Full Judgment Text
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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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