Jitendra Nath Bhose v. Radharani Bosu — 1963 DIGILAW 130 (CAL)

JUDGMENT 1. This appeal has been filed under Clause 15 of the Letters Patent against the judgment of our learned brother Bijayesh Mukherji, J., delivered on April 11, 1962, in Second Appeal No. 1431 of 1959. By that judgment, our learned brother dismissed the appellant's appeal but gave him leave to appeal under Clause 15 of the Letters Patent, in pursuance whereof, the present appeal was filed on June 26, 1962. 2. The stage, at which this appeal has come up before us, precludes consideration of any question of fact and only questions of law are open for discussion in this appeal. On the point of law also, the crucial question is whether the appeal, in the instant case, from the decree of the trial Court, before the Special Bench of the Court of Small Causes, Calcutta, consisting of the learned Chief Judge and another learned Judge there, was competent and, on the basis of the said challenge of the competency of the said appeal, the appellant presses for discharge of the decree of dismissal, passed by the said appellate Bench, as also the discharge of the decree of dismissal of his second appeal in this Court, passed by our learned brother Bijayesh Mukherji, J. in terms of his aforesaid judgment. 3. The facts, relevant for our present purpose, may be shortly stated as follows: the appellant was a tenant of the disputed premises, comprising the first floor of premises No. 119, Cornwallis Street, Calcutta, under the plaintiff, at a monthly rental of Rs. 45/- per month, payable according to the English calendar. On July 13, 1955, the present suit for ejectment, valued at Rs. 540/-, was brought by the plaintiff (predecessor of the present respondents) for ejectment of the appellant from the disputed premises after service of the necessary notice to quit, alleging, inter alia, in the plain, the ground of default in payment of rent, for depriving the defendant (appellant) of the protection of the prevailing Rent Control legislation, namely, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, which was, admittedly, in force at the time. 4. The suit, in view of the said Act [vide Sec. 16, read with Schedule B], was filed before the Court of Small Causes, Calcutta. 4. The suit, in view of the said Act [vide Sec. 16, read with Schedule B], was filed before the Court of Small Causes, Calcutta. It was decreed by the learned trial Judge on April 24, 1958, and, against the said decree, the appellant preferred an appeal to the Special Bench of that Court (the Court of Small Causes, Calcutta) under sec. 32 (6) (ii) of the aforesaid Act, which was heard eventually by the learned Chief Judge and another learned Judge there, who, by their judgment and decree, dated July 21, 1959, dismissed the appellant's appeal. Thereupon, the above second appeal was filed in this Court on September 19, 1959, and, as stated above, it was, eventually, dismissed by our learned brother Bijayesh Mukherji, J. on April 11, 1962. The present Letters Patent Appeal was, thereafter, filed, as already stated, pursuant to the leave, granted by our learned brother, on June 26, 1962. The appellant's contention now is that our learned brother ought to have held that his (appellant's) appeal in the Court of Small Causes, Calcutta, was incompetent in the instant case and, upon that view, ought to have discharged the decree of dismissal, passed in the said appeal, and directed a return of the memorandum thereof for presentation to this Court. 5. The further contention raised, following the above, is to the effect that the decree of dismissal, passed by our learned brother, should also be discharged with the consequential order that the Memorandum of Appeal, as filed before the Court of Small Causes, Calcutta, in the instant case, should be returned to the learned lawyer for the appellant for presentation to this Court as the proper forum in this case for the filing of the appeal from the decree of the learned trial Judge. In other words, the appellant seeks, in this appeal, to wipe out the adverse consequences, arising from the events, which nave happened, namely, the dismissal of his appeal by the Court of Small Causes, Calcutta, that is, by the Special Bench there, as aforesaid, and of the second appeal in this Court. 6. The respondents demur and their contention is that, under the law, as it stood at the relevant time, the appellant's appeal before the Court of Small Causes in the instant case was fully competent and maintainable as one under sec. 6. The respondents demur and their contention is that, under the law, as it stood at the relevant time, the appellant's appeal before the Court of Small Causes in the instant case was fully competent and maintainable as one under sec. 32 (6) (ii) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, the value of the corresponding suit being Rs. 540/-, that is, not exceeding Rs. 5,000/-, and his (appellant's) above objections against the competency and validity of the said appeal and or founded upon its alleged incompetence or invalidity are altogether groundless. It is clear from the above that, unless the respondents can bring to their aid the provisions of sec. 32 (6) of the above Act of 1950 for purposes of the present proceeding, the appellant's appeal before the Court of Small Causes Calcutta, must be held to be incompetent. It was, however, contended on behalf of the respondents that, under the relevant law (vide sec. 40 of the West Bengal Premises Tenancy Act, 1956), the Act of 1950 will be saved wholly for purposes of the present proceeding and, in any event, to the extent necessary, for governing the right of appeal and the appeal in the instant case by the relative provision thereof, namely, sec. 32 (6) (ii). 7. This is disputed by the appellant, whose contention is that the said Act of 1950, which was a temporary Act, having been repealed and replaced by the new or permanent Act of 1956, whatever be the position with regard to the right of appeal thereunder and, even if the said right of appeal had survived, the forum under the old or repealed Act cannot be said to have been retained for purposes of the present proceeding with the result that, the old forum being gone, a new forum has to be found for the instant appeal from the trial Court's decree and this new forum, according to the appellant, in the absence of any provisions to the contrary, must be this Court. For this, reliance was placed, inter alia, on Clause 16 of the Letters Patent and also on certain general principles and, particularly, on the decision of this Court in the case of (1) Jamuna Bala Dasi v. Monmatha Nath Banerjee, 64 C.W.N. 678. For this, reliance was placed, inter alia, on Clause 16 of the Letters Patent and also on certain general principles and, particularly, on the decision of this Court in the case of (1) Jamuna Bala Dasi v. Monmatha Nath Banerjee, 64 C.W.N. 678. It is necessary, therefore, to examine the precise legal position in the light of the appellant's above contention and the aforesaid sec. 40 of the West Bengal Premises Tenancy Act, 1956, and the general principles, relevant and appropriate in such matters. 8. The dispute is one entirely of law and it has to be resolved upon the relevant statute. The point depends upon the view of law, arising, inter alia, on three admitted facts, namely: - (i) that the instant suit for ejectment was filed on July 13, 1955, when the above Act of 1950 was in force; (ii) that the said suit was pending on March 31, 1956; and (iii) that during its pendency, that is, on the said 31st March 1956, the above Act of 1950 was repealed and the new Act of 1956 (the West Bengal Premises Tenancy Act, 1956), which repealed and replaced it, came into force on and from the said date. Admittedly, as seen above, the instant suit was filed on July 13, 1955, when the Act of 1950 [the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950] was in force. That statute provided, inter alia, for an appeal from the decree in the instant suit before the Special Bench of the Court of Small Causes, Calcutta, as mentioned in sec. 32 (6) (ii. If, therefore, the said Act had continued in force, there would have been no question that, from the trial Court's decree in the instant case, an appeal would have lain to the above Special Bench. The above Act of 1950, however, was, as said above, repealed and replaced by the new Act of 1956 during the pendency of the instant suit in the trial Court, that is, on and from March 31, 1956. Even the said repeal, however, would not have affected or altered the above position if the said Act of 1950 had been a permanent statute. This, indeed, is well-established on statute principle and authorities and beyond the pale of any controversy. 9. It is well-known that a right of appeal is a substantive right. Even the said repeal, however, would not have affected or altered the above position if the said Act of 1950 had been a permanent statute. This, indeed, is well-established on statute principle and authorities and beyond the pale of any controversy. 9. It is well-known that a right of appeal is a substantive right. It cannot be affected by a mere change of law during the pendency of the proceeding in question in the absence of an indication to the contrary. It is also clear, on the authority of the well-known decision of the Judicial Committee in (2) The Colonial Sugar Refining company Limited v. Irving, (1905) A. C. 369, that, ordinarily, the right of appeal, as a substantive right, as aforesaid,-that is, as distinguished from or in contra-distinction to a "mere matter of procedure" (vide p. 372)-includes, within it and as part of it, the forum of appeal and, in the absence of anything to the contrary, it attracts, as part of it, the said forum in its survival on the repeal of the statute in question. Indeed, as pointed out by the Judicial Committee in the above-cited case, in the matter of appeal, the litigant's right is, in the absence of anything to the contrary, governed by the law, prevailing at the date of institution of the suit or, in other words, a suit, once instituted, carries with it the right of appeal and the forum therefor, as prevailing at the date of its- the suit's-institution, unless some relevant law speaks to the contrary. The same view was expressed by the Supreme Court in (3) Garikapati Verraya v. N. Subbiah Choudhury and others, A. I. R. 1957 S. C. 540, which reaffirmed the principle of the above decision of the Judicial Committee after an exhaustive review of all the earlier authorities on the point. 10. From the statute also (vide sec. 6 of. the Indian General Clauses Act and sec. 8 of the Bengal General Clauses Act), the same conclusion follows and it may well be said that the above position-which, of course, arises on the repeal of a 'permanent' statute,-is beyond doubt or dispute. The Act of 1950, however, with which we are here concerned, was a temporary statute. On its own terms, it was due to expire on March 31, 1956. The Act of 1950, however, with which we are here concerned, was a temporary statute. On its own terms, it was due to expire on March 31, 1956. Its span of life was thus limited and, beyond the aforesaid date, its period or its effect could not be extended and it could not be made to survive beyond the said date merely on the aforesaid principles or authorities or the afore said sections of the General Clauses Acts and they, by themselves, would have been incompetent and insufficient to maintain and continue the right of appeal and the forum therefor under the above 1950 Act in the instant case vide in this connection (4) Tarak Chandra Banerjee and others v. Ratan Lal Ghosal and others, 61 C. W. N. 263 (S. B.)]. 11. Realising the above, the Legislature has made appropriate provision in the new statute. It has left no doubt as to its intention of affirming, maintaining and continuing the repealed Act for, inter alia, proceedings, pending on March 31, 1956, as also those, to be instituted thereafter, in respect of rights and liabilities etc., accrued or incurred, before that date (March 31, 1956), under the said repealed statute. This it has done by the new sec. 40 of the 1956 Act, which, after amendments, stands as follows: 40. (1) The West Bengal Premises bent Control (Temporary Provisions) Act, 1950 (in this section referred to as the said Act), is hereby repealed. (2) Notwithstanding the repeal of the said Act: (a) any proceeding pending on the 31st day of March, 1956, may be continued, or, (b) any proceeding or remedy in respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment under the said Act and relating to the period before such repeal may be instituted [or enforced]. as if the said Act had been in force [and had not been repealed or had not expired]: 12. Provided that for any of the purposes aforesaid, a Controller, an Additional Controller or a Deputy Controller, appointed under this Act, shall be deemed to be Controller, an Additional Controller or a Deputy Controller, appointed under the said Act. Explanation-In this section "proceeding" includes any suit, appeal, review or revision, application for execution, or any other proceeding whatsoever under the said Act. Explanation-In this section "proceeding" includes any suit, appeal, review or revision, application for execution, or any other proceeding whatsoever under the said Act. (2a) For the removal of doubts it is hereby declared that not with standing any decision of any Court to the contrary, any proceeding pending on the 31st day of March, 1956 which was continued after that date and any decree passed or order made after that date in accordance with the provisions of the said Act in any such proceeding, shall be deemed to have been validly continued, passed or made, as if the said Act had been in force, and had not been repealed or had not expired, and no such proceeding, decree or order shall be called in question in any manner merely on the ground that the said Act was not in force when such proceeding was continued, decree was passed or order was made. (3) In computing the period of limitation for the institution of any proceeding, the period beginning with the 31st day of March, 1956, and ending with the 30th day after the commencement of the West Bengal Premises Tenancy (Amendment) Act, 1956, shall be excluded. Indeed, the history of the above section is interesting and highly instructive on the point, now before us, and it throws considerable light on the same. The section (Sec. 40) was originally enacted as a mere repealing provision, namely, as follows: 40. Repeal-The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (West Bengal act XVII of 1950), is hereby repealed. 13. Quickly followed the amendment of the same year (vide W. B. Act XVIII of 1956), the amending provision running as follows: "5. Substitution of new section for section 40:-For Section 40 of the said Act, the following section shall be substituted and be deemed always to have been substituted, namely: -"40. Repeal and savings,- (1) The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (West Ben. Act XVII of 1950) in this section referred to as the said Act, is hereby repealed. Repeal and savings,- (1) The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (West Ben. Act XVII of 1950) in this section referred to as the said Act, is hereby repealed. (2) Notwithstanding the repeal of the said Act: (a) any proceeding pending on the 31st day of March, 1956, may be continued, or, (b) any proceeding or remedy in respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment under the said Act and relating to the period before such repeal may be instituted, as if the said Act had been in force: provided that for any of the purposes aforesaid, a Controller, an Additional Controller or a Deputy Controller appointed under this Act shall be deemed to be a Controller, an Additional Controller or a Deputy Controller appointed under the said Act. Explanation-In this section 'proceeding' includes any suit, appeal, review or revision, application for execution, or any other proceeding whatsoever under the said Act. (3) In computing the period of limitation for the institution of any proceeding under the said Act, the period beginning with the 31st day of March, 1956, and ending with the 30th day after the commencement of the West Bengal Premises Tenancy (Amendment) Act, 1956, shall be excluded. " 14. Obviously, this amendment was deemed necessary in view inter alia, of the reference to the Special Bench, made, in the meantime, in the case, later reported in (4) 61 C. W. N. 263 (S. B.) (Tarak Chandra Banerjee and others v. Ratan Lal Ghosal and others), supra. The final amendment followed in the year 1959-60, some three years after the decision (judgment) of the above Special Bench reference but, possibly, to some extent, as a result of the same, and it was made by sec. 4 of the Amending act (West Bengal Act XXVII of 1959), the relevant amending provision being worded as follows: 4. The final amendment followed in the year 1959-60, some three years after the decision (judgment) of the above Special Bench reference but, possibly, to some extent, as a result of the same, and it was made by sec. 4 of the Amending act (West Bengal Act XXVII of 1959), the relevant amending provision being worded as follows: 4. In section 40 of the said Act,- (1) in sub-section (2),- (a) in clause (b), after the words "may be instituted" the words "or enforced" shall be inserted and shall be deemed always to have been inserted ; (b) after the words "as if the said Act had been in force" the words "and had not been repealed or had not expired" shall be added and shall be deemed always to have been added; (2) after sub-section (2) the following sub-section shall be inserted, namely: - " (2a) For the removal of doubts it is hereby declared that notwithstanding any decision of any court to the contrary, any proceeding pending on the 31st day of March, 1956 which was continued after that date and any decree passed or order made after that date in accordance with the provisions of the said Act in any such proceeding, shall be deemed to have been validly continued, passed or made as if the said Act had been in force, and had not been repealed or had not expired, and no such proceeding, decree or order shall be called in question in any manner merely on the ground that the said Act was not in force when such proceeding was continued, decree was passed or order was made. " (3) in sub-section (3) the words "under the said Act" shall be omitted. 15. The above course of this legislation is proof positive of a keen desire on the part of the legislature to continue- and continue without break or interruption,-the repealed Act in respect of proceedings, pending on the date of its repeal, that is, on 31st March 1956, as also future proceedings in respect of rights, liabilities etc., accrued or incurred before that date, under the said Act, and this desire seems to have been duly and fully effectuated. The amendments are comprehensive in their scope and effect and they have been made sufficiently retrospective in clear terms, (vide, in particular, the words "be deemed always to have been" which I have underlined above) making them operative from the date of the original Act, that is, the original date of the new Act of 1956. But for the said amendments,-or, at least, without some of them,-the position, probably, would have been somewhat difficult and essentially different, inasmuch as, as already said, the Act of 1950 was a temporary statute, due to expire, on its own terms, on 31st March 1956, so that neither the general principles, referred to above, nor the General Clauses Act, be it the Central or the local one, would have kept it alive for any purpose whatsoever beyond the aforesaid 31st March, 1956 [vide Tarak Chandra Banerjee and others v. Ratan Lal Ghosal and others, (4) 61 C. W. N. 263 (S. B.)]. Accordingly, even though the said temporary statute was repealed and replaced by the permanent statute on the said 31st March 1956 and there was thus a change of law during the pendency of the instant suit, which was filed on July 13, 1955, and was decreed by the trial Court on April 24, 1958, if matters had merely stood there and the new permanent statute (the Act of 1956) had merely repealed and replaced the old Act (the Act of 1950) without providing, as it has done in the amendments quoted, the position would have been very much complicated and, possibly, vitally and fundamentally different but, as if perceiving the same and realizing possible contingencies, the Legislature amended this particular section (sec. 40) as aforesaid, and gave it its present shape, which, as we have said above, is clearly sufficient to continue the old Act in full and in all its vigour, or, to the necessary extent, for the present proceeding, to affirm and uphold the competency of the Appellant's appeal before the Court of Small Causes, Calcutta, in the instant case. 16. If we turn to clause (a) of sub-section (2) of the aforesaid section (sec. 16. If we turn to clause (a) of sub-section (2) of the aforesaid section (sec. 40), it will be noticed at once that, under the said clause, notwithstanding the repeal of the old Act, that is, the 1950 Act, any proceeding pending on the 31st day of March, 1956,-and that will include the present suit, which had been instituted in July, 1955, and was, admittedly, pending on the above day, namely, 31st March, 1956,-may be continued,-and, if suit includes appeal from the decree of the suit, the appeal being treated as a continuation of the suit, clause (a) would cover the instant case and it will permit the continuance of the suit in the form of appeal at the appellate stage, that is, including its (the appeal's) institution, not with-standing the repeal of the 1950 Act, as if the said Act had been in force. Mr. Das Gupta no doubt contends, that, in view of the Explanation to this sub-section, which includes "appeals" within "proceedings" for purposes thereof, the continuation under this clause (a), so far as appeals are concerned, would apply only to appeals, pending on 31st March, 1956, and would not apply to appeals, instituted or to be instituted thereafter, however-much they may arise from suits, pending on that date ; in other words, Mr. Das Gupta contends that suit for purposes of the above sub-section would not include an appeal and, in support thereof, he refers to and emphasises the separate inclusion of "appeals" within the term "proceedings" in the Explanation. We do not think that this contention is sound. Indeed, if Mr. Das Gupta's contention be accepted the result would be that, although, after 31st March, 1956, a suit may be instituted Under clause (b), to which the old Act would apply, no appeal would lie from it under the said Act and the appeal from it would not be governed by that Act, That is, obviously, an untenable position and the statute contains no warrant for it. 17. 17. Even if clause (a) be insufficient for the above purpose, there can be no doubt that clause (b) would produce the desired effect, as, under that clause, notwithstanding the repeal of the 1959 Act, "any proceeding or remedy, in respect of any right under the said Act and relating to the period before such repeal, may be instituted or enforced as if the said Act had been in force and had not been repealed or had not expired". The right under this clause obviously implies a substantive right and the right of appeal itself, in the light of the authority, already cited, being a substantive right, would well be included within the said term. The result, then, will be that, under this clause, the remedy in respect of the right of appeal, would be saved and would be subsisting and would survive the repeal and may be enforced and any proceeding-and "proceeding" under the Explanation, appended to the aforesaid sub-section (2), includes an "appeal" and thus would cover the case of an appeal-in respect of or in the exercise of the said right of appeal may be instituted or filed on the footing that the Act of 1950 was,-and had been in force at all material times. In other words, an appeal in respect or in the exercise of the right of appeal, saved as aforesaid, may be instituted or filed and may be continued till the end as and by way of enforcement of the remedy in respect of the said right as if the said Act was and had been in force at all material times. 18. In the premises, section 32 of the aforesaid Act would be saved and would survive and would be available for purposes of such an appeal and, clearly, then, under sub-section (6) (ii) of that section, the appeal, in the instant case, would be maintainable before the Court of Small Causes, Calcutta, that is, before its Special Bench, aforementioned, and would be validly heard in accordance with law by the learned Chief Judge and another learned Judge there, other than the learned trial Judge, in terms of and under the said section. That is what has happened in the instant case and, on the statute, as quoted above, the competency and validity of the said appeal would be well supported. That is what has happened in the instant case and, on the statute, as quoted above, the competency and validity of the said appeal would be well supported. In the above view, the position will clearly be that, from the decree of the learned trial Judge in the instant case, the appeal will be under section 32 (6) (ii) of the Act of 1950 and will be entertain-able and triable by the Court of small Causes, Calcutta, or, rather, the Special Bench of that Court, consisting of the learned Chief Judge and another learned Judge there, other than the learned trial Judge. That was how the appeal in the instant case was dealt with, and, accordingly, there can be no objection to its competency or validity or to its disposal by the said Special Bench. The basic argument, then, of the appellant would fail and his endeavour to have the said appellate decree of dismissal discharged cannot succeed. 19. The appellant, however, as we have said above, relies, particularly, upon the decision of this Court, reported in (1) Jamuna Bala Dasi v. Monmatha Nath Banerjee, 64 C. W. N. 678. Obviously, the said case is distinguishable. In the case cited, the suit was filed, not while the 1950 Act was in force but after the said Act had been repealed and the Act of 1956 (which repealed and replaced it) had come into operation. Accordingly, their Lordships pointed out that, prima facie, it was a case, to which the 1950 Act could not apply, and, as, in the 1956 Act, there was no provision, corresponding to the relevant part of sub-section (6) of section 32 of the said earlier Act of 1950, the forum of appeal was not indicated in the statute. Although, therefore there was a right of appeal [vide sec. 29 (6) of the 1956 Act, read with secs. 96 and 100 of the Code of Civil Procedure], there was no definite indication of any forum. In the circumstances, their Lordships held that the special forum under the 1950 Act could not be availed of by an appellant in such a case. 29 (6) of the 1956 Act, read with secs. 96 and 100 of the Code of Civil Procedure], there was no definite indication of any forum. In the circumstances, their Lordships held that the special forum under the 1950 Act could not be availed of by an appellant in such a case. Their Lordships also pointed out that, for obvious reasons, appearing on its face, the other statute, cited there namely, the City Civil Court and the West Bengal Premises Tenancy (Amendment) Act, 1957 (W. B. Act XXVII of 1957 was not relevant to attract the 1950 Act to the case before them. That, indeed, could not be questioned, as the appeal in that case before the Court of Small Causes, Calcutta, had been filed long after the relevant date under the above Amending Act (W.B. Act XXVII of 1957), January 13, 1958, namely, the said amending statute having saved the 1950 Act and applied it only to appeals, pending on the date of its coming into force, that is, January 13, 1958, aforesaid. Eventually, their Lordships ruled that, in the said situation, this Court will be the proper forum of appeal, when the right of appeal was available under the statute. It may perhaps be contended that to hold that, merely because there was no special forum of appeal, indicated in the statute in question, the appeal would at once lie to this Court, may not be quite consistent or in conformity with the provisions of sec, 21 of the Bengal, Agra and Assam Civil Courts Act, under which appeals, only in suits of certain values, so far as Courts of Subordinate Judges are concerned,-and the trial Judge in the case before their Lordships, as here, was such a Subordinate Judge in view of Schedule B under sec. 16 of the relevant 1950 statute-are entertainable by this Court. As I had occasion to point out, however,-Vide (5) Dr. Hari Gopal Barat v. Dwarka Nath Dey (S. A. No. 1374 of 1959) and (6) Sm. 16 of the relevant 1950 statute-are entertainable by this Court. As I had occasion to point out, however,-Vide (5) Dr. Hari Gopal Barat v. Dwarka Nath Dey (S. A. No. 1374 of 1959) and (6) Sm. Ashalata Das v. Smt. Rekha Deb (F. A. No. 203 of 1960), decided by N. K. Sen, J. and myself, on June 29, 1960,-there may be one way of supporting the decision of their Lordships by invoking an implied rule, which may be held to be implicit that, when a suit, triable by a District Judge or by some other Judge as district Judge, is transferred to any other Judge for disposal, the principles, underlying sec. 24 of the above Act, will apply and the rules, applicable to appeals from District Judges, may apply to such cases. It is unnecessary, however, to prolong the discussion, as, as pointed out, by me in the above case, after the decision of their Lordships, litigants and Courts, have practically, unanimously, accepted that decision and that has ruled relative litigations ever since then. 20. In the present case, however, the position is different and it is fundamentally different. Indeed, as pointed out by their Lordships in (1) Jamuna Bala's case (64 C. W. N. 678) that is, in the very case cited by the appellant, that, if, by some process, sub-section (6) of sec. 32 of the 1950 Act could have been attracted, the position would well have been otherwise. As their Lordships were unable to find any provision, corresponding to sub-section (6) of sec. 32 of the 1950 Act, in the statute of 1956,-which alone governed the proceeding before them, neither sec. 40 of the said statute nor the amending Act [the City Civil Court and the West Bengal Premises Tenancy (Amendment)Act, 1957] applying to the case to attract the 1950 Act, as the suit there was instituted after the repeal of the above 1950 Act and no appeal was pending on January 13, 1958, the relevant date under the above amending Act, as required by the said statute for the purpose,-they had no option but to reject the contention that the special forum under sub-section (6) of sec. 32 aforesaid was available in the case before them. As we have seen above, before us, the position is entirely, different and, along with the statute of 1950, the whole of sec. 32 aforesaid was available in the case before them. As we have seen above, before us, the position is entirely, different and, along with the statute of 1950, the whole of sec. 32, or, at least, to the extent necessary, including sub-section (6), would be preserved and made available for the purpose of the instant proceeding. In that view, it must be held that the Special Bench of the Court of Small Causes, Calcutta, was justified in entertaining and disposing of the appellant's appeal before them and our learned brother Bijayesh Mukherji, j. was also fully justified in rejecting the appellant's submission that the appeal before the said Special Bench was incompetent. 21. ONE word, before we conclude, on Clause 16 of the Letters Patent, on which, inter alia, reliance was placed by the appellant, as stated above, and to which our attention was specifically drawn during arguments. It is only necessary to point out that the appellant jurisdiction of this court under the said clause is subject to the existing laws in that behalf, subject to the statutes and one of such laws, relevant thereunder, would be the Bengal, Agra and Assam Civil Courts Act and, necessarily, amongst others, sec. 21 thereof, by reason whereof, if we had been of the opinion that the appeal to the Special Bench was not maintainable in the instant case, it might have been difficult, except as indicated above, to support the filing of the appeal in this Count, even under the aforesaid Clause 16 of the Letters Patent, as the direct forum of appeal from the decision of the learned trial Judge of the Court of Small Causes. In the premises, we hold that this appeal would fail and it will be dismissed. In the circumstances of this case, the respondent will be entitled to his costs of this Letters Patent appeal, hearing fee being assessed at three gold mohurs.