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PETITIONER: LAKSHMINARAYAN GUIN & ORS.

       Vs.

RESPONDENT: NIRANJAN MODAK

DATE OF JUDGMENT03/12/1984

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. REDDY, O. CHINNAPPA (J)

CITATION:  1985 AIR  111            1985 SCR  (2) 202  1985 SCC  (1) 270        1984 SCALE  (2)924  CITATOR INFO :  RF         1991 SC1654  (43)

ACT:              West Bengal Premises Tenancy Act, 1956, section 13(1)-Act extended  to the  area during  pendency  of  first appeal-Appellate Court-Whether  bound to  take into  account change of law and extend benefit at the section.          Words & Phrases-Words "decree" occurring in s.l3(1) of W.B.  Premises Tenancy  Act, 1965-Meaning  of-Whether  it refers to a decree which disposes of The suit finally.

HEADNOTE:             The appellants, landlord, filed an eviction suit against the  respondent in  the year  1967 for possession of some house  property situate in Mauza Memari in West Bengal, on the  ground of  non-payment of  arrears of  rent and  the requirement of  the accommodation  for demolition  to enable the appellants  to construct  separate houses  for their own business. The  suit was  decreed by the trial Court in 1969. The respondent  filed an  appeal before  the first appellate court. During  the pendency  of the  appeal, the West Bengal Government extended  the West  Bengal Premises  Tenancy  Act 1956 to  Memari in  which the property is situate. Sub-s.(l) of section  13 of  the Act  provides that no order or decree for the recovery of possession shall be made by any court in a land  lords’s suit  against the  tenant except  on certain enumerated grounds.  Sub Section  6 provides that no suit or proceeding for  the recovery  of possession  on any  of  the grounds mentioned  in  sub-section  1,  except  the  grounds mentioned in  clauses (j)  and  (k)  can  be  filed  by  the landlord "unless  he has  given to  the tenant  one  month’s notice  expiring   with  a  month  of  tenancy".  The  first appellate court  dismissed the appeal. In a second appeal by the respondent  before the  High Court,  he urged  that  the appeal would  necessarily be governed by the changed law. On the other  hand, the appellants contended that the Act could not be  invoked in  a case where the trial court had already decreed the  suit under  the provisions  of the  Transfer of Property Act.  The High Court while allowing the appeal held that the  first appellate  court  was  bound  to  take  into account, the change of law an(l to extend its benefit to the tenant and consequently to set aside the decree of the trial

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court and  dismiss  the  suit,  and  since  the  notice  for eviction served  by the appellants on the respondent did not comply with the requirements of sub-section 6 of section 13, the suit was incompetent.          Dismissing the appeal, by the appellant, ^              HELD;  (1) It is wall settled that when a trial court decrees a suit and the 203 decree is  challenged by  a competent  appeal, the appeal is considered as  a continuation  of the  suit,  and  when  the appellate decree  affirms modifies  or reverses the A decree on the  merits, the  trial court  decree, is  said in law to merge in  the appellate  decree. and  it  is  the  appellate decree which  rules. Therefore, reference to the word decree in 5.13(1)  is intended  to the decree which disposes of the suit finally,  and thus  sub-s.(l) of s.13 of the Act can be invoked by a tenant during the pendency of an appeal against a trial court decree. [1205H; 206A-B]             (2) Sub-sec.(l) of s.13 directs the court not to make any  order or  decree for possession subject, of course to the  statutory exception. The object of the section is to protect  the  possession  of  the  tenant,  subject  to  the exceptions specified in the sub-section, and that protection is ensured  if the  Court construes  the sub-section to mean that, subject to those exceptions, no effective or operative order or  decree can  be made  by the  Court in a landlord’s suit  for  possession  against  a  tenant.  The  legislative command in  effect deprives  the  court  of  is  unqualified jurisdiction to  make such  order or decree. It is true that when the  suit  was  instituted  the  court  possessed  such jurisdiction and  could pass a decree for possession. But it was divested  of that  jurisdiction when the Act was brought into force.  The language  of  the  sub-section  makes  that abundantly clear,  and regard  must be  had to  its  object. Therefore, a  change in  the law  during the  pendency of an appeal has  to be  taken into  account and  will govern  the rights of  the parties  even though  the suit  may have been instituted, before  the Act  came into force. In the instant case, there  is no  dispute that  the  around  mentioned  in cls.(j) and (k) do not come into play and since there was no compliance with  the requirement of sub-s.6 of s.13 the suit was incompetent. [206D; B; E; 207E; 205 F]      Shah Bhojraj  Kuverji oil  Mills and Ginning Factory v. Subhash Chandra  Yograj Sinha  [1962]  2  S.C.R.  159.  Mst. Rafiquennessa v.  Lal Bahadur  Cheetri [1964]  6 S.C.R. 876, Ram Sarup v. Munshi and others etc. [1963] 3 S.C.R. 858 Mula and two  other v.  Godhu and  others [1970]  2 S.C.R.  129 & Amarjit Kaur  v. Pritam  Singh and  others [1975]  1 S.C.R., followed.      Dayawati and  Another v.  Inderjit and  others [1966] 3 S.C.R. 275,  Kristnhma Chariar  v. Mangammlal  & Lachmeshwar Prasad Shukul  v. Keshwar  Lal Chaudauri  [ 1940]  F.C.R. 84 referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDlCTION: Civil  Appeal No. 439 of 1977.      Appeal by  Special leave  from the  Judgment and  order dated the  28th January,  1976 of the Calcutta High Court in Appeal from Appellate Decree No. 1195 of 1970.      Pankaj Kalra,  D. N.  Mukherjee and  Rathin Das for the Appellant.

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    Shankar Ghose and G.S. Chatterjee for the Respondent. 204          The Judgment of the Court was Delivered. by      PATHAK, J.  This is  a plaintiffs’  appeal  by  special leave against  the judgment  and decree of the High Court at Calcutta dismissing  their suit for ejectment and arrears of rent.              The  appellants are the owner of house property situate in  Mauza memari  in the District of Burdwan in West Bengal. The  respondent is  the tenant  of some rooms in the said property  on a  monthly rent of Rs. 100. The appellants filed a  suit,  out  of  which  the  present  appeal  arise, claiming that the respondent was in arrears of rent which he refused to  pay despite  demands and  that the accommodation was required  for demolition  to enable  the  appellants  to construct separate house for their own business.      The suit  was resisted  by the  respondent who  alleged that he  had been  let in by one Sishubala Bisayee, that the appellants had no title to the property and had fraudulently secured some  documents from  her which  had given rise to a suit which was pending. It was also denied that the premises were  old   and  needed  to  be  demolished,  and  that  the respondent was in arrears of rent.      The suit  was decreed  by the  trial court  which found that the respondent was a tenant of the appellants, and that the appellants  were entitled  to possession  and to recover the arrears  of  rent.  An  appeal  by  the  respondent  was dismissed by  the first  appellate court. A second appeal by the respondent  was, however,  allowed by  the High Court by its judgment  and decree  dated January  28, 1976.  The High Court held  that by  virtue  of  the  West  Bengal  Premises Tenancy Act,  1956  being  extended  to  Memari  during  the pendency of  the first appeal, the first appellate court was bound to  take into  account the change of law and to extend its benefit to the tenant, and consequently to set aside the decree of the trial court and dismiss the suit.      Sub-s. (1) of s. 13 of the West Bengal Premises Tenancy Act as  extended to  Memari during the pendency of the first appeal, provides.-             "Notwithstanding anything to the contrary in any      other law,  no order  or decree  for  the  recovery  of      possession of  any premises  shall be made by any Court      in favour of 205      the landlord  against a tenant except on one or more of      the grounds.. " and then  follow the  specific grounds  upon which  alone  a landlord  is   entitled  to  evict  his  tenant.  There  was considerable  debate  before  the  High  Court  whether  the benefit of  the Act  could be  extended to the respondent in the instant case. The appellants contended that it could not be invoked  in a  case where  the trial  court  had  already decreed the  suit under  the provisions  of the  Transfer of Property Act,  whereas the  respondent urged that the appeal would necessarily  be governed  by the changed law. The same point  arises  before  us.  Upon  the  considerations  which follow, we  think that  the High Court is right in upholding the contention  of the respondent, and that this appeal must faill.      The suit  was filed on June 12,1976, and was decreed by the trial  court on February 17,1969. During the pendency of the first  appeal, the  West Bengal  Government extended the West Bengal  Premises Tenancy  Act, 1956 to Memari, in which the property  is situate.  S.13 of  the Act  provides for  a qualified protection of the tenant against eviction inasmuch

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as it  injuncts the court from passing an order or decree in a landlord’s  suit for  recovery of possession except on the limited grounds  detailed in  sub-s. (1) thereof. Sub-s. (6) provides that  no suit  or proceeding  for the  recovery  of possession on any of grounds mentioned in sub-s. (1), except the grounds  mentioned in  clauses (j) and (k), can be filed by the  landlord "unless  he has  given to  the  tenant  one month’s notice  expiring with  a month of tenancy". There is no dispute that the grounds mentioned in clauses (j) and (k) do not  come into  play in  the instant case. The High Court that the notice for eviction served by the appellants on the respondent  gave   notice  of   less  than  one  month  and, therefore, there  was no compliance with sub-s.(6) of s. 13. Consequently, it held that the suit was incompetent.      As has  been stated earlier, sub-s. (1) of s. 13 of the Act provides  that no  order or  decree for  the recovery of possession shall  be made  by any court in a landlord’s suit against the  tenant except  on certain  enumerated  grounds. Does the  decree here refer to the decree of the trial court or, where  an appeal  has been  preferred, to  the appellate decree? Plainly,  reference is  intended to the decree which disposes of the suit finally. It is well settled that when a trial court decrees a suit and the decree is challenged by a 206 comptenet appeal, the appeal is considered as a continuation of the suit, and when the appellate decree affirms, modifies or reverses the decree on the merits, the trial court decree is said  in law  to merge in the appellate decree, and it is the appellate  decree which  rules. The object of sub-s. (1) of s.  13 is  to  protect  the  possession  of  the  tenant, subject, to the exceptions specified in the sub-section, and that protection is ensured if we construe the sub-section to mean that,  subject to  those exceptions,  no  effective  or operative order  or decree  can be  made by  the Court  in a landlord’s suit  for possession  against a  tenant.  To  our mind, therefore,  sub-s. (1)  of s.  13 of  the Act  can  be invoked by a tenant during the pendency of an appeal against a trial court decree.      The next  point is  whether sub-s.  (1) of  s.13 can be invoked where  the suit  was instituted  before the Act came into force.  In the  instant case,  the suit  was instituted long before the Act was extended to Memari. Sub-s. (1) of s. 13 directs  the court  not to  make any  order or decree for possession subject,  of course, to the statutory exceptions. The legislative  command in effect deprives the court of its unqualified jurisdiction to make such order or decree. It is true that  when the  suit was Instituted the court possessed such jurisdiction  and could  pass a  decree for possession. But it  was divested  of that  jurisdiction when the Act was brought into  force. The  language of  the sub-section makes that abundantly clear, and regard must be had to its object. In Shah  Bhojraj Kuverji  oil Mill  and Ginning  Factory  v. Subhash Chandra  Yograj Sinha(l)  a Bench  of five Judges of this Court had occasion to consider sub-s.(l) of s.12 of the Bombay Rents,  Hotel and  Lodging House  Rates Control  Act, 1947. Sub-s. (1) of s. 12 provided:                "A  landlord shall  not be  entitled  to  the      recovery of  possession of  any premises so long as the      tenant pays, or is ready and willing to pay, the amount      of the standard rent .. . On the  question whether  the provision  applied to  pending suits for  possession, the  learned Judges drew attention to the point of time specifically mentioned in the sub-section. lt operated,  they said,  "when the  decree for  recovery of possession will have to be passed" and did not refer back to

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the institution of the suit. By a (1) [l962] 2 S.C.R. I59. 207 unanimous judgment  the learned  Judges held  that the  sub- section applied  to pending  suits. In  passing, it  may  be noted that  the A  learned  Judges  expressed  a  degree  of hesitation on  whether a statutory injunction of that nature could be  applied retrospectively to appeals against decrees already made.  But any doubt on the point must be considered to have  been finally  removed by  this Court  when  in  Mr. Rafiquennessa v.  Lal Bahadur  Cheetri(l) another  Bench  of five Judges,  which included  J. C. Shah J. who was a member of the  Bench in the earlier case, held on an interpretation of clause  (a) of  sub-s. (1)  oft he Assam Non-Agricultural Urban Areas Tenancy Act, 1955, which prohibited the eviction of a tenant. that the statutory provision came into play for the protection  of the  tenant even  at the appellate state. The learned  Judges relied  on the  principle that an appeal was a  continuation of the suit and that the appeal would be governed by  the newly  enacted clause  (a) of sub-s. (1) of s.5 even  though the  trial court  decree  had  been  passed earlier.      That a  change in  the law  during the  pendency of  an appeal has  to be  taken into  account and  will govern  the rights of  the parties  was laid  down by  this Court in Ram Sarup v.  Munshi and  others etc.(2),  which was followed by this Court in Mula and others v. Godhu and others.(3) We may point out  that in  Dayawati and  Another  v.  Inderjit  and others(") this Court observed:-                "If  the new  law speaks  in language,  which      expressly or by clear intendment, takes in even pending      matters, the  Court of  trial as  well as  the Court of      appeal must  have regard  to an intention so expressed,      and the  Court of  appeal may give effect to such a law      even after the judgment of the Court of first instance.      " Reference may  also be made to the decision of this Court in Amarjit Kaur  v. Pritam Singh and others(’) where effect was given to  a change  in the  law during  the pendency  of  an appeal, relying on the proposition formulated as long ago as Kristnama Chariar v. G (1) [1964] 6 S.C.R. 876, (2) [1963] 3 S.C.R. 858. (3) [1970] 2 S.C.R. 129. (4) [1966] 3 S.C.R. 275 (5) [1975] I S.C.R. 605. 208 Managammal(1) by Bhashyam Iyengar J., that the hearing of an appeal A  was, under  the processual law of this country, in the nature  of a  rehearing of  the suit.  In  Amarjit  Kaur (supra) this  Court  referred  also  to  Lachmeshwar  Prasad Shukul v.  Keshwar Lal  Chaudhuri(2) in  which  the  Federal Court had laid down that once a decree passed by a court had been appealed against the matter became sub judice again and thereafter the  appellate court acquired seisin of the whole case,  except   that  for  certain  purposes,  for  example, execution, the  decree was  regarded as  final and the court below retained jurisdiction.      It is apparent that this appeal cannot succeed.      The appeal is dismissed with costs. M.L.A                                      Appeal dismissed. (1) ILR 1902 26 Mad 91 (FB). (2) [1940] F.C.R. 84. 209

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