LexLAKSHMINARAYAN GUIN & ORS. versus NIRANJAN MODAK
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B D E F G H LAKSI-(MINARAYAN GUIN & ORS. r. NIRANJAN MODAK December 3, 1984 (R.S PATHAK AND 0. CHJNNAPPA REDDY, JJ.] West Bengal Pre1nises Tenancy Act, 1956. sec/ion 13(1)-Act extended to the area durlng pendency of first appeal-Appellate Court-Whether bound Jo take into account change of law and extend benefit a/ the section. Words~ Phrases-Words "decree" occurring in s.13(1) of W.B. Premises Tenancy Act, 1965-Meaning of-Whether it refers to a decree which disposes of the suit finally, The appellants, landlord, flied 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 Men:iari in which the property i!i· situate.' Sub-s.(I) of section 13 of the Act provides that no order or decree for the recovery of p6ssession 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 tl)e 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 tria1 court had already decreed the suit under the provisions of the Transfer of Prop~rty Act. The High Court while allowing the appeal held that the first appellate court was bound to take into account, the change of law and to extend its benefit to the tenant and conse~ quently to set aside the decree of the trial 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 appe11ants, HELD : (I) It is well settled that when a trial court decrees a suit and the ' I i..N. GUiN V. NiRANJAN MODAi<: 20~ decree is challenged by a competent appeal, the appeal is considered as a conti- nuation 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. Therefore, reference to the word decree in s.13(1) is intended to the decree which disposes of the suit finally. and thus sub-s.(l) of s.13 or the Act can be invoked by a tenant during the pendency of an appeal against a trial court decree. (205H ; 206A·Bl (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 exceptions. The object of the section is to protect the posseseion 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 ordef or decree can be made by the Court in a landlord's suit for possession againsl a tenant. The kgislative 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. Therefore, a change in the law during the pendency of an appeal has to be taken into account and A B c will govern the rights of the parties even though the suit may have been 0 instituted, before the Act came into force. In the instant case, there is no dispute that the ~rounds mentioned in cls.(j) and (k) donot come into play and since there was no complaiance with
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