1. This is a reference to a Full Bench by a Bench of which one of us was a member on the ground that there was a conflict in this Court between two decisions, one reported in Raja Ram v. Madho Prasad : AIR1954All592 and the other in Sharafat Ullah Khan v. Raja Udairaj Singh : AIR1959All416 . In the latter decision the learned Judges, Beg and Tandon. JJ. doubted the correctness of the decision in : AIR1954All592 on the ground that they were unable to hold that Sections 3. 14 and 15 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947. had the effect of conferring retrospective operation on an Amending Act. Before we fully comprehend the scope of the controversy it is necessary to know a few facts of the case: this was also necessary because the whole case was referred for decision to the Full Bench.
2. The plaintiff in this case filed a suit for the ejectment of the defendants on the ground that he required the accommodation which was a house, for himself. The defendants, who were father and son had executed a rent note in plaintiff's favour in respect of the accommodation on the 3rd January, 1941, whereby they had taken the accommodation on a monthly rent of Rs. 4/-.
3. On the 9th September, 1946, the plain tiff served the defendants with a notice to quit the premises by the 22nd October, 1946 and also to pay up the arrears which had accrued by that date in respect of the premises.
4. The defendants contended inter alia in defence that the notice was bad and that they had sent a sum of Rs. 23/1/, after deducting a sum of As. 15/- which they had spent on the repairs of the premises, to the plaintiff as rent due for the six months for which arrears of rent were claimed by the plaintiff which amount the plaintiff had unjustifiably refused to accept. The defendants also controverted the plaintiff's claim that he required the premises to satisfy a personal need.
5. The suit was decreed by the trial court for arrears only and that to the extent of Rs. 24. The plaintiff's claim for ejectment was dismissed. An appeal was preferred by the plaintiff and the learned Civil Judge allowed the appeal and decreed the plaintiff's suit in its entirety. The learned Civil Judge repelled the contention raised on behalf of the defendants that their ejectment was protected by the provisions of Act III of 1947. The learned Civil Judge found against the defendants on the ' question of the validity and the service of the notice. The learned Judge below also seemed to affirm that the plaintiff had failed to establish the fact that he required the accommodation to meet his personal need.
6. A second appeal was preferred to this Court by the defendants and the only point of any substance urged before the learned single Judge was that in view of a notification made by the State Government on the 5th of March, 1949, published in the Gazette of that date, Act III of 1947, namely, the U. P. (Temporary) Control of Rent and Eviction Act, became applicable to the Town Area of Kaimganj wherein the disputed accommodation lay and a suit for ejectment could not succeed. It was contended on behalf of the defendants that the bar could be raised even in second appeal.
7. The learned single Judge upheld the decision of the lower appellate court and dismissed the second appeal, but granted leave to appeal to a Bench As we pointed out earlier, the only question of any substance which was agitated before the learned single Judge on behalf of the defendant-appellants was that even though on the date of the decree of the lower appellate court. Act III of 1947 did not apply to the area in which the property in dispute was situate, the Act having been since extended by the notification dated the 5th March, 1949, to the Town Area of Kaimgani the defendant-appellants were entitled to protection against ejectment. The learned single Judge repelled the contention of the appellants holding, in effect, that even though the notification dated the 5th March, 1949, made Act III of 1947 applicable to the Town Area of Kaimganj, even then the defendants could not take advantage of it because at the date when the suit had been filed by the plaintiff the suit had been properly instituted. The learned single Judge dealt with the argument raised on behalf of the appellants at one place in his judgment as follows:
'The matter of the applicability or otherwise of Section 3 may yet be approached from another standpoint The enforcement of this section has been specifically enjoined in Section 15 of the Act. That section, however, applies only to suits pending on the date of the commencement of the Act. The date of the commencement of the Act, as held in several cases, must now be taken to be the 1st of October, 1946, in view of the provisions of Section 1 (3) of the Act. The suit in the present case was filed much later on the 31st October. 1946.'
8. The question which was raised by Mr. Babu Ram Avasthi before the Bench hearing the special appeal and before us was that by virtue of Section 15 of the Act no decree for eviction could be passed against the defendants, except on the grounds mentioned in Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act. The contention on behalf of the plaintiff, however, was that the provisions of the Act not having applied to the area in which the property in dispute was situate at the time when the suit was filed, the suit could not fail because of what was contained in Section 15 of the Act.
9. The suit was filed on the 31st October, 1946. The U. P. (Temporary) Control of Rent and Eviction Act by virtue of Sub-section (3) of Section 1 was to be deemed to have come into force on the 1st of October, 1946. Thai Act, when it came into force, did not apply to the area in which the property in dispute was situate. As we pointed out earlier, a notification in the official Gazette was made on the 5th March, 1949. This notification was made in accordance with the powers conferred on the State Government under the Proviso to Sub-section (2-A) of Section 1 which read as follows:
'Provided, however, that the State Government, if satisfied, that it is necessary so to do in the interest of the general public residing in a Town Area constituted under the Town Areas Act. 1914, or in any other area, may by notification in the Official Gazette apply the Act, or any part thereof, to such town area or other area.'
10. The questions come to the fore and call for determination, first, whether the date, on which the notification was made, i.e., 5th March, 1949, could be said to be the date of the commencement of the Act, in respect of the area to which the notification related, and secondly, whether advantage could be taken by a defendant of what was provided for by Section 15 of the Act to defeat a plaintiff's suit, even though at the time when the suit had been filed Section 15 was inapplicable to such a suit.
11. In regard to the first question there appeared to us to be little difficulty, for what the State Government could do under the Proviso was nothing more or nothing less than by notification to make the Act, i.e., U. P. (Temporary) Control of Rent and Eviction Act. 1947, applicable to a town area or any other area. To us it appears that the words 'on the date of the commencement of this Act' in Section 15 of the Act were advisedly put in, in order to make the relief available to defendants under Section 15 in respect of the areas which were subsequently brought under the purview of the Act. A similar view was taken by this Court in Hazari Lal v. Kanhaiya Lal : AIR1953All686 by Malik C J., and Agarwala. .1 There could, in our view, be no question of prospectivity or retrospectivity in the case of a notification under the proviso to Sub-section (2-A) of Section 1 , The question that, therefore, remains for determination was the second question formulated above namely whether the appellants could take advantage of the protection provided for tenants under Section 15 of the Act in the instant case.
12. Section 15 of the U. P. (Temporary) Control of Rent and Eviction Act 1947, is in these words:
'In all suits for eviction of a tenant from any accommodation pending on the date of the commencement of this Act, no decree for eviction shall be passed except on one or more of the grounds mentioned in Section 3.'
In determining the above question one question looms in the forefront and that is whether the word 'suits' in the abovequoted section would include in it a 'second appeal.' If it would, then the protection provided to tenants under Section 15 would be available to the appellants, otherwise it would not be.
13. Whether the word 'suits' includes an appeal including a second appeal came up for decision in more cases than one. Chronologically this question directly came up for consideration in 1939 in the case of Shyamakant Lal v. Ram Bhajan Singh before the then Federal Court.
14. The next case in point of time was, again, a decision of the Federal Court in Lachmeshwar Prasad v. Keshwar Lal . In Lachmeshar Prasad's case . Sir Maurice Gwyer, C. J. quoted with approval the following observations taken from an American case:
'We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered.'
Varadachari J. pointed out in the same case that a Court of Appeal in India did not merely act as a Court of error and that a Court was bound to confirm a decree passed by the Court below if it was shown that the decree was correct according to the law as it stood on the date when it was passed. Varadachari, J. pointed out that the hearing of an appeal was in the nature of a rehearing and he relied on the provisions of Section 107 of the Code of Civil Procedure which provided that a Court of appeal had the same power and was to perform, as nearly as possible, the same duties as were conferred on and could be performed by the court of first instance. The consensus of opinion of the learned Judges composing the Bench which heard Lachmeshwar Prasad's case was that an appellate court was bound to take into account the state of law as it existed on the date when the appeal came up for hearing.
15. On the aforementioned view it had to be held that a Court of Appeal was bound to take into account the law applicable to the case at the date when the case came up for decision in appeal On the decision of the Federal Court noticed above it also, in our opinion, was patent that an appeal was but a continuation of the suit.
16. The question whether the word 'suit' in Section 15 of the U. P. (Temporary) Control of Rent and Eviction Act included an appeal came up for specific decision in the case of Niranjan Lal Bhargava v. Ram Kali Devi. : AIR1950All396 where Wanchoo and Seth. JJ held that the word.
' 'suit' mentioned in Section 15 includes a suit while it is before the court of first instance and also while it is before the appellate court. An appeal is but a continuation of a suit.'
17. This question again came up for consideration before this Court in Manzoor Ali Usmani v. Mt. Lal Devi : AIR1951All396 wherein Sankar Saran and Bind Basni Prasad, JJ. held that
'the word 'suit' in Section 15 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 includes an appeal.'
In Raj Narain v. Sita Ram Sri Krishen Das : AIR1952All584 the aforementioned question again came up for decision before Malik, C. J. and Mushtaq Ahmed, J. and they held that
'the word 'suit' in Section 15 of the U.P. (Temporary) Control of Rent and Eviction Act is intended to apply not only to suits pending in the trial Court but also to a suit in its later stages right upto the court of final appeal.'
18. : AIR1954All592 was decided by Malik, C. J. and Sapru, J. in 1954 and the question that pointedly arose in that case was whether an amendment made to the U. P. Act XLIV of 1948 applied to the construction in respect of which the controversy had arisen and in deciding that controversy the Bench said this:
'The position, therefore, is that on the date when the suit was filed the defendant was liable to be ejected in accordance with the provisions of Section 106 of the Transfer of Property Act (Act IV of 1882), but during the pendency of the suit in the trial court the U.P (Temporary) Control of Rent and Eviction Act, 1947, was made applicable to those premises also, so that a defendant could be ejected only in accordance with the provisions of Section 3. The point, therefore, arises, whether this amendment, which was made during the pendency of the suit, should govern the decision. There can be no doubt that if the plaintiff had withdrawn the suit and filed a fresh suit for ejectment, the Act would have applied having already been amended.
It is, however urged that though the amendment would apply if a fresh suit had been filed, but the Act, would not apply to an already pending suit as the amendment was not made expressly retrospective.
In examining the scheme of the Act this Court has in several cases pointed out that the Act was intended to apply to cases in which the decree was passed before the commencement of the Act, to cases pending on the date when the Act came into force and to cases instituted after the Act came into force.'
The ratio of the decision in Raja Rain's case. : AIR1954All592 noticed above appeared to have been doubted by Beg and Tandon. JJ. in : AIR1959All416 they observed that the facts of Raja Ram's case. : AIR1954All592 were materially different from those of the case of Sharafat Ullah Khan. : AIR1959All416 which had before them. In Sharafat Ullah Khan's case : AIR1959All416 the learned Judges held that Section 15 having clearly referred to suits could not apply to suits instituted subsequently, and pointed out as follows:
'This section is applicable to those cases only which were pending at the commencement of the Act of 1947 and in those cases a decree for eviction cannot be made except on one or more of grounds mentioned in Section 3. But it has no application to cases, as the one before us, which were filed long after. In their case effect to the amended Clause (a) of Sub-section (1) of Section 3 can be given in one circumstance only, viz. that the amendment itself has been given retrospective operation.'
We are unable to agree with the view expressed by the learned Judges quoted above. As we pointed out earlier, there was no question of retrospectivity of either the notification or any provision of the Act. The question that was the cardinal question was whether the word 'suit' in Section 15 of the Act included an appeal, and as we have already held, there could be, on decided cases and on general principles of law as well, no escape from the position that an appeal was a continuation of a suit.
19. In our view, the decision in G. Veeraya v. Subbiah Choudhry : 1SCR488 relied upon by Beg and Tandon, JJ. in Sharafat Ullah Khan's case. : AIR1959All416 was no authority for the view which they, in effect, expressed in that decision. In Veeraya's case : 1SCR488 their Lordships clearly pointed out that
'The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.'
We arc of the opinion that the aforequoted observation of their Lordships of the Supreme Court approves, without question, the view expressed, in regard to the position of an appeal qua a suit, by the Federal Court and this Court in the cases noticed above. We have, therefore, no hesitation in holding that the defendants in the instant case could take advantage of what was provided for by Section 15 of the U. P. (Temporary) Control of Rent and Eviction Act. 1947.
20. The question that has now to be seen is what is the appropriate order that should be made in this case. In our view the proper order would be to send the case to the court below with the direction that the court below would afford the parties opportunity to amend the pleadings, if they so want, and to produce such additional evidence as they consider appropriate and as is relevant to the controversy between the parties in view of what the defendants could contend as against the relief for ejectment claimed by the plaintiff The question as to the validity of the notice both under Section 106 of the Transfer of Property Act and under Section 3 (a) of the U. P. (Temporary) Control of Rent and Eviction Act would also be open for being canvassed in the court below by the parties. We order accordingly.
21. The record of the case would be sent down to the court of first instance forthwith for determination of the suit in accordance withthe views expressed above. The costs of thisappeal would abide the result.