1. A. S. CHOWDHURY, J.--This revisional application is directed against an order made by Mr. A. S. Faizul Islam Chowdhury, Subordinate Judge, 3rd Court, Comilla on 22-2-66 in Misc. Cases Nos, 11 and 12 of 1966. Both the cases were heard together by the Court of Appeal below and this Court as they arise out of the same facts and circumstances and are being disposed of by this judgment.
2. The petitioner Kafiluddin Chowdhury filed an application under section 24(1) of the Non-Agricultural Tenancy Act for pre-emption of a plot of land in the Municipality of Chandpur. There was another application by him in regard to an adjacent plot of land under the same section. Both the applications were dismissed for default by the trial Court on 6-1-66 and the petitioner had to file two appeals both of which were dismissed on the ground of not being maintainable.
3. Mr. Abdus Salam, learned Advocate for the petitioner submits that the learned Judge erred in law in holding that there is no provision for appeal against an order dismissing the prayer for restoration of an application for disposal in accordance with law. He urges that section 141 of the Code of Civil Procedure would apply to such an order and as such an appeal would lie against an order of dismissal of al-petition for restoration of an application.
4. Mr. Kamaluddin Hussain, learned Advocate for the opposite-parties, submits that section 141 of the Code makes provisions relating. to procedural matter only and an appeal being a substantive right does not come within the purview of that section.
5. Clause 9 of rule 1 of Order XLIII of the Civil Procedure Code reads as follows :- "43(1) (9). An appeal shall lie from the following orders under the provisions of section 104, namely (a).............................................................
6. (b).............................................................
7. (c)an order under rule 9 of Order IX rejecting an applica-tion (in a case open to appeal) for an order to set aside the dismissal of a suit."
8. Clause (c) of rule 1 of Order XLIII, provides for an appeal for restoration of an application for setting aside an order 'of dismissal of a suit". In this case the application presented before the learned Munsiff was in regard to an order made in an application under the Non-Agricultural Tenancy Act for pre-emption of a plot of land. It is, therefore, urged that the application was not for restoration of an order or dismissal of a suit but of an application. It is, however, strenuously urged that by reason of the provision of section 141 of the Code an order made in an application would yet be appealable. It has been rightly urged by the learned Advocate for the opposite-party that an appeal may be preferred when it is provided. A reference to subsection (1) of section 104 of the Code of Civil Procedure makes the position clear. I read it now :- "104(1). An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders."
9. Mr. Salam, therefore, concedes that unless he can bring his appeal within clause (c) of rule 1 of Order XLIII he cannot claim that the appeal is maintainable. He however contends that appeal is a continuation of a suit. The appeal may be a continuation of a suit but there should be a suit in existence. In this case there was an application under the Non-Agricultural Tenancy Act and not a suit and therefore there cannot be continuation of a thing which was not in existence at all.
10. Section 141 of the Code on which reliance has been placed by Mr. Salam is in the following terms :- "141. The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction."
11. A bare reading of this section would make it clear that the provision made therein is in regard to procedural matters. The procedure provided in the Code in regard to the suit shall be applicable to all proceedings in any Court of civil jurisdiction. The word "procedure" occurring in this section makes the position clear. The procedure relating to an order in a suit would apply to other proceedings also in matters of procedure. But this section will have no application in regard to a matter relating to a substantive right, such as a right of appeal which is conferred by a law. As we read Order IX, rule 9 of the Code we B see it is provided therein that there may be an application for restoration of a suit dismissed for default. This is a procedural matter and as such this rule cannot have the effect of conferring a substantive right of appeal. In the absence of there being any provision of appeal against an order of rejection of a petition for restoration of the dismissal of an "application", the aid of section 141 of the Code cannot be invoked for filing an appeal. We are, therefore, of opinion that the learned Subordinate Judge is right in holding that these two appeals are not maintainable.
12. The view expressed above finds support in a decision of this Court in the case of Haji Muhammad Jayan and another v. Raju Prarnanik and others . In that case Akram, C. J. took the view that no appeal would lie under the Civil Procedure Code against an order dismissing an application under Order IX, rule 13 of the Code of Civil Procedure for restoring a proceeding under section 26-F of the Bengal Tenancy Act which had been disposed of ex parte. We respectfully agree with his Lordship.
13. To the same effect is a decision of the Calcutta High Court in the case of Birendra Nath Biswas v.
14. Monorama Devi and others . In that case Harri, C. J. expressed himself in the following terms : "It is to be observed that section 141 speaks of procedure. What pis made applicable to all proceedings in a Court of civil jurisdiction is the procedure provided in the Code with regard to suits. Now, a right of appeal is admittedly a substantive right and not a procedural right. Section 141 does not deal with substantive rights and therefore Courts have held that though Order IX, rule 9 is made applicable to applications other than suits no appeal would lie from a dismissal of such an application under Order XLIII, rule 1." This observation was made in a proceeding arising out of an application for pre-emption under1 2 section 26-F of the Bengal Tenancy Act which was dismissed for default. It was argued in that case that subsection (10) of section 26-F of that Act provided for an appeal and the aid of subsection
(10) was invoked for claiming the right of appeal. This argument was also repelled by the learned Chief Justice observing that an application for restoration was not under section 26-F of the Act but under Order IX, rule 9 of the Code of Civil Procedure. In the instant case there is also such a provision for appeal under subsection (10) of section 24 of the Non-Agricultural Tenancy Act. The learned Chief Justice observed :- "The dismissal of this application to set aside the ex parte dismissal was a proceeding not under section 26-F but under the provisions of Order IX, rule 9 of the Civil Procedure Code. That being so, no appeal could lie in this case by reason of subsection (10) of section 26-F, Bengal Tenancy Act." It will, therefore, be seen that this contention of Mr. Salam is also not of any avail to him on the ground indicated above by the learned Chief Justice and we respectfully agree with the view taken by the learned Chief Justice. For the reasons stated above, both the rules are discharged as no interference is called for. Parties are left to bear their own costs.
15. HABIBUR RAHMAN, J.--I agree 53 CWN 1 DR 61 AIR 1945 Cal. 77