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Sukhendu Bikash Barua v. Hake Krishna De And Ors.
Structured Summary of the Opinion (Das, J.)
Factual and Procedural Background
The plaintiffs (respondents) commenced proceedings in September 1949 under section 41 of the Presidency Small Cause Courts Act, alleging they required the disputed premises for their own use. The suit was registered as Suit No. 10455 of 1949 and was decreed on contest by Mr. B.P. Bakshi (4th Bench) by a decision dated 28th August 1949. The defendant appealed to the Special Bench, which dismissed the appeal on 23rd March 1951.
Thereafter the defendant filed a petition purportedly under section 115 of the Code of Civil Procedure and Article 227 of the Constitution. A Rule was issued (Civil Rule No. 1437 of 1951). Chunder, J. heard the Rule and by his judgment dated 28th March 1952 discharged it. The defendant (now appellant) filed an appeal under clause 15 of the Letters Patent against Chunder, J.'s judgment. The appeal raised a preliminary issue of competence (whether such an appeal lies under clause 15) and substantive issues concerning the applicable Rent Control Act and the meaning of "requirement of the landlords."
Legal Issues Presented
- Whether an appeal lies under clause 15 of the Letters Patent against an order passed by a single Judge of this High Court purportedly under section 115 of the Code of Civil Procedure and Article 227 of the Constitution.
- Whether the judgment of Chunder, J., insofar as it was a dismissal of an application under Article 227 of the Constitution, is an exercise of the Court's power of superintendence (formerly conferred by Section 107 of the Government of India Act, 1915) and therefore excluded from appeal under clause 15.
- On the merits (as considered by the Court): whether Chunder, J. was wrong in (a) treating the test of bona fide requirement as to be judged by reference to the Rent Control Act, 1948 or the Rent Control Act, 1950, and (b) interpreting "the requirement of the landlords" as meaning requirement by all landlords as a body or by some of them.
Arguments of the Parties
Appellant's Arguments (as presented by Mr. Roy)
- Challenged the competence of the appeal: the appellant advanced arguments about whether the judgment of Chunder, J. could be treated as not being made in exercise of powers of revision or powers of superintendence, and thus whether clause 15 permitted an appeal.
- Conceded that insofar as Chunder, J.'s judgment purported to be an exercise of revision under section 115, clause 15 did not confer a right of appeal (concession based on Byomkesh Seth v. Bhutnath Pal).
- Pressed the argument that insofar as Chunder, J.'s judgment was a dismissal under Article 227, it was not an exercise of powers of superintendence under Section 107 of the Government of India Act, 1915, and therefore might be appealable under clause 15.
- Raised substantive objections to Chunder, J.'s treatment of the test of bona fide requirement (whether governed by Rent Control Act, 1948 or Rent Control Act, 1950) and to the interpretation of "requirement of the landlords" (whether it meant requirement of the landlords collectively or of some landlords).
Respondent's Arguments (as presented by Mr. Dutt)
- Raised a preliminary objection that the appeal was incompetent — i.e., that clause 15 of the Letters Patent did not permit an appeal against the judgment of a single Judge in the circumstances of this case.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chappan v. Moidin (I.L.R. 22 Mad. 68) | Madras Full Bench view that an appeal lay against a judgment of a single Judge in a Civil Revision case. | Noted as an early, divergent authority supporting that an appeal lies against single-Judge revisional judgments; used to illustrate historic conflict between High Courts. |
| Shew Prasad v. Ram Chunder (I.L.R. 41 Cal. 323) | Held that High Court has right to interfere by way of revision and that if interference takes form of a judgment by a single Judge, the High Court has power to deal by way of an appeal with that judgment. | Cited to show that an earlier Bench had interpreted Charter Act/Letters Patent/Presidency Small Cause Courts Act so as to support appeals from single-Judge revisional judgments; used to demonstrate jurisprudential divergence later addressed by amendments to the Letters Patent. |
| Byomkesh Seth v. Bhutnath Pal (34 C.L.J. 489) | Bench decision that no appeal lies against the judgment of a single Judge passed in a Civil Revision case (post-1919 amendment). | Relied upon by the Court (and expressly conceded by Mr. Roy) to support the proposition that clause 15 does not permit appeals from single-Judge orders made in exercise of revisional jurisdiction. |
| Chairman, Budge Budge Municipality v. Mungru Mia (57 C.W.N. 25) | Considered meaning of reference to section 108 of the Government of India Act in clause 15; held that by applying Interpretation Act and General Clauses Act the reference should be construed as reference to Art. 225 of the Constitution. | Adopted by the Court to support application of general interpretation principles (section 38(1) of the Interpretation Act and section 8 of the General Clauses Act) in construing clause 15 of the Letters Patent with respect to constitutional provisions. |
| Shaikh Sadai Ali v. Daliluddin (32 C.W.N. 1130) | Special Bench applied general principles akin to the General Clauses Act in interpreting the amended Letters Patent; held amendment did not have retrospective operation for pending second appeals. | Referred to as authority for applying general interpretive principles to the Letters Patent amendments and for the view that amendments do not operate retrospectively in certain respects. |
| Shew Prosad Bungshidhar v. Ram Chunder Hari Bux (I.L.R. 41 Cal. 323) | Bench had left undecided the applicability of the General Clauses Act to clause 15 of the Letters Patent. | Noted by the Court as part of the historical treatment of the interpretive question; the present Court treats the matter as now covered by the Budge Budge decision. |
| Narendra Nath Shasmal v. Binode Behary Dey (56 C.W.N. 23) | Stated that Article 227 allows High Court interference in special cases; such interference is rare and only when justice clearly demands it. | Applied in the Court's merits analysis to support the conclusion that interference under Article 227 is exceptional and that Chunder, J.'s decision did not show a lack of proper exercise of discretion warranting interference. |
Court's Reasoning and Analysis
The Court proceeded in deliberate steps, grounded in statutory history, amendments to the Letters Patent, and precedent:
- Textual starting point: The Court set out the relevant portion of clause 15 of the Letters Patent (as amended) and identified the key question whether clause 15 permits an appeal against a judgment of a single Judge made in what the parties described as an application under section 115 CPC and Article 227 of the Constitution.
- Legislative and historical context: The Court traced the evolution of revisional and superintendence powers — from early Codes of Civil Procedure, through the Indian High Courts Act, 1861 (section 15), subsequent statutes extending revisional powers (Acts of 1877, 1879, consolidated in Act XI of 1882), to the Code of Civil Procedure, 1908 (section 115) and later Government of India Acts (1915 and 1935). This history was used to explain the nature of the powers now invoked and to situate clause 15's references.
- Jurisprudential divergence and amendments: The Court recited earlier conflicting High Court authorities on whether appeals lay from single-Judge revisional judgments (citing Chappan and Shew Prasad) and the consequent amendments to the Letters Patent (1919 and 1927) intended to address that divergence.
- Interpretive tools and application: The Court considered whether section 8 of the General Clauses Act (and related interpretive provisions) required reading references in clause 15 to earlier statutory sections (e.g., Section 107 of the Government of India Act, 1915, or section 224 of the Government of India Act, 1935) as references to the corresponding constitutional provision (Article 225/Article 227 as the case may be). The Court accepted the application of these interpretive rules as articulated in Chairman, Budge Budge Municipality v. Mungru Mia and related decisions.
- Conclusion on competence: From the text of the amended clause 15, the legislative history and interpretive rules, the Court concluded that the relevant expression in clause 15 excludes a judgment pronounced by a single Judge in exercise of the powers of revision or in exercise of the powers of superintendence under Article 227 of the Constitution. Accordingly, the preliminary objection that the appeal is incompetent must prevail.
- Consideration of merits (alternative/secondary analysis): The Court nonetheless considered the substantive matter. It observed that interference under Article 227 is exceptional (citing Narendra Nath Shasmal) and concluded that Chunder, J.'s decision — which dealt with whether the bona fide requirement test should be judged by reference to Rent Control Act, 1948 or Rent Control Act, 1950, and whether "requirement of the landlords" meant requirement of the body of landlords or of some of them — did not exhibit such an error as to justify interference. The Court found it difficult, as a court of appeal, to say that Chunder, J. did not properly exercise his discretionary powers under Article 227.
Holding and Implications
Holding: The appeal is dismissed. The Court held that clause 15 of the Letters Patent excludes an appeal against a judgment pronounced by a single Judge in exercise of revisional powers under section 115 CPC or in exercise of the powers of superintendence under Article 227 of the Constitution; accordingly the preliminary objection of incompetence succeeded.
Implications:
- Direct effect on the parties: The appellant's appeal fails and is dismissed; there will be no order as to costs in the circumstances of this case (i.e., the Court ordered no costs).
- On broader effect: The Court applied established interpretive rules and prior authorities to construe clause 15. The judgment affirms the existing line of authority (as discussed in the opinion) that appeals do not lie under clause 15 from single-Judge orders exercising revisional jurisdiction or Article 227 superintendence. The opinion does not purport to create an entirely new rule outside of that interpretive framework; it applies prior decisions and statutory interpretation to the facts before the Court.
Disposition: Appeal dismissed; no order as to costs.
Das, J.:— This is an appeal by the defendant and is directed against a judgment of Grander, J., dated the 28th of March, 1952.
2. The facts are that in September, 1949, the plaintiffs respondents initiated proceedings under section 41 of the Presidency Small Cause Courts Act alleging that they required the disputed premises for their own use. The proceedings were numbered as suit No. 10455 of 1949. The suit was decreed on contest by Mr. B.P Bakshi, learned Judge, 4th Bench, his decision being dated the 28th August, 1949. Against that judgment an appeal was taken by the defendant to the Special Bench. The Special Bench dismissed the appeal on the 23rd of March, 1951. Thereafter the defendant filed a petition purporting to be under section 115 of the Code of Civil Procedure and Art. 227 of the Constitution. A Rule was issued being Civil Rule No. 1437 of 1951. The Rule came up for hearing before Chunder, J., who by his judgment dated the 28th of March, T952, discharged the Rule. Before the learned Judge two points appear to have been raised, namely, (1) whether the question whether the premises were required for the bona fide use of the landlords must be judged by a reference to the provisions of the Rent Control Act, 1948, or the Rent Control Act, 1950. (2) whether the requirement contemplated by the Rent Control Act must be requirement of any one or more of the landlords. Chunder, J., overruled the contentions on behalf of the petitioner and discharged the Rule as I have already stated. Against the judgment pronounced by Chunder, J., on the 28th March, 1952, the defendant has filed the present appeal under clause 15 of the. Letters Patent. The appeal has come, up before us for disposal. Mr. Dutt, learned Advocate on behalf of the respondents, has raised a preliminary objection that the appeal is incompetent. The question is whether an appeal against an order passed on an application purporting to be under section 115 of the Code of Civil Procedure and Art. 227 of the Constitution lies under clause 15 of the letters Patent;
3. The Letters Patent was originally issued on May 14, 1862, and was amended on the 28th of December, 1865. The relevant portion of clause 15 of the Letters Patent, as amended, is in these terms:
“And we do further ordain that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal from the judgment not being a sentence or an order passed or made in any criminal trial of one Judge of the said High Court or one Judge of any Division Court pursuant to section 13 of the said recited Act.”
4. The said recited Act refers to the Indian High Courts Act, 1861 (24 and 25 Victoria, Ch. 104). It is necessary at this stage to state the provisions of the Code of Civil Procedure and of the different Acts relating to the powers of the High Court. The earliest Code of Civil Procedure was Act VIII of 1859. That Act did not confer on this Court any power of revision. Such powers of revision were conferred for the first time by the Civil Procedure Cods of 1861 (Act XXII of 1861). Section 35 of the said Act conferred a very limited power of interference in revision, the power being limited to cases where the lower appellate Court exceeded its jurisdiction. Meanwhile, on August 6, 1861, the Indian High Courts Act, 1861, also called the Charter Act, conferred on the High Court by section 15 thereof the power of superintendence over all Courts subordinate thereto. By Act X of 1877 the powers of revision conferred on this Court were extended so as to include cases similar to those contemplated in clauses (a) and (b) of section 115 of the Code of Civil Procedure, 1908. The powers of revision were further enlarged by section 42 of Act XII of 1879. The powers of revision which were conferred on this Court by the last two Acts are identical with the powers which this Court now enjoys under section 115 of the Code of Civil Procedure, 1908. The aforesaid two Acts, namely, Act X of 1877 and Act XII of 1879, were consolidated and section 622 of Act XI of 1882 conferred on this Court powers of revision identical with those specified in section 115 of the Code of Civil Procedure, 1908. Act XI of 1882 was superseded by the present Code of Civil Procedure (Act V of 1908). Section 115 of the latter Act corresponds to section 622 of the Act of 1882.
5. The Indian High Courts Act, 1861, was repealed by the Government of India Act, 1915. In the latter Act, which is also a Parliamentary Statute, we find in section 107 the analogue of section 15 of the Indian High Courts Act, 1861. The Government of India Act, 1915, was repeal ed by the Government of India Act, 1935. Section 107 of the Government of India Act, 1915, was substituted by section 224 of the Government of India Act, 1935. It may be pointed out that section 224(2) of the Government of India Act, 1935, expressly took away from the High Court its power of superintendence in judicial matters.
6. Shortly after the issue of the Letters Patent in 1865 questions arose as to whether an appeal would lie from a judgment of a Judge of this Court sitting singly passed in a Civil Revision case. As was to be expected, difference of opinion in the different High Courts soon manifested itself. In an early case in Madras, namely, the case of Chappan v. Moidin (1) (I.L.R 22 Mad. 68) a Full Bench of the Madras High Court was of the opinion that an appeal lay against such a judgment. Subramania Ayyar, J., who delivered the leading judgment was of the opinion that though the Letters Patent did not specifically provide for powers of revision, powers of revision exercised by the High Court were exercised by the Court and such jurisdiction was not original jurisdiction but rather akin to appellate jurisdiction. The question arose in this Court in the case of Shew Prasad v. Ram Chunder (2) (I.L.R 41 Cal. 323). The judgment of the Bench was pronounced by Jenkins, C.J After referring to the decision on the Madras Full Bench and the relevant provisions of the Letters Patent, the Charter Act and the Presidency Small Cause Courts Act, which was then in question, it was observed as follows:
“I think the fair reading of the Charter Act, the Letters Patent and the Presidency Small Cause Courts Act leads to the result that the High Court has a right to interfere by way of revision and if that interference takes the form of a, judgment by a single Judge, then the High Court has the power to deal by way of an appeal with the judgment” (pages 333 and 334).
In consequence of the divergence of opinion between the different High Courts on the question whether an appeal lay under clause 15 of the Letters Patent against 3 judgment of a single Judge exercising powers of revision, the Letters Patent came to be amended on the nth of March, 1919, by substituting the following words “not being an order made in exercise of revisional jurisdiction and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, 1915, or in the exercise of criminal jurisdiction” for the words “not being a sentence or order passed or made in any criminal trial.”
7. Shortly after the amended Letters Patent the question whether an appeal lay from the judgment of a single Judge passed in a Civil Revision case came up for consideration before a Bench of this Court in the year 1921. The Bench had to consider whether an appeal lay against an order passed by Newbould, J., on the 2nd of February, 1920, that is, on a date subsequent to the amendment of the Letters Patent in 1919. In the case of Byomkesh Seth v. Bhutnath Pal (3) (34 C.L.J 489). the Bench was of the opinion that no appeal lay. The other High Courts also took the same view.
8. On the 9th of December, 1927, the Letters Patent was further amended. It is necessary for the present purpose merely to state that for the words “pursuant to section 13 of the said recited Act” were substituted the words “pursuant to section 108 of the Government of India Act”. The meaning of the expression “pursuant to section 108 of the Government of India Act” came to be considered by the Special Bench in the case of Chairman, Budge Budge Municipality v. Mungru Mia (4) (57 C.W.N 25) which was a case arising out of an application under Art. 226 of the Constitution. It was observed by the Chief Justice that by virtue, first, of section 38(1) of the Interpretation Act, 1889, which applied to the Government of India Act, 1935, and then of section 8 of the General Clauses Act which applied to the Constitution, the reference to section 108 of the Government of India Act in clause 15 of the Letters Patent must now be construed as reference to Art. 225 of the Constitution (page 37).
9. The judgment of Chunder, J., which was passed in an application under section 115 of the Code of Civil Procedure and Art. 227 of the Constitution must therefore be read as a judgment passed by a Judge sitting singly pursuant to section 108 of the Government of India Act, 1915. It is not disputed that the decision of Chunder, J., was a judgment within clause 15 of the Letters Patent. The question which has been debated before us is whether the judgment of Chunder, J., can be regarded as not being a judgment made in a Civil Revision case or in exercise of the powers of superintendence under Section 107 of the Government of India Act, 1915.
10. Mr. Roy who has appeared in support of the appeal has fairly conceded that in so far as the judgment of Chunder, J., purports to be one made in exercise of the powers of revision under section 115 of the Code of Civil Procedure, clause 15 of the Letters Patent does not confer a right of appeal the concession is based on the Bench derision of this Court in the case of Byomkesh Seth v. Bhutnath Pal (3) (34 C.L.J 489). The question which Mr. Roy has pressed before us is that the judgment of Chunder, J., in so far as it can be regarded as being a dismissal of the application under Art. 227 of the Constitution, is not a judgment made by this Court in exercise of the powers of superintendence under Section 107 of the Government of India Act, 1915. I have already pointed out that Section 107 of the Government of India Act, 1915, was superseded by section 224 of the Government of India Act, 1935. The contention is that section 224 of the Government of India Act, 1935, took away from this Court its power of interference in judicial matters, and if section 8 of the General Clauses Act, 1897, is deemed to have been attracted, and the reference to Section 107 of the Government of India Act, 1915, is read as reference to section 224 of the Government of India Act, 1935, it would be meaningless. In order to deal with the contention, I shall refer to the provisions of section 8 of the General Clauses Act (Act X of 1897). That section provides inter alia that where any Central Act or Regulation or any Act of Parliament repeals or re-enacts with or without modification any provision of a former enactment, then reference in any Central Act or Regulation or Instrument to the provision so repealed shall, unless a different intention appears, be construed as reference to the provisions so repealed. Section 107 of the Government of India Act undoubtedly conferred on this Court powers of interference also in judicial matters. section 224 of the Government of India Act, 1935, which replaced Section 107 of the Government of India Act was of a limited application, the jurisdiction of this Court to interfere in judicial matters being expressly taken away by section 224(2). The question is whether section 8 of the General Clauses Act would lead to the result that for Section 107 of the Government of India Act in clause 15 of the Letters Patent, we must road section 224 of the Government of India Act, 1935. Mr. Roy contends that as clause 15 provides for an appeal against a judgment which is a judicial matter, such a conclusion based on section 8 of the Letters Patent is unwarranted. The only effect of the above conclusion is to suspend the right of appeal for the time being. In my opinion it is not permissible to cut down the plain words of section 8 of the General Clauses Act. The whole intention of the amended Letters Patent was to take away the right of appeal which, was held by this Court and the Madras High Court to have existed in cases of a judgment of a Judge sitting singly made in a Civil Revision case. I cannot hold that reference to Section 107 of the Government of India Act in clause 15 of the Letters Patent cannot be read as reference to section 224 of the Government of India Act, 1935. If this is so, then the repeal of the Government of India Act, 1935, by Art. 395 of the Constitution and, the substitution of Art. 227 of the Constitution for section 224 of the Government of India Act, 1935, and consequently of Section 107 of the Government of India Act, 1915, naturally follows. The question whether section 8 of the General Clauses Act applies to the interpretation of clause 15 of the Letters Patent is a matter which is now covered by the decision of the Special Bench in the case of Chairman, Budge Budge Municipality v. Mungru Mia (4) (57 C.W.N 25) to which I have already referred. I may point out that the applicability of the General Clauses Act to clause 15 of the Letters Patent was left undecided by a Bench of this Court in the case of Shew Prosad Bungshidhar v. Ram Chun der Hari Bux (2) (I.L.R 41 Cal. 323). In the case of Shaikh Sadai Ali v. Dalil uddin (5) (32 C.W.N 1130) a Special Bench of this Court proceeded on general principles akin to those provided for in the General Clauses Act in interpreting the amended Letters Patent. The case of Shaikh Sadai Ali v. Daliluddin (5) (32 C.W.N 1130) decided a point which was raised after the amendment of the Letters Patent in 1927, viz., whether the amendment affected pending second appeals. The Special Bench was of the opinion that on general principles the amendment had no retrospective operation. Whether we apply section 8 of the. General Clauses Act or proceed on general principles underlying the Letters Patent, in my opinion, the legitimate inference to draw is to hold that the relevant expression in clause 15 of the Letters Patent excludes a judgment pronounced by a single Judge in exercise of the powers of revision or in exercise of the powers of superintendence under Art. 227 of the Constitution. In my opinion, the preliminary objection must prevail.
11. We have also considered the merits of the contention raised before us.
12. Mr. Roy discussed the scope of the powers of revision under section 115 of the Code of Civil Procedure. It is not necessary to deal with the interesting argument addressed to us by Mr. Roy, because it is common ground that no appeal lies under clause 15 of the Letters Patent against an order made by a Judge sitting singly in exercise of the powers of revision under sec. 115 of the Code of Civil Procedure. The only question which we have to consider is whether a judgment of a Judge sitting singly made in exercise of the powers of superintendence under Art. 227 of the Constitution is appealable under clause 15 of the Letters Patent and whether in the present case the judgment of Chunder, J., can be said to be one where the learned Judge failed to exercise his powers conferred on this Court by Art. 227 of the Constitution. The question which came up for consideration before Chunder, J., related to two matters, namely, whether the test of bona fide requirement has to be judged by a reference to the provisions of the Rent Control Act, 1948, or the Rent Control Act, 1950, and whether the words “the requirement of the landlords” mean the “requirement of the landlords as a body or of some of them”. A. decision on such a question by Chunder, J., affirming the views of the courts below is not such a matter as, in my opinion, calls for interference by this Court under Art. 227 of the Constitution. In the case of Narendra Nath Shasmal v. Binode Behary Dey (6) (56 C.W.N 23), a Bench of this Court was of the opinion that Art. 227 of the Constitution allows the High Court to interfere in special cases, but the interference would, however, be rare and only in cases where justice clearly demands such interference. As a Court of appeal it is difficult for us to say that Chunder, J., did not properly exercise his discretionary powers of interference under Art. 227 of the Constitution. The contentions raised on behalf of the appellant therefore fail.
13. In the result this appeal fails and is dismissed, but in the circumstances of this case, there will be no order for costs.
Debabrata Mookerjee, J.:— I agree.
A.K.D.G
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