurisdiction", which has been stated to be the power to hear and determine issues of law and fact;" "the authority by which judicial officers take cognizance of and decide causes ;" "the authority to hear and decide a legal controversy;" The learned Chief Justice proceeds to observe:‑ "Given such jurisdiction we must be careful to distinguish exercise of jurisdiction from existence of jurisdiction; for fundamentally different are the consequences of failure to c comply with statutory requirements in the assumption and in the exercise of jurisdiction. The authority to decide a cause at all and not the decision rendered therein is what makes up jurisdiction; and when there is jurisdiction of the person and subject‑matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction." Tested in the light of the observations made above, it must be held that in the case before me there was want of jurisdiction to hear the matter. The learned Chief Justice has further held in the aforesaid case: "We must not thus overlook the cardinal position that in order that jurisdiction may be exercised, there must be a case legally before the Court and a hearing as well as a determina tion. A judgment pronounced by a Court without jurisdiction is void." Mr. Mesbahuddin, however, does not contest the proposition that a judgment pronounced by a Court without jurisdiction is a nullity. For the reasons stated above, the Money Suit No. 45 of 1957 must be dismissed and the Title Suit No. 32 of 1958 should be decreed and I order accordingly and both the appeals are allowed; and judgments and decrees of the Courts below are set aside. In the facts and circumstances of the case the parties are left to bear their costs throughout. K. B. A. Appeals allowed.