Firdous Omer (D) By Lrs. & Ors vs Bankim Chandra Daw (D) By Lrs.& Ors

1. The original plaintiff, Sheikh Mohammad Omer, the predecessor-in-interest of the appellants herein, filed the suit C.S. No.145 of 1983 in the High Court of Calcutta praying for a declaration that he was a valid and lawful tenant in respect of the plaint schedule premises and indicated in the plan annexed to the plaint, for a perpetual injunction restraining the defendants, the owner and those who were claiming under or through him from the interfering with his possession of the premises and for other consequential reliefs. The case of the plaintiff was that he had taken the suit premises on lease for being enjoyed along with the adjacent premises belonging to him and that on the expiry of the term of the lease which was for 25 years, the plaintiff continued to be a tenant from month to month and the owner and those claiming under or through him, were not entitled to interfere with his right as a tenant. The defendants, the owner and those claiming under or through him, resisted the suit by denying the claim of the plaintiff that he was a tenant from month to month and setting up a plea that on the expiry of the term of the lease relied on by the plaintiff, the plaintiff had abandoned the premises, the owner had taken possession of it and there was no subsisting tenancy in his favour as claimed by the plaintiff.

3. For about 15 long years, it seems that the suit was not even listed. On 21.7.1999, the suit appeared in the scrutiny list of the Master under the Rules of the Original Side of the Calcutta High Court. No one appeared on behalf of the additional plaintiffs. The Master adjourned the suit to another date in the same month. On 29.7.1999, the suit again appeared before the Master in the scrutiny list. Again, there was no representation on behalf of the plaintiffs. The Master therefore directed that the suit be posted before the trial judge in the special list in terms of Rule 35 of Chapter X of the Original Side Rules.

11. After all, a dismissal of the suit for non- prosecution or for non-appearance of the plaintiff is not a decree as specified by the Section 2(2) of the Code itself. Hence it is not appealable as a decree. Of course, the Calcutta High Court seems to have taken the view that the order of dismissal would amount to a judgment and hence appealable under clause 15 of the Letters Patent. We do not think it necessary to decide for the purpose of this case, whether dismissal of a suit for default on the part of the plaintiff would amount to a judgment within the meaning of clause 15 of the Letters Patent. We leave that question open for the present.

13. Coming back to the case on hand, since we find that in case we were to allow this appeal and restore the suit, that will result in an order inconsistent with the order dismissing the suit as against S.M. Naqi, one of the legal representatives of the deceased original plaintiff, which has become final, we are unable to grant the appellants any relief. Thus, we decline to interfere with the decision of the High Court. We may also notice that the appellants have not acted bona fide in impleading the deceased co-plaintiff as a respondent in the Petition for Special Leave to Appeal as if he were alive and then seeking to bring on record his legal representatives in this Court.

14. Thus, though on law, we are inclined to disagree with the High Court that the suit could not be restored, we decline to interfere with its decision for the reason mentioned above. We dismiss the appeal. In the circumstances, we make no order as to costs.