P L D 1957 Dacca 586 (PLP)

RAHMAN, J.‑This is an application under section 115 of the Code of Civil Procedure for revising an order of the Subordinate Judge, 1st Court, Chittagong, passed in the course of an appeal transferred to him by the District Judge Chittagong, under the provisions of subsection (3) pf section 29 of the East Bengal Premises Rent Control Act, 1953. The facts relevant for the purposes of this application are: The petitioner lodged a complaint before the Rent Controller Chittagong, under section 22 of the East Bengal Refit Ordinance, 1951, for penalising the landlady on account Of certain alleged interferences and disturbances caused to the said petitioner. In this matter, the Rent Controller after various proceedings imposed a fine of Rs. 100, on the landlady the opposite‑party before me. As against the said order, and appeal was preferred under the, provisions of the aforesaid Act to the District Judge, Chittagong, and the learned District Judge fixed the 11th of June 1955, for a peremptory hearing of the appeal. On that date, an application was moved before him for an adjournment on the ground that the learned Pleader of the opposite‑party had been suddenly taken ill. This adjournment was, however, refused, and the case was transferred to the Court of the First Subordinate Judge for hearing. On the same date, as no one was present to take arty steps on behalf of the opposite‑party, the appeal was dismissed for default. Thereafter, on the 22nd June 1955, an application was made to the said learned Subordinate Judge, purporting to be an application under the provisions of Order XLI rules 19 of the Code of Civil Procedure for restoration of the appeal. This application was allowed on the 6th of August 1955, on the condition that the opposite‑party deposit a sum of Rs. 25 as costs by the 12th of August 1955. As the said sum was duly deposited, the case was finally disposed of and the appeal was restored on the latter date. It is against this order that the petitioner has come up before me. It is contended on his behalf that the order was clearly without jurisdiction, and, therefore, wholly illegal; Mr. Nandi, the learned Advocate for the petitioner, argues that the powers of a District Judge or a Subordinate Judge to whom the District Judge may transfer under the provisions of either the East Bengal Premises Rent Control Act, 1953, or the East Bengal Premises Rent Control Ordinance, 1951, are strictly limited by the provisions of the relevant sections in the said Act and Ordinance. According to him, these pro visions, being in the nature of special powers vested in the authorities specified therein, should be construed strictly, and upon such strict construction, it must be held that the provisions of Order XLI, of the Code of Civil Procedure are not attracted to appeals from orders of Rent Controllers, which the District Judge is thereby empowered to hear. The learned Advocate for the petitioner did not, however, cite any authorities in support of this contention, but it appears that there are at least two decisions of the Calcutta High Court based upon constructions of similar provisions contained in the relevant Rent Control Acts. These are the cases of Bibhuti Bhusan v. Surendra Mohan Lahiri (A I R 1950 Cal. 96), and Indra Kumar Karnani v. C. C. Ganguly and another (87 C L J 130). The case reported in A I R 1950 Cal. 96 was under the Rent Control Ordinance, 1946, wherein it was held that the Rent Controller was not a Court, and the District Judge does not act as a Court of Appeal in the sense in which the Civil P. C., contemplates a Court of Appeal, and hence no question of the applicability of Order XLI, or anything analogous thereto, arises with regard to such appeals. The case reported in 87 C L J 130 was a case in which a writ of prohibition or certiorari was asked for against the Chief Judge of the Small Causes Court sitting as an Appellate Authority over decisions of Rent Controllers under the Rent Control Act of 1948. There P. B. Mukharji J. of the Calcutta High Court held that neither the said Rent Control Act nor the rules made thereunder invest the Chief Judge with the same jurisdiction as that of an ordinary Court of Appeal under Order XLI of the Code of Civil Procedure, and that the words "decide the appeal" only gave power to the Chief Judge either to dismiss the appeal in toto or grant the appeal in toto or allow the appeal within the limits of the appellant's claim. As against this, Mr. Ahmad Sobhan, appearing on behalf of the opposite‑party, contended himself merely by submitting that the District Judge, sitting as an appellate authority, had all the powers of a Court of Appeal, and the only authority he cited in support of this proposition was the case of Bazler Rahman Khandkar v. Amiraddin and others (48 C W N 699), in which case Biswas and Latifur Rahman JJ., while considering the functions of the District Judge under section 40‑A of the Bengal Agricultural Debtors Act, held that the District Judge, under the provisions of the said Act, was a Court and a Court subordinate to the High Court giving the High Court con sequent powers of revising under section 115 of the Code of Civil Procedure the decisions of such District Judge. Before I take up the consideration of this specific question I must mention here that when I pointed out to the learned Advocate for the petitioner that, if I agree with him and hold that the powers of the District Judge, either under section 30 of the Ordinance of 1951 or section 29 of the Act of 1953 (which are in identical terms) are strictly limited, then it would follow that the earlier order of the learned Subordinate Judge dismissing the appeal for default would also be an order without jurisdiction, and that I would, as such, be entitled under section 115 of the Code of Civil Procedure suo motu to set aside that order as well. The learned Advocate, in answer to this, contended that, since under subsection (3) of section 30 of the Ordinance the power had been given to the District Judge to "either hear and dispose of" the appeal, this necessarily included the power of dismissing for default which was, at any rate, a disposal of the appeal. He further con tended that even if this was a case coming not under subsection (3), but under subsection (4) of the said section, then, although the language used there is, "shall decide the appeal", that also included the power to dispose of the appeal and dismiss it for default. It appears to me, however, that there is a distinction between "deciding an appeal" and "disposing an appeal". In my view, the word "decide" connotes a determination of the question in issue, or a rendering of judgment upon the questions in issue; but "dispose" is a wider term and may include the power to dismiss for default. It is significant that even under the Code of Civil Procedure these two words are used in different and distinct senses, as, for instance, the words "decide the suit forthwith" in rule 3 of Order XVII of the Code of Civil Procedure are not of the same connotation as "final disposal of the suit" in rule 4 of Order XV, of the said Code. Indeed, there are decisions where this distinction appears to have been pointed out, and it has been held that "decide a suit" is not equivalent to "dismiss a suit" for want of prosecution (vide the case of Babu Ganga Parsad v. Nandu Ram (20 C W N 1080)). It appears to me that in the relevant provisions of the Rent Control Act of 1953, and the Rent Control Ordinance of 1951, the words have also been used in this distinct sense, and the power to "hear and dispose" contained in sub section (3) of section 30 of the Ordinance, and section 29 of the Act is intended to be used at a stage before the appeal is admitted, and the records of the case called for from the Rent Controller. Subsection (4) of the said section is attracted, in my view, after the records have been called for, as they were in this case, and then the only power is to "decide" the appeal, which, according to my view, is to decide the appeal after the hearing, and would not include the power to dismiss the appeal for default at that stage, if the strict construction is to be adopted. Having regard, however, to the view that I have formed as to the powers of the District Judge under these provisions, it is not necessary for me to enter into a further discussion of this question. The cases reported in A I R 1950 Cal. 96 and 87 C L J 130, to which I have referred earlier, were based upon the view that the District Judge, in exercising his powers of appeal under the relevant Rent Control Acts, was merely a persona designata and not a Court. It was in that view, that their Lordships of the Calcutta High Court held that the provisions of Order XLI, of the Code of Civil Procedure could not be said to be attracted to such appeals before the District Judge or the Chief Judge, under those Acts. In view, however, of the latest decision of this Court, in the case of Azizul Huq v. Hanif Ltd., Dacca and others (7 D L R 287), (to which I am a party), I must say that those decisions cannot now be held to be applicable. In the case of Azizul Huq v. Hanif Ltd., it 'was held that the District Judge, under section 29 of the Act of 1953 meant "the Court of the District Judge", and that this was a case in which merely his jurisdiction as such had been extended by a special Act. In this view of the matter, it seems to me that it must also follow that since the District Judge or the Subordinate Judge, to whom the District Judge may transfer the appeal, becomes seised of the appeal as ordinary Courts of the country under the Code of Civil Procedure, the said Courts must also be governed by the ordinary rules of procedure applicable to such Courts. This principle has been repeatedly laid down by their Lordships of the Judicial Committee as will appear from the observations of their Lordships in the following cases: In the case of Secretary of State for India in Council v. Chetlikani Rama Rao and others (43 I A 192) where the question for consideration was as to, whe re other an appeal would lie to the High Court from a decision of a District Judge on appeal, under the provisions of the Madras Forest Act, 1882, from the decision of the Forest Settlement Officer, and would such an appeal be subject to the provisions of the Code of Civil Procedure. Their Lordships took the view that the District Judge under the said Act meant "a principal Civil Court of original jurisdiction", and in such circumstances since "the claim was the assertion of a legal right to possession of and property in land; and if the ordinary Courts of the country are seised of a dispute of that character, it would require, in the opinion of the Board, a specific limitation to exclude the ordinary incidents of litigation." This view was reiterated by their Lordships in the case of Maung Ba Thaw v. Ma Pin (61 I A 158), where, in considering whether under the Provincial Insolveney Act, 1920, which provided specifically that the decision of the District Court under the said Act was to be final, but gave a right of appeal to the High Court from decisions of the District Judge on certain specified matters, further appeal would lie to the Privy Council their lordships of the Judicial Committee held that since a right of appeal bad been given to the High Court, a further appeal from the decision of the High Court would lie to the Privy Council under, and subject to, the Code of Civil Procedure, and observed at page 161 that‑‑ '. , . When such a right of appeal is given to one of the ordinary Courts of the country, the procedure, orders and decrees of that Court will be governed by the ordinary rules of the Code of Civil Procedure". In the case of R. M. A. R. A. Adaikappa Chettiar and another v. R. Chandrasekhara Thevar (A I R 1948 P C 12 : P L D 1947 P C 279), their Lordships of the Judicial Committee again reiterated this view, and observed at page 14 that: "The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seised of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special Statute which does not in terms confer a right of appeal". In the face of such authoritative pronouncements, I find it difficult to say that once the District Judge, under the pro visions of the Rent Control Act of 1953, or the provisions of the Ordinance of 1951, has been held to be, as he was in the case reported in 7 D L R 287, the ordinary Court of the District Judge, the proceedings before him are not also governed by the ordinary rules applicable to such a Court. In this view of the matter, it is apparent that the District Judge or the Subordinate Judge, to whom the District Judge transfers the appeal, instead of exercising his powers himself under the aforesaid provisions, would have the powers of both dismissing an appeal for default and restoring the same under the provisions of Order XLI, rule 19, or provisions analogous thereto. In these circumstances, this rule must be discharged; but since neither of the learned Advocates appearing before me cited any one of the above authorities, to which I have referred, I make no order as to costs. K.B.A. Rule discharged.