1. The only question of importance to be determined in this case is whether Section 109, Ben. Ten. Act, before its amendment bars the plaintiff's suit or whether the section as amended in 1928 has retrospectively removed the bar. There were other questions raised, such as limitation, which have all been decided in favour of the plaintiff by the Court of appeal below. The trial Court found two main issues against the plaintiff and held that the suit was barred by limitation and also by the operation of Section 109 before its amendment.
2. The suit was instituted on 14th April 1927. The decision of the first Court was pronounced on 16th April 1928. The amended Bengal Tenancy Act came into force on 21st February 1929 and the judgment of the lower appellate Court was delivered on 21st March 1929, that is, after the new Act came into operation. The decision of the trial Court was undoubtedly correct according to the law as it stood at the date it was pronounced. The learned District Judge is of opinion that as Section 109 which relates to a matter of procedure only has since been amended, the law as it stood when he gave his decision should apply.
3. It appears that the defendant was recorded in the Record of Rights as a tenant under the plaintiff and his tenancy was recorded as 'no rent paid, liable to assessment of rent.' In 1918 the plaintiff applied under Section 105, Ben. Ten. Act, for settlement of fair and equitable rent payable by the defendant in respect of the land hold by him. Soon after he withdrew the application with liberty to bring a fresh suit. On these facts the trial Court on the authority of the Full Bench decision in Purna Chandra v. Narendra Nath : AIR1925Cal845 and also the decision of the Privy Council in Raja Rishee Case Law v. Satish Chandra Pal A.I.R. 1929 P.C. 134 held that the present suit could not be maintained. The learned District Judge on appeal holds that Section 109 relates to a matter of procedure only, and according to the well known canon of interpretation of statute relating to procedure only, applies to all proceedings pending at the time when it comes into force. Section 109 as amended by the Act of 1928 entitles the. landlord to maintain a suit in the ordinary civil Court oven if his application under Section 105 has failed provided it has not been decided on the merits. The learned Judge admits that if the new law has no retrospective effect or does not apply to pending proceedings he is bound to follow the Full Bench decision. But ho is of opinion that though the amended section does not say that it will function retrospectively there can be no objection to allowing this point of procedure to be decided by the new law. In my judgment this view of the law is not correct. It is not necessary to go in detail into the rule of interpretation of statutes relating to the matter in issue which is to be found in Maxwell's Interpretation of Statutes, Edn., 7 pp. 192 and 197.
4. The matter has been fully threshed out in the Special Bench decision in Sadar Ali v. Dalimuddin : AIR1928Cal640 . There the question was whether the amended Letters Patent, which took away the right of appeal from the judgment of a single Judge of this Court except with the permission of the Judge, had retrospective effect and should be applied to suits instituted before the amendment of the Letters Patent. It was held that the law applicable with regard to the right of appeal was the law which was in force at the time when the suit was instituted. But it may be argued in this case that the position here is just the reverse. At the time when the present suit was instituted the plaintiff had no right to bring a civil suit; but when the matter came up for consideration before the lower appellate Court he had been given such a right by change in the law. Such a question too is covered by the decision of the Judicial Committee in Delhi Cloth and General Mills Co. Ltd. v. Income-tax, Commissioner, Delhi where no right of appeal to His Majesty in Council existed under Section 66, Income-tax Act, when the proceedings were instituted, but such right of appeal to England was given by subsequent amendment of the Income-tax Act. The Judicial Committee relying upon the decision in the case of the Colonial Sugar Refining Co. Ltd. v. Irvin  A.C. 369 held that the right of appeal is a substantive right and if it is given or taken away by subsequent amendment of the law the law as it stood at the initiation of the proceedings will apply.
5. The question therefore that falls for consideration is whether the provision of Section 109, Ben. Ten. Act, as it stood before its amendment related to procedure only or conferred in certain circumstances a substantive right to the other party. There seems hardly room for doubt that Section 109 did not merely lay down the procedure but by taking away the ordinary right of suit of the plaintiff conferred a very valuable right on the defendant in some cases. The immunity from a civil suit thus gained by the defendant is a substantive right inasmuch as it enabled [him to hold the property in the right mentioned in the Record of Eights without further litigation. In essence it is difficult to distinguish such a right from a right of appeal. If no right of appeal is given by statute at the date of the suit the successful party acquires a certain right under the decision of the suit which is not open to challenge in appeal. In a case under Section 109 of the old Act where an application is made and withdrawn the 'defendant obtains the right to hold the property as recorded in the Record of Rights without further risk of litigation. I accordingly hold that the right which the defendant in this case obtained under Section 109 of the old Act is a substantive right which cannot be affected' except by express words, by subsequent alteration of the law. This view seems to be in accordance with Section 8 (a), General Clauses Act 10 of 1897 and Section 6(a), Bengal General Clauses Act, 1896. The result is no doubt unfortunate and the plaintiff is not so much to blame for it as the conflicting decision of this Court on the question, but the result is inevitable and the only relief I can give to the plaintiff in this suit is not to allow any costs to the defendant.
6. In the result the appeal is allowed. The judgment and decree of the lower appellate Court are set aside and those of the Court of first instance restored.
7. Each party to bear its own costs (throughout.
8. I agree. In my judgment Section 109, Ben. Ten. Act, as it stood before the amendment of 1928, was applicable to the case and operated as a bar to the present suit. I am also of opinion that the learned District Judge erred in holding that the matter related to one of procedure only.