(1.) The Judgment of the Court was as follows : This revisional application as per Article 227 of the Constitution of India is directed against order No. 9 dated 18.02.2006 passed by the learned Additional District Judge, Sealdah in connection with R. C. Appeal No.1 of 2005.

(2.) The fact leading to filing of the said appeal may be summarized thus: - i) The present Opposite Party filed one application under Section 6 of the West Bengal Premises Tenancy Act, 1997 against the present petitioner for recovery of possession after evicting him from the property in question. He also prayed for other ponsequential reliefs. The said application was registered as ejectment application No. 59 of 2004 before the Court of Additional Rent Controller at Sealdah which was presided over by learned Additional Civil Judge, Junior Division. The said suit was filed on the ground of default and subletting. ii) The present petitioner contested the said proceeding by filing written objection wherein he denied all the allegations contained in the said application. iii) By order dated 20.4.2005 the said ejectment application was allowed and the Presiding Officer directed the present petitioner to vacate the suit premises and hand over possession to the landlord who is Opposite Party in this case. iv) The tenant preferred appeal being Rent Control Appeal No. 1 of 2005 before the learned Additional District Judge at Sealdah. The tenant also filed one application under Section 5 of the Limitation Act. v) By the order impugned the learned Additional District Judge, Sealdah returned the memorandum of appeal to the learned Advocate appearing on behalf of the tenant appellant for filing the same before the appropriate forum on the ground that he has no jurisdiction to entertain the said appeal.

(3.) Being aggrieved by the said order of the learned Additional District Judge, the tenant petitioner preferred this revisional application.

(4.) Mr. Bidyut Banerjee, learned Senior Advocate for the petitioner tenant challenged the order on the ground that the appellate Court mis-interpreted the statute and passed the impugned order by which the memorandum of appeal was returned to the filing Lawyer. Mr. Banerjee contended further that the law is very clear in this regard. It was his submission that Section 43 of the New Act does not bar filing of appeal before the Additional District Judge at Sealdah.

(5.) Mr. Banerjee contended further that the learned Additional District Judge, Sealdah had the power to entertain appeal under the West Bengal Premises Tenancy Act as per administrative order passed by the learned District Judge, Alipur.

(6.) Mr. Banerjee contended further that it was error on the part of the learned Additional District Judge to return the memorandum of appeal as he had the power to entertain the said appeal. It was the further contention of Mr. Banerjee that a tenant against whom an ejectment order has been passed cannot be remediless, if it is found that the order impugned was passed by the learned Civil Judge, Junior Division in the disguise of Rent Controller. In other words, it was the contention of Mr. Banerjee that the remedy was by filing an appeal before the learned Additional District Judge at Sealdah and that option was taken by the defendant/tenant.

(7.) The said pleas were strongly opposed by Mr. Bagchi, learned Senior Counsel appearing for the Opposite Party. It was contended on behalf of the Opposite Party that the learned Additional District Judge rightly passed the impugned order by which the memorandum of appeal was directed to be returned to the filing Lawyer so that the same can be filed before the appropriate forum.

(8.) He drew the attention of the Court to the fact that the order was passed by the learned Rent Controller on 20.04.2005 by which the application for recovery of khas possession by the landlord was allowed. He further drew the attention of the Court to the latest amendment of West Bengal Premises Tenancy (Amendment) Act, 2005 which was published on 28.4.2005 but effect was given from 19.3.2005. On the basis of the same, it was submitted that the Court should accept that the order of ejectment was passed by the learned Civil Judge, Junior Division having jurisdiction. He further drew the attention of the Court to Section 43 of West Bengal Premises Tenancy Act, 1997 and on the basis of the same he argued that the appeal shall lie from a final order of the Controller to such Tribunal as the State legislature may by law provide.

(9.) The following facts are not in dispute. i) That final order was passed by the Rent Controller (Civil Judge, Junior Division - after amendment in 2005). ii) That a Tribunal has already been formed where appeal has to be filed against any final order of the Controller.

(10.) In this connection, Mr. Bagchi relied upon the following cases : -

"i) Gillanders Arbuthnot and Co. Ltd. v. Corporation of Calcutta and Ors. reported in ( 1986)1 Cal HN 262. ii) Hero Vinoth (Minor)v. Seshammalreported in (SC; Suppl.) ( 2006)3 Cal HN 165 : ( 2006)2 WBLR (SC) 891. iii) Mst. Sugani v. Rameshwar Das and Anr. reported in (SC; Suppl.) ( 2006)4 Cal HN 26 : ( 2006)2 WBLR (SC) 710. iv) Garikapati Veeraya v. N. Subbiah Choudhry & Others. reported in AIR 1957 SC 540. v) Nand Lal and Anr. v. State of Haryana and Ors. reported in AIR 1980 SC 2097. vi) Mamata Ghosh and Ors. v. Mrs. Charu Chandra Mandal and Anr. reported in 60 Cal WN 1032"

(11.) Mr. Banerjee relied upon the following cases: - i) Pasupati Mondal v. Debabrata Jana reported in (1999)2 Cal LT (HC) 403. ii) Sk. Abdul Gaffarv. Mira Das Roy and Ors. reported in (2006)2 Cal HN 5 : (2006)1 WBLR (SC) 561.

(12.) It should be stated here that the learned Additional District Judge referred the administrative order passed by the learned District Judge, Alipur by which he was empowered to take up the Rent Control Appeals. The learned Additional District Judge quoted the said order and came to the conclusion that the said administrative order passed by the learned District Judge, Alipur cannot override the provision of law as per statute.

(13.) In other words, the learned Additional District Judge came to the conclusion that Section 43 of the West Bengal Premises Tenancy Act, 1997 will prevail over the administrative order of the learned District Judge.

(14.) This finding of the learned Additional District Judge was not seriously challenged on behalf of the petitioner. It is also the settled principle of law that provision of statute will prevail over the administrative order and the findings of the learned Additional District Judge in this regard is quite justified.

(15.) Let us now come to the pleas as raised by Mr. Banerjee in course of his argument.

(16.) I have already stated that Mr. Banerjee contended that Section 43 of the Act will not prohibit in presenting an appeal before the learned Additional District Judge at Sealdah. He drew the attention of the Court to paragraph 11 of the case in between Pasupati Mondal v. Debabrata Jana reported in (1992)2 Cal LT (HC) 403 which runs as follows : -

"In view of the decision reported in ( 1978)1 Cal LJ 299, the learned Munsif entertaining a pre-emption case under Section 8 of the West Bengal Land Reforms Act cannot be called a persona designata. It is now settled that the Munsif entertaining a pre-emption application and disposing of that application under Section 9 of the West Bengal Land Reforms Act does not act as a persona designata and acts as a civil Court. If a Munsif can set aside the order of pre-emption passed ex parte by invoking the provisions of Order 9 Rule 13, C.P.C., there is no reason why he cannot invoke the provisions of Order 9 Rule 9 in order to set aside an order whereby he dismissed the application for preemption for default in appearance. It is true that sections 8 and 9 of the West Bengal Land Reforms Act do not specifically prescribe the procedure to be adopted by a Munsif when he finds either of the parties to a pre-emption case under Section 8 of the Land Reforms Act or both the parties absent on the date or at the time when he takes up the pre-emption case for hearing. It is also true that the said sections of the West Bengal Land Reforms Act do not also prescribe the procedure to be adopted when he dismisses the pre-emption case only for default in appearance of the pre-emptor and not on merits. A Munsif having territorial jurisdiction to entertain an application for pre-emption under Section 8 of the Land Reforms Act is, in my view, for all practical purposes a civil Court with all the power to be exercised by a civil Court under the Civil Procedure Code unless the West Bengal Land Reforms Act prescribes a particular procedure to the contrary to be followed by the Munsif and the West Bengal Land Reforms Act is silent as to what a Munsif is to do when he finds the pre-emptor absent at the time of hearing of the pre-emption case. Certainly, he is to proceed in accordance with the provisions of Order 9 Rule 8, C.P.C. and for the instant case, the learned Munsif while dismissing the pre-emption case for default in appearance on the part of the pre-emptor dismissed it virtually under Order 9 Rule 8 and the pre-emptor accordingly prayed for setting aside the order of dismissal and for restoration of the pre-emption case by filing an application under Order 9 Rule 9, C.P.C. Under order 43 Rule 1, an order allowing an application under Order 9 Rule 9, C.P.C. is not available. As such, the objection that no revision lies under Section 115, C.P.C. against the impugned order is not sustainable. It is true that sub-section (6) of Section 9 of the West Bengal Land Reforms Act confers a right of appeal upon a party aggrieved by an order of the Munsif under Section 9. A reading of section 9 makes it clear that the order contemplated under sub section (6) of Section 9 is an order disposing of an application under Section 8 of the Land Reforms Act on merits and not one dismissing the application for default. In such view of the matter, it cannot be said that an appeal lay to the District Judge under sub section (6) of Section 9 of the West Bengal Land Reforms Act against the order dated 18.3.1993 dismissing the pre-emption case for default The fact remains that the pre-emptor did appoint two learned Advocates at two different points of time. From the two vakalatnamas available from the lower Court record it would appear that Mr. Hrishikesh Giri was his erstwhile lawyer for the pre-emption case but subsequently in 1992, that is to say, long before the date of hearing of the pre-emption case, Mr. Sukumar Panda was engaged by him as his lawyer. Had it been the case that both Mr. Sukumar Panda and Mr. Hrisikesh Giri were engaged to be his lawyers at the time when he engaged Mr. S. Panda as his lawyer, the earlier vakalatnama executed in favour of Mr. H. Giri should have been accepted by Mr. S.Panda instead of accepting a fresh Vakalatnama being executed in his favour. It is true that there is nothing on record to suggest that the preemptor engaged the subsequent lawyer with the leave or consent of his previous lawyer. It seems that on 18.3.93 Mr. S. Panda was representing the pre-emptor. It is the positive case of the pre-emptee petitioner that Mr. Hrisikesh Giri was sent for by the Court through peon and he appeared before the Court on 18.3.93 to make the submission to the effect that he had no instructions from his client. Such submission does fit in with the circumstance that the pre-emptor was no longer communicating to his erstwhile lawyer Mr. Hrishikesh Giri because of the fact that he had since engaged another lawyer Mr. S. Panda to conduct his case. After all, it is not the case of the pre-emptee that Mr. S. Panda came before the Court to submit that he had no instructions from his client."

(17.) On the basis of the same, it was contended on behalf of present petitioner that an order passed by a Munsif on the basis of an application under Section 8 of the Land Reforms Act for all practical purpose a civil Court with all powers to be exercised by a Civil Court under Civil Procedure Code.

(18.) Accordingly, Mr. Banerjee submitted that as the impugned order was passed by a Civil Judge, Junior Division, it is to be presumed that the provision of C.P.C. is applicable and appeal lies before the learned Additional District Judge at Sealdah.

(19.) I cannot accept the said plea. In the instant case special provision has been made for preferring appeal against order passed by the Rent Controller and Section 43 of the Premises Tenancy Act, 1997 provides that appeal is to be preferred before the appropriate Tribunal. I have already stated that such Tribunal is in existence and accordingly the said case will not help Mr. Banerjee's client.

(20.) Mr. Banerjee also relied upon the case in between Sk. Abdul Gaffar v. Mira Das Roy and Ors. reported in (2006)2 Cal HN 5. On perusal of the said reported case, it is clear that fact of the said case is different from the present one and I am also of clear opinion that the said reported case will not help Mr. Banerjee's client.

(21.) Let me now discuss the cases referred by Mr. Bagchi, learned Lawyer for the Opposite Party.

(22.) In the case between Mamata Ghosh and Ors. v. Mrs. Charu Chandra Mandal and Anr. reported in 60 Cal WN 1032 , the Hon'ble Court came to the findings that the Tribunal under Section 27 of the Calcutta Thika Tenancy Act is not a Court but a persona designata. The Court further opined that provision of order 41 of C.P.C. is not applicable to an appeal decided under Section 27 of the Act.

(23.) The case in between Nand Lai and Anr. v. State of Haryana and Ors. reported in AIR 1980 SC 2097 will not help Mr. Bagchi's client as the fact of that case is totally different.

(24.) The case in between Garikapati Veeraya v. N. Sybbiah Choudhryand Ors. reported in AIR 1957 SC 540 speaks about the maintainability of appeal "as of right". The said case also dealt with subsequent changes in law on abolition of Federal Court.

(25.) The Head note runs as follows : -

"The right of appeal is not a mere matter of procedure but is a substantive right. The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the Us commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."

(26.) I failed to understand how the said case will help Mr. Banerjee's client as there is clear provision in the Act itself about filing of appeal before proper forum.

(27.) In the case between Mst. Sugani v. Rameshwar Das and Anr. reported in (SC; Suppl.) (2006)4 Cal HN 26: (2006)2 WBLR (SC) 710 the Hon'ble Court opined that right of appeal is neither a natural nor an inherent right attached to the litigation - It is a substantive statutory right to be regulated in accordance with law in force at the relevant time.

(28.) In the instant case there was existence of Tribunal where appeal lies against final order passed by the Rent Controller, (Civil Judge, Junior Division). As such, the said case will support the plea as taken by Mr. Bagchi in course of his argument.

(29.) In the case between Hero Vinoth (minor) v. Seshammal reported in (SC; Suppl.) (2006)3 Cal HN 165 : (2006)2 WBLR (SC) 891 the Hon'ble Court interpreted the provision of Section 100 of Civil Procedure Code. Special attention of the Court was drawn to paragraph 19. On perusal of the said paragraph I failed to understand how the said case will help Mr. Bagchi's client.

(30.) In the case between Gillanders Arbuthnot and Co. Ltd. v. Corporation of Calcutta and Ors. reported in (1986)1 Cal HN 262 the Hon'ble Court discussed about the provision of Section 3A of Calcutta Municipal Act, 1951.

(31.) In the instant case I have already stated that there is clear provision in the West Bengal Premises Tenancy Act, 1997 where appeal is to be filed against any final order. The intention of the legislature is very clear and there is no ambiguity in Section 43 of the said Act.

(32.) In view of the clear provision of law as contained in Section 43 of the West Bengal Premises Tenancy Act, 1997 which has been amended subsequently in the year 2005 and also considering the real intention of the legislature, I am of clear opinion that the learned Additional District Judge, Sealdah was justified in refusing to entertain the application under Section 5 of the Limitation Act and also by passing order for returning the memorandum of appeal to the filing lawyer to file the same before the appropriate forum. I therefore, hold that the instant revisional application is devoid of any merit and accordingly the same is dismissed but without any costs.