JUDGMENT 1. BY consent of parties let this case be treated as on the day's list for judgment. The Rule was obtained against a judgment and order passed in Misc. Appeal No. 138 of 1973 by the District judge, Howrah arising out of Misc. case no. 68 of in the first court of Munsif, Howrah. 2. THE petitioner is the owner of a and measuring about 4 cottahs 9 in premises no. 22,stalkart Lane, salika, howrah and obtained an order of ejectment against some tenants whose successors have now been imlpeaded as respondents under the Thika Tenancy Act,1949. It was initially registered in the court of Second Munsif Howrah as misc. Case No. 253 of 1954 but subsequently renumbered Misc. Case No. 63 of 1959 and transferred to the Munsif, 1st court, Howrah, both as Controllers under the Thika Tenancy Act, 1949. The grounds for ejectment were default in. payment of rent as well as own use and. occupation. The application was contested. The application was dismissed by the: learned Munsif, 1st Court, Howrah on 21st of March, 1960 against which an appeal was filed being appeal no. 116 of 1960 and the same was allowed by the subordinate Judge, 1st Court, Howrah. on 30th of March, 1961. Eviction was ordered on both grounds urged by the petitioner. A civil rule was obtained by one Kartic Chandra Dey and on 23. 'a 63 P. Chatterjee, J. disposed of the rule by directing ejectment on the ground of personal requirement. The controller was directed to start proceedings for compensation and to pass an order for ejectment after such compensation was assessed and paid. Proceedings which were started pursuant to the aforesaid direction for assessing the valuation, however, stood stayed under various laws namely the Calcutta Thika Tenancy Stay of proceedings Temporary Provisions, Ordinance (W. B. Ordinance No. V of 1967) ; The Calcutta Thika Tenancy amendment Act, 1968 (West Bengal presidents Act no. 2); The Calcutta thika Tenancy Stay of Proceedings (Temporary Provision Act) (W. B. Presidents Act no. 3 of 68);the Calcutta Thika Tenancy Act (W. B. Act III of 1969) which came into force one after another. Thereafter West Bengal Act XXVII of 1969 and the Calcutta Thika Tenancy Act (2nd Amendment Act) (W. B. XXIX of 1969) came into force and the stay of proceedings under the previous laws became vacated. In February. 3 of 68);the Calcutta Thika Tenancy Act (W. B. Act III of 1969) which came into force one after another. Thereafter West Bengal Act XXVII of 1969 and the Calcutta Thika Tenancy Act (2nd Amendment Act) (W. B. XXIX of 1969) came into force and the stay of proceedings under the previous laws became vacated. In February. 1970 an application was made by the thika tenant to the learned Controller for setting aside the order of eviction under Section 7a of the Calcutta thika Tenancy Act, 1949 which was introduced retrospectively by section 8 of the Calcutta Thika Tenancy, Second amendment Act that came into force on October 30, 1969. The learned Controller by an order, dated 16th of June, 1973 allowed the application and set aside the order of eviction. An appeal being filed before the learned District Judge, howrah (being Misc. Appeal No. 183 of 1973) the same was also dismissed on contest by an order, dated the 14th of march, 1975. It may be noted that by virtue of the amendment of section 3 of the Thika Tenancy Act no landlord shall be deemed to require the land comprised in the Thika Tenancy holding for his own occupation if he has a house of his own in the city in which such land is situated and the accommodation available in the house is, in the opinion of the Controller, reasonably sufficient for him and for his family. The said provision was invoked by the tenant in an application under section 7a (1) of the amended Thika Tenancy Act. The learned appellate court concurred with the Thika Controller and held that as the petitioner appellant was the owner of at least three pucca structure of houses which were used as godown and also owned Kaccha structure at 18/1, Sri ram Dhang Road which was in occupation of some tenant the same could sufficiently offer reasonable accommodation to the landlord if he desired to get khas possession. Both the court found that the holding at Sri Ram dhang Road was sufficient to meet the reasonable requirement of landlord and he was not entitled to eject the thika tenant on the ground of personal requirement. Mr. P. K. Sen, the learned Advocate, appearing in support of the Rule firstly argued on a preliminary point taken by the other side, viz. Mr. P. K. Sen, the learned Advocate, appearing in support of the Rule firstly argued on a preliminary point taken by the other side, viz. that the application was not maintainable under article 227 of the Constitution of India in view of 42nd amendment. Mr. Sen in this connection relied on a decision reported in 81 C. W. N. 544 (State of West bengal v. Jyotsna Bhowmic and Ors). I find substance in Mr. Sen's argument in this regard that the right to move under article 227 is a substantive right. As has been held in the case referred to above, amendment of Article 227 made by the 42nd amendment of the Constitution is not retrospective in operation. Therefore, a proceeding under Article 227 of the Constitution which was pending in the High Court on February 1, 1977, the date on which the amendment came into force, will be governed by the original article and not by the article as amended. 3. MR. Sen next argued that inasmuch as the order for possession in favour of the landlord was passed by this High Court in C. R. 1842 of 1961 and not by the Thika Controller Section 7a of the Calcutta Thika Tenancy Act was not attracted at all. The said section will be applicable only to orders made by the other authority or courts. It may be rioted that section 7a begins as follows : "where an order for ejectment of a thika tenant from his holding has been made by the Controller under section 5 before the date of commencement of the Calcutta Thika tenancy (Second Amendment) Act, 1969, but the possession of the land comprised in the holding has not been recovered by the landlord from the thika tenant, the thika tenant may within sixty days from such date apply to the Controller for setting aside the order. " Mr. Sen argued that 'an order made by the Controller' could not include the order made by the High Court. By section 13 of the Amending Act of 1969 the amendment was made retrospective and applicable to pending proceedings before the Controller and the appellate authority only (see sections 5 and 27 of the Original Act) and not to proceedings pending before the High court or the Supreme Court. Mr. By section 13 of the Amending Act of 1969 the amendment was made retrospective and applicable to pending proceedings before the Controller and the appellate authority only (see sections 5 and 27 of the Original Act) and not to proceedings pending before the High court or the Supreme Court. Mr. Sen particularly relied upon the principle of merger which means that since an order made by the Controller and the appellate authority merged in the order of the High Court, dated the 20th June, 1963 passed in Civil Rule No. 842 of 61 there was no independent existence of any order by the Controller to which section 7a could be applied. Moreover, the Controller being a subordinate authority could hardly set aside the order made by the High Court without any specific provision being made to that effect by the legislature. There is no such provision in the Thika Tenancy act unlike section 17e of the West bengal Premises Tenancy Act, 1956. On the principle of merger Mr. Sen relied on two well-known Supreme court decisions reported in A. I. R, 1970 s. C. 1 (Sankar v. Krishna) ; A. I. R. 1974 S. C. 1380 (Gojer Brothers v. Ratan lal) and a decision of this Court in h. N. Roy v. A. K. Halder reported in 71 C. W. N. 262. In the former case, the High Court, of Bombay dismissed the revision petition after hearing both parties and the order of the appellate court was held to be merged with the order made in revision. Thereafter the appellate order could not be challenged or attacked by another stage of proceedings in the High Court under Article 226 or 227 of the Constitution. It was held that the principle of merger of orders of inferior court could not be affected or made inapplicable by making any distinction between a petition for revision and an appeal. The revisional jurisdiction incidentally was held to be basically and fundamentally a part of the general appellate jurisdiction. In the other Supreme Court cases of Gozer brothers it was clearly stated that where the decree of the trial Court is disposed of in appeal after contested hearing the decree to be executed is the decree of the appellate court and not of the trial court. The decree of the trial court is merged in that of the appellate court. The decree of the trial court is merged in that of the appellate court. In the last case (H. N. Roy vs. Halder)B. Mukherji, J. held that when an ex parts order of the thika Controller was confirmed in appeal by an appellate tribunal the Controller ceased to have jurisdiction to hear the tenants petition under order 9 Rule 13. It was incidentally observed that an appellate authority under section 27 of the Calcutta thika Tenancy Act is not a court but a persona designate. Mr. Sen further submitted that when the impugned order has been passed without authority and power the same was not only wrong but a nullity. In this connection he referred to the case of Official Trustee vs. Sachindra, reported in A. I. R. 1989 S. C. 823 in which a court's order allowing the settler to vary certain terms of trust deed was held to be outside the jurisdiction of the court and therefore void. 4. MR. Mitra, learned Advocate appearing on behalf of the opposite party submitted mainly that the principle of merger was quite well-known but the same did not apply on the facts of this case. The question of merger, according to him, would come in only if the final order was passed but that was not made in the present case. When the high Court made the order it made it clear that the Controller will start proceedings about the compensation. As compensation had not been determined and paid there could not be any question of merger. Following the decision in nirmala Auddy vs. Monoroma Chakraborty, reported in A. I. R. 1972 Cal. 256 it was held in the case of Pannalal Shaw vs. Manibhusan, reported in 81 C. W. N. 335 by another Division Bench of this court that the order of controller rejecting the application by a thika tenant act under Section 7 (A) of the Amendment Act for setting aside the order of eviction on the ground that the order has became final before the date of the commencement of the Amendment Act cannot be sustained nor could it be said that the application was premature because the question of compensation remained undecided. It was held that under the amended provision namely section 7 (A) of the Calcutta Thika tenancy Act, 1969 the landlord has to satisfy the court that he has no other house of his own in the city. Considering the fact that the amount of compensation was not yet determined it was held that the proceeding was still pending and that being so, the amendment will apply to the said case. The learned thika Controller was directed to hear the application under Section 7 afresh. It was also made clear that if the application under section 7a was allowed then there would be absolutely no necessity of determining the amount of compensation because in that case the order of eviction will be set aside. Mr. Mitra also relied on another case anantalal Dutt vs. Ram Duari Kurnie, reported in 81 C. W. N. 346. I am inclined to accept Mr. Mitra's submission in the respect. On the facts of this case it is clear that the order passed by the High court made it clear that the controller will start proceedings about the compensation. As compensation had not been determined and paid there could not be any question of merger. The two division Bench decisions of this Court have already been noted earlier. Mr. sen's contention, therefore, fails in this regard. 5. IT was next argued by Mr. Sen that under Section 7-A of the Thika tenancy Act the application for setting aside the order has to be made within sixty days from the date of the amendment of the Act. In this case the application was made much beyond that period and the delay was purported to be condoned under Section 5 of the Limitation Act, 1963. Mr. Sen further argued that the Controller and the appellate authority though they have some of the trappings of a civil court are not really civil courts but merely persona designata and Civil Procedure Code does not by its own force apply to proceedings before them. Only some of the provisions of the Code have been applied for such proceedings by the rules framed under the Act. He relied on a decision reported in 71 C. W. N. 262 (H. N. Roy v A. K. Halder). Only some of the provisions of the Code have been applied for such proceedings by the rules framed under the Act. He relied on a decision reported in 71 C. W. N. 262 (H. N. Roy v A. K. Halder). It was held in that case that an appellate authority in deciding an appeal under section 27 of the Calcutta thika Tenancy Act, 1949 is not a court but a persona designata. Its powers are the powers conferred on it by the Act itself and the rules made thereunder. Unlike the Premises Tenancy Act, 1956 the Thika Tenancy Act has not made the Limitation Act, 1963 applicable to it. Mr. Sen further argued that the supreme Court has laid clown that the limitation Act, 1963 applies only to proceedings in civil courts in the full sense of the term and that the Act does not apply to proceedings before other judicial tribunals whatsoever. In this connection he relied on three decisions of the Supreme Court reported in A. I. R. 1969 S. C. 1335; A. I. R. 1970 S. C. 209 and A. I. R. 1977 S. C. 282. As the condonation of delay was made without any power or authority the order allowing such condonation, according to Mr. Sen, was invalid and a nullity. No formal proceedings was necessary to be taken for setting aside the said order. He relied on A. I. R. 1969 S. C. 823 (Supra)for this purpose. Arguments were advanced at length as to what is a court. The word 'court' is not defined in the civil Procedure Code. The definition of court as given in section 3 of the Evidence Act is not exhaustive. It merely says that the court includes Judges and magistrates and all persons except arbitrators, legally authorised to take evidence. That definition has been construed to be confined only for the purpose of the Evidence Act. As the Supreme court said in the case of Brojonandan sinha v. Jyoti Narayan. reported in a. I. R. 1956 S. C. 66 pronouncement of a definitive judgment is considered essential sine qua non of a court and unless aid until a binding and authoritative judgment can be pronounced by a person or body of persons it cannot be predicated that he or they constituted a court. reported in a. I. R. 1956 S. C. 66 pronouncement of a definitive judgment is considered essential sine qua non of a court and unless aid until a binding and authoritative judgment can be pronounced by a person or body of persons it cannot be predicated that he or they constituted a court. The Privy Council decision, (Shell Australian v. Federal Commissioner of Taxation), reported in 1931 a. C. 275 was quoted with approval by the Supreme Court. It defined 'judicial power' as the sovereign authority which must of necessity have to decide the controversies between its subjects or between itself and its subjects whether the rights relate to life, liberty or property. Exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision is called upon to take action. The said definition, it appears, was given by Grifith, c. J. in Huddart, Parket and Company v. Moorehead, 1909 (8) C. L. R. 330 at page 357. The Privy Council further enumerated certain negative proposition when it said that a tribunal is not necessarily a court because it given a final decision nor because it hears witnesses on oath nor as because one or more contending parties appear before it between whom it has to decide nor because it gives decisions which affect rights of the parties nor because there is an appeal to a court nor because it is a body to which a matter is referred by another body. Again in Rex v. Electricity Commissioner, 1924 (1) K. B. 171 it was observed that an administrative tribunal may act judicially but still remain an administrative tribunal as distinguished from a court strictly so called. Mere externals do not make a direction to an administrative officer by an ad hoc tribunal, an. exercise by a court of judicial power. The said principle was reiterated by the supreme Court in the case of Bharat bank Limited v. Employees of Bharat bank Limited, replied in A. I. R. 1950 s. C. 188; Maqbul Hossain v. State of bombay, reported in A. 1. R. 1953 S. C. 325. exercise by a court of judicial power. The said principle was reiterated by the supreme Court in the case of Bharat bank Limited v. Employees of Bharat bank Limited, replied in A. I. R. 1950 s. C. 188; Maqbul Hossain v. State of bombay, reported in A. 1. R. 1953 S. C. 325. In the last case the Supreme Court approved of some tests laid down in cooper v. Wilson, 1937 (2) K. B. 309 ; (i) presentation of the case by the parties to disputes ; (ii) if the dispute is a question of fact ascertainment of the fact by means of evidence adduced by the parties and often with the assistance of the arguments ; (iii) if the dispute is a question of law the submissions of legal arguments by the parties ; (iv) a decision which disposes of the whole matter by finding upon the facts in dispute, an application of the law of the land to the facts. In the case of S. A. venkatragham v. Union of India, reported in A. I. R. 1954 S. C. 375 a constitution Bench held that both finality and authoritativeness were the essential tests of judicial pronouncements. So it was laid down in the case of Brojonandan Sinha that apart from the external trappings of a judicial tribunal a court must have power to give a decision or a definitive judgment which has finality and authoritativeness. Hallsbury's Laws of England Volume 8, page 527 (Hailsham Edition) states "many bodies are not courts, although they have to decide questions and in so doing have to act judicially, in the sense that the proceedings must be conducted with fairness and impartiality, such as, the Benches of the Inns of Court considering the conduct of one of the members, a general medical council when considering the questions affecting the position of a medical man. " In the case of Krishnan v. Radha Laxmi, reported in A. I. R. 1972 Kerala 145 also this question was gone into at some length. It was found that the term 'court' is not defined in the Civil Procedure Code. For the purposes of Code of Civil Procedure a court has been held to be "a place where justice is judicially administered". It was found that the term 'court' is not defined in the Civil Procedure Code. For the purposes of Code of Civil Procedure a court has been held to be "a place where justice is judicially administered". The definition of a 'court' in Evidence Act and 'court of justice' in the Penal Code do not afford much assistance in considering the word 'court' for purposes of Code of Civil Procedure as the said definitions were framed for the purpose of the said enactment only. In the case of Syed hanifa v. Khalifulla, reported in A. I. R. 1970 Madras 39 the learned Judge summed up the discussion as follows : "when a question, therefore, arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judicial tribunal. What has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a court. Applying these principles there is no doubt that the Rent Controller would be a 'court'. He decides disputes in a judicial manner and declares rights of parties in a definitive judgment. Parties are entitled as a matter of right to be heard in respect of their claim and adduce evidence in proof of it. He has to decide the matter on a consideration of the evidence adduced and in accordance with law. In all matters before the Rent Controller there is a 'lis' in which persons with opposing claims are entitled to have their rights adjudicated in a judicial manner. The enquiry is net entrusted to an ad hoc tribunal. Applying all these tests it would appear that the Rent Controller is a 'court'. But it may still be argued that the Rent Controller is not a civil, criminal or revenue court. " 6. IN the case of Thika Tenancy act also there is no doubt that the thika Controller decides dispute in a judicial manner and declares rights of parties by a definitive judgment. Parties are entitled as a matter of right to be heard in respect of their claims and are entitled to adduce evidence. The enquiry also is not entitled to an ad hoc tribunal. Therefore, both the Thika Controller and the District Judge exercising appellate authority under the Thika tenancy Act seem to be courts. Parties are entitled as a matter of right to be heard in respect of their claims and are entitled to adduce evidence. The enquiry also is not entitled to an ad hoc tribunal. Therefore, both the Thika Controller and the District Judge exercising appellate authority under the Thika tenancy Act seem to be courts. In the case of Prasanna v. G. Rout, reported in 81 C. W. N. 589 a division Bench of this Court presided over by S. K. Datta, J. held that a district Judge exercising jurisdiction under section 9 (6) of the Land Reforms act, 1955 discharge judicial function" under Bengal, Agra and Assam Civil courts Act, 1887, the position of the district Judge in the discharge of judicial function is equated to that of the district Judge. In the case of N. K. Banerjee v. Panihati Co-operative Bank the Limitation Act was held to be inapplicable under the Bengal Co-operative societies Act, 1940. In the case of Kalidas Nath v. Abdullah Shaikh another division Bench of this Court presided over by Prodyut Kumar Banerjee, J. held that a District Judge as mentioned in section 9 (6) of the West Bengal Land reforms Act is a District Judge under the Bengal, Agra and Assam Civil Code and the Civil Procedure Code interms as applicable in respect of hearing of an appeal. 7. SO far as the Limitation Act is concerned the position with regard to the Limitation Act, 1963 is a little different from that of the Limitation Act of 1908. The Supreme Court in the case of kerala A. C. Board v. T. P. Kunbatiumma (Supra) has summed up as follows: "the alteration of the division as well as the change in the collection of words in Article 137 of the limitation Act, 1963 compared with article 181 of the 1908. Limitation act shows that applications contemplated under Article 137 are not applications confined to the Code of civil Procedure. In the 1908 Limitation Act there was no division between applications in specified cases and other application as in the 1963 limitation Act. The words "any other application" under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part i of the third division. Any other application under Article 137 would be petition or any application under any Act. The words "any other application" under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part i of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a court for the reason that sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when court is closed and extension of prescribed period if applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period. Article 137 will apply to any petition or application filed under any Act to a Civil Court. It is not confined to applications contemplated by or under the Code of Civil procedure, A. I. R. 1969 S. C. 1335 and A. I. R. 1974 Ker. 202 overruled. " 8. IN view of the aforesaid Supreme Court decision and the provisions of the Limitation Act, 1963 it would appear that Mr. Sen's contention cannot be upheld. Condonation of time under section 5 of the Limitation Act cannot held be illegal as urged by him. Mr. Sen lastly argued that the amended section 3 (2) of the Thika tenancy Act lays down that the order for delivery of possession cannot be made if the landlord has a suitable accommodation in the city. In the instant case it is no doubt that the landlord owned some building in the city and that both the residential building and the godown belonging to the landlord are occupied by tenants. No accommodation was admittedly available to him. He has to lake legal proceedings to obtain accommodation in his own tenanted house. According to Mr. Sen the section clearly "contemplates' accommodation which is readily available. It cannot mean accommodation which may be available in future as a result of litigation which will involve uncertainties. He relied in this connection on the decisions reported in a. I. R. 1966 S. C. 1824, Padmanavo v. P. Sethi A. I. R. 1974 S. C. 1059 phiroz v. Chandrakant and 79 C. W. N. 838, Tarasundari v. Dukhharan. Mr. It cannot mean accommodation which may be available in future as a result of litigation which will involve uncertainties. He relied in this connection on the decisions reported in a. I. R. 1966 S. C. 1824, Padmanavo v. P. Sethi A. I. R. 1974 S. C. 1059 phiroz v. Chandrakant and 79 C. W. N. 838, Tarasundari v. Dukhharan. Mr. Sen strongly urged that both the Controller and the appellate authority were in error when they allowed the application under Section 7 (A) on the basis that the landlord could obtain possession by evicting his own tenants in other buildings. In the case of Padmanavo Sethi vs. P. Sethi, (Supra) the landlord was in occupation of another non-residential building as a tenant. The object of Mysore house Rents and Accommodation Control Act was construed to prevent unreasonable eviction of tenant. It could not be said that the legislature considered it unreasonable for a landlord to shift to his own premises while he is in occupation of tenanted premises over which he has not absolute right of possession but only right to remain in possession till one of the conditions under section 8 (2) is satisfied and over which he has no control. It was considered reasonable for a landlord to shift to his own premises when he was in occupation of a tenanted premises over which he has no absolute right of possessor. In the other case of P. B. Desai vs. C. M. Patel, reported in A. I. R. 1974 S. C. 1059 the Supreme Court approved of the test of 'requirement' to mean an clement of need and not merely desire on the part of the landlord. The Supreme Court also held that for the purpose of determining whether requirement of the landlord for the premises in question is reasonable and bona fide what is necessary to be considered is not whether the landlord is juridical in possession of other premises, but whether they were available to him for occupation so that be cannot be said to need the premises in question. If a person is in occupation of the other premises on leave and licence they are obviously not available to the landlord for occupation and cannot be taken account of for negativing the need of the landlord of the premises in question. 9. If a person is in occupation of the other premises on leave and licence they are obviously not available to the landlord for occupation and cannot be taken account of for negativing the need of the landlord of the premises in question. 9. IN this case both the courts below took into consideration that the landlord owned some building in the city. There is no doubt that no existing accommodation in any of the Houses owned by him was available to the landlord. The mere fact that he owned some building in the city to which he was not entitled to immediate possession would hardly be regarded as accommodation 'available' to the landlord and stand in the way of his seeking to evict the tenant. In this respect the reasons given by the Courts below for denying the relief to the landlord seem to have overstepped the requirement of the Act. As Mr. Sen succeeds in this regard the petition succeeds and the Rule is made absolute. There will be no order as to costs. Let the records be sent down to the lower court at an early date. The trial court is directed to take up the matter expeditiously inasmuch as about two decades were lapsed since the proceeding was started. Rule made absolute.