Appeals under the Railway Claims Tribunal Act, 1987, arising out of the Railways Act, 1989, do not require hearing under Order XLI Rule 11 of the Code of Civil Procedure.

BHASKAR BHATTACHARYA, J. :- When an application in connection with this first miscellaneous appeal preferred against an award passed by the Railway Claims Tribunal, Kolkata Bench, came up for hearing, Mr. Bhattacharjee, the learned advocate appearing on behalf of the respondent, contended that this appeal is first required to be heard under Order XLI Rule 11 of the Code of Civil Procedure before any application is taken up for hearing. In this connection, he relied upon an unreported decision of a Division Bench of this Court in the case of Kananbala Biswas v. Union of India in F. M. A. T. No. 2362 of 2007. By the said decision, the Division Bench held that in view of the provision of Chapter V Rule 17(b) of the Appellate Side Rules, this type of appeals are required to be heard under Order XLI Rule 11 of the Code; in the judgment, however, no detailed discussion has been made why this type of appeal is required to face hearing under Order XLI Rule 11 of the Code. Mr. Bhattacharjee, who also appeared before that Bench in the abovementioned matter, submits that in the Appellate Side Rules it is stated that the appeal under "the Railways Act, 1890" are not required to be heard under Order XLI Rule 11 of the Code, but after the repeal of the said Statute, the present appeal is not under the Railways Act, 1890, but it is under the Railways Claims Tribunal Act, 1987. According to Mr. Bhattacharjee, after the repeal of the Railways Act, 1890, there has been no consequential amendment in the Appellate Side Rules and therefore, the appeal filed under the Railway Claims Tribunal Act, 1987 cannot be said to be an appeal under the Railways Act, 1890.

2. We have already pointed out that in the said order, the division Bench simply gave reference of the decision of the Special Bench in the case reported in 2003(2) W. B. L. R. 179 wherein it was merely held that except the three types of appeals mentioned in Chapter V Rule 17 of the Appellate Side Rules, namely, appeals under (1) Workmen's Compensation Act, (2) under Motor Vehicles Act, 1939 and (3) the Railways Act, 1890, all other first miscellaneous appeals are required to be heard under Order XLI Rule 11 of the Code.

3. Therefore, the sole question that falls for determination before us is whether in view of coming into operation of the Railway Claims Tribunal Act, 1987 after repealing Section 82F of the Railways Act, 1890, an appeal preferred under Section 23 of the Act of 1987, should be treated to be an appeal under the Railways Act, 1890 as provided in the Appellate side Rules so as to get exemption from the hearing under Order XLI Rule 11 of the Code.

4. It appears from record that the Railway Claims Tribunal Act, 1987 was enacted on 23rd December, 1987 and it was given effect to on 8th November, 1989. According to Section 13 of the said Railway Claims Tribunal Act, 1987, as it stood immediately after its incorporation, the provisions of the Railways Act, 1890 and the Rules made thereunder, so far as may be, would be applicable to the enquiry into and determination of any claim by the Claims Tribunal under the said Act. By Section 34 of the Railway Claims Tribunal Act, 1987, the Sections 82(B), 82(D) and 82(F) of the Railways Act, 1890 were omitted with effect from 8th November, 1989 and thus, the appeals under the Railways Act, 1890, after the coming into operation of the Act of 1987, were disposed of not by virtue of Section 82F of the old Act but by Section 23 of the latter Act, although the provision of the old Railways Act and Rules made thereunder were applicable in the matter of enquiring into and determining any claim by the Tribunal under the Act of 1987. Subsequently, the new Railways Act, 1989 was enacted and by Section 200 thereof, the Indian Railways Act, 1890, as it then stood, was repealed.

5. Therefore, the facts indicated above show that up to 8th November, 1989, the appeals against the decisions of the Claim Commissioners under the Railways Act, 1890 were pre