R. Bhattacharya, J.
1. This appeal is by the defendant Niranjan Modak who suffered a decree for ejectment in respect of the suit premises in the original suit filed by the plaintiff Lakshminarayan Guin and others, the respondents before this Court. In the first appeal below also Niranjan Modak was unsuccessful.
2. Briefly stated, the case of the plaintiffs is that they are the owners of the suit property, a house and the defendant was a tenant under them in respect of the premises in question at a monthly rent of Rs. 100 payable according to Bengali Calendar month. The defendant did not pay any rent for the suit premises to the plaintiffs in spite of demand. Moreover, the plaintiffs required the premises for reconstruction of a new house on the land for their own use. As the defendant did not vacate the house in spite of service of notice to quit, the suit was filed for recovery of khas possession and also for arrears of rents. The defendant filed a written statement stating that there was no relationship of landlord and tenant as between him and the plaintiffs. The allegation about arrears of rent is false. According to the defendant, one Sishubala is the owner of the house and the defendant is a tenant under her and he paid rents to the said landlady. It has been further stated that the father of the plaintiffs obtained several deeds from Sishubala by making misrepresentation and by practising fraud. The trial court found that the case of the plaintiffs was proved and the defence case was not accepted. The suit was, therefore, decreed. In the first appeal taken by the defendant, it was held that the defendant was a tenant under the plaintiffs and the appellate court below also agreed with the triall court to affirm the decree passed against the defendant.
3. I have heard Mr. Banerjee, the learned Advocate appearing on behalf of the appellant and Mr. Ghosh for the respondents.
4. The only point that has been urged by Mr. Banerjee on behalf of the defendant-appellant is that as the provisions of the West Bengal Premises Tenancy Act, 1956, hereinafter referred to as the Act were extended during the pendency of the first appeal below to the area where the suit premises stands, the decree passed by the trial court under the Transfer of Property Act is liable to be set aside in the absence of any evidence on record to prove any case as required under the Act. Mr. Ghosh's contention on the other hand, is that as the provisions of the Act have been extended to the suit properties after the passing of the original decree against the defendant, there can be no occasion for application of the provisions of the Act in the present case. The learned Advocates referred to several decisions which I have discussed hereafter.
5. The original suit was filed on 12-6-67. The decree was passed by the trial court against the defendant on 17-2-69. The appellate court below dismissed the appeal on 16-1-70 and the present second appeal was presented on 25-3-70-Admittedly when the decree was passed by the trial court, the Act was not extended to the area of the suit property. The suit relates to a house which comes under the definition of 'premises' according to the Act. By the Notification No. 18398-LR/41-29/69 the Government extended the Act to the area called Memari where lies the suit premises. Both the courts below dealt with the case as one under the Transfer of Property Act. Regarding these facts there is no dispute.
6. Mr. Ghosh at one stage made an attempt to argue that the records would show that the decisions arrived at by both the courts below were made according to the evidence as required under the provision of the Act. The record, however, reveals that no notice was served upon the defendant under Section 13(6) of the Act and moreover, there is no evidence whatsoever proving any ground for ejectment of a tenant as mentioned in Section 13 (1) of the Act and therefore, Mr. Ghosh gave up that point. His main contention against the argument of Mr. Banerjee is that when the Act was extended during the pendency of the first appeal, the objection taken by Mr. Banerjee will be futile as a decree for eviction had already been passed by the trial court. Mr. Ghosh wanted to say that in the first appeal when the Act was extended, the defendant could not be a tenant as defined under the provisions of the Act so as to get any relief in the present case. Therefore, the first and the only question that arises for the decision is whether the decree passed by the trial court against the defendant would be set aside on the ground that the Act came to be applicable to the suit premises during the pendency of the first appeal and whether the dismissal of the appeal by the first appellate court shall, in the second appeal, be set at naught and the suit should be dismissed. Mr. Ghosh has submitted that when the suit was filed, it was to be governed by the Transfer of Property Act and according to the provisions of that Act the suit was decreed. The subsequent extension of the Premises Tenancy Act will not alter the position as it was at the time of the institution of the suit,
7. The first case referred to by Mr. Banerjee is Lachmeshwar Prasad Shukul v. Keshwar Lal Chowdhury, decided by the Federal Court and reported in 1940 FCR 84 = (AIR 1941 FC 5). That was a suit by a mortgagee for recovery of money by sale of the mortgaged property. The suit was decreed. The amounts were borrowed partly to discharge antecedent debts and partly to meet future expenses. A compound interest was also allowed. There was an appeal to the High Court and there was a cross appeal. The claim for compound interest was disallowed in the High Court. There was a deduction in the amount of decree also on the bonds. A contention was raised before the High Court based on Section 11 of the Bihar Money Lenders Act which was enacted during the pendency of the appeal. The High Court held that the said section was void and granted a certificate under the Constitution Act. An appeal was preferred to the Federal Court by the defendants. After the decision of the High Court in the matter, the Bihar Legislature enacted Act VII of 1939 taking certain precautions necessary to obviate the objections to the validity of the earlier Act. On the question whether the court is to take into account the legislative changes since the decision under appeal, Gwyer, C.J. said:
'...... I desire to point out that the rule adopted by the Supreme Court of the United States is the same as that which I think commends itself to all three members of this Court. In Patterson v. State of Alabama, Hughes C.J. said '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 the 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.'
This view of its powers was reaffirmed by the Court in a case decided as recently as March last; Minnesoto v. National Tea Co., (1940) 309 US 551 at p. 555.' The same view will appear from the judgment of Varadachariar, J. in his separate judgment. He says as follows:
'As stated in Shymakant's case, there is no reason to suppose that the powers of this Court when acting as a court of appeal are less extensive than those of the High Courts when hearing an appeal and it has been a principle of legislation in British India at least from 1861 that a court of appeal shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Civil Procedure Code on courts of original jurisdiction.'
Further down in his judgment he says,
'It is also on the theory of an appeal being in the nature of a re-hearing that the courts in this country have in numerous cases recognized that in moulding the relief to be granted in a case on appeal, the court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against.'
8. Let us now consider the case of K.C. Mukherjee v. Mt. Ram Ratan Kaur (AIR 1936 PC 49) referred to in the Federal Court case just considered. Here a suit was filed by the Official Receiver of the High Court at Calcutta against Ram Ratan Kaur on the ground that she had taken a transfer of a non-transferable occupancy holding by a deed dated 28-9-1916. The suit was filed on 30-6-1927 The trial court passed a decree for eviction of the defendant No. 1 Kaur. An appeal was taken to the High Court at Patna. It was held that after the date of the transfer, the right of the transferee was recognized by the plaintiff or his predecessors. An appeal was taken to the Privy Council by the Official Receiver. During the pendency of the appeal before the Board, Bihar Tenancy Amendment Act, 1934 was passed and the operation of the Act was started on 10-6-1935. Particularly Section 26 (N) of the New Act was relevant in that case and according to this provision, every person claiming an interest as landlord in any holding or portion thereof shall be deemed to have given his consent to every transfer of such holding or portion by sale, exchange, gift or will made before the first day of January, 1923 and in case of the transfer of a portion of a holding, to have accepted, the distribution of the rent of the holding as stated in the instrument of transfer. If this new provision was applicable, then certainly, the suit would be dismissed. In the new Act there was no saving clause modifying the effect of Section 26 (N). On this point it has been held as follows:
'This is retrospective; the question is not whether general language shall be taken only in a prospective sense. The object of this section can only be to quiet titles which are more than ten years old. and to ensure that if during those ten years the transferee has not been ejected he shall have the right to remain on the land. Within this class the legislature has not thought fit to discriminate against the tenants whose right is under challenge in a suit, a course which it may well have regarded as invidious or unnecessary. As substantive rights of landlords and their accrued causes of action were to be abrogated, respect for pending suits over old transfers cannot be assumed.'
9. The next case relied upon by Mr. Banerjee is G.T.M. Katturuswami v. Setra Veerawa, reported in : AIR1959SC577 . In this case also the principles referred to in the case of Lachmeswar Prosad Sukhul (AIR 1941 FC 5) mentioned earlier has been reaffirmed in the following words of Imam, J.:
'It is well settled that an appellate court is entitled to take into consideration any change in the law.'
10. I now come to S.B.K. Oil Mills v. Subhas Chandra reported in : 2SCR159 . In this case while a suit for eviction was pending, a Notification was issued under Section 6 of the Bombay Rents Hotels & Lodging House Rates Control Act, 1947 applying Pt. II of the Act to the area where the suit property was situated and the tenant claimed protection under Section 12 in Part II of the Act which deprived the landlord of the right of possession under certain circumstances. The High Court held that Section 12 was prospective in character and did not apply to pending suite or proceedings. The Supreme Court on this point held as follows:
'But a section may be prospective in some parts and retrospective in other parts. While it is the ordinary rule that substantive rights should not be held to be taken away except by express provision or clear implication, many Acts, though prospective in form, have been given retrospective operation, if the intention of the Legislature is apparent This is more so, when acts are passed to protect the public against some evil or abuse. (See Craies on Statute Law, 5th Edn., p. 365), The sub-section says that 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 standard rent etc. and observes and performs the other conditions of the tenancy. In other words, no decree can be passed granting possession to the landlord, if the tenant fulfils the conditions above mentioned.'
In the same judgment it has been stated: 'The point of time when the sub-section will operate is when the decree for recovery of possession would have to be passed. Thus, the language of the sub-section applies equally to the suits pending when Part II comes into force and those to be filed subsequently. The contention of the respondent that the operation of Section 12(1) is limited to suits filed after the Act conies into force in a particular area cannot be accepted. The conclusion must follow that the present suit cannot be decreed in favour of the respondent.' The question, therefore, arises whether the Court is to see from the language of the statute what the intention of the Legislature is and the question would be further whether the provision in question will be applicable in the pending cases. It all depends upon the construction of the statute and the language used.
11. Now, let us consider the relevant Section 13 of the West Bengal Premises Tenancy Act extended to Memari during the pendency of the suit. Section 13 (1) of the Act starts with the following words:
'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 the landlord against a tenant except on one or more of the following grounds.,.......'
There are several grounds for which the landlord may evict the tenant. As the Act was not in force when the suit was filed, the landlord wanted to evict the tenant under the provision of the Transfer of Property Act. Both the trial court and the first appellate court below dealt with the case as one under the Transfer of Property Act. According to the clear language of Section 13 (1) stated above, there can be no doubt whatsoever that in spite of any other Jaw being in force, no Court can pass any order or decree of recovery of possession of the suit premises evicting a tenant except on one or more of the grounds mentioned in sub-section (1) of Section 13. If the Act is applicable at the time when the Court is to pass necessary order or decree in the suit, the duty of the Court would be to see whether any ground mentioned in Sub-section (1) of Section 13 has been proved by the landlord for the eviction of the tenant and if there is no such ground, the Court shall not pass any order for eviction of the tenant. I have no doubt to hold that in view of the introduction or extension of of this Act, the Court even in pending oases is to see whether any order or decree for recovery of possession can be passed according to the provision of the Act It does not matter whether the suit was originally filed under a different statute. There is no dispute that the suit premises, a house comes under the purview of the definition of 'premises' under the Act. The submission of Mr. Banerjee is that the appellate court below ought to have set aside the decree for recovery of possession passed by the trial court when the Act had already come into force in the locality and even if it was overlooked by the appellate court below, it is the duty of the Court in the second appeal to set aside the decree so that the landlord cannot get any decree for recovery of possession according to the provision of the Act.
12. Mr. Ghosh, however, took his stand on one objection to the submission of Mr. Banerjee. His argument is that the decision in the case of S.B.K. Oil Mills v. Subhas Chandra reported in : 2SCR159 is not applicable because the definition of the word 'tenant' under the West Bengal Act is quite different from that under the Bombay Act. Mr. Ghosh says that according to the definition of 'tenant' in the West Bengal Act, a person shall not be a tenant against whom any decree or order for eviction has been made by a Court of competent jurisdiction. There is no doubt that in the Bombay Act a person suffering any decree or order for eviction has not been described as a tenant. In the present case the trial court passed a decree for recovery of possession in favour of the landlord against the tenant. While the appeal preferred by the tenant was pending before the first appellate Court, the Act came into force to be applicable to the locality. Mr. Ghosh contends that when the Act became applicable, a decree for eviction had already been passed against the tenant and, therefore, the appellant cannot be described as tenant when the appeal was pending. Reading the definition of 'tenant' given in Section 2 (h) of the Act, we get that a person against whom any decree or order for eviction has been made by a Court of competent jurisdiction is not described as a tenant. In the instant case after the passing of the decree, the tenant filed an appeal against the decree and the appeal was pending before the court for adjudication. Now, as soon as the decree is appealed against, it cannot be stated to be a decree which is final, because with the filing of the appeal, the matter is re-opened and the appeal is meant for re-hearing of the dispute. The decree for eviction referred to in the definition clause for 'tenant' is meant to be final decree passed by a Court of competent jurisdiction. It does not and cannot imply, in my view, a decree under appeal. If there is an appeal against any decree and if the decision of the appellate court is to affirm the decree of the trial court, we get a decree of the appellate court and the trial court decree merges in the appellate court decree. Again if the appellate court sets aside the decree of the trial court, we also gel the decree of the appellate court nullifying the decree of the original court. When the appeal was filed by the tenant against the decree of the trial court and it was pending before the appellate court below, it was the duty of the court below to see whether any decree could be passed for recovery of possession as against the tenant according to the provision of the Act then extended to the suit premises. It cannot, therefore, be said that the tenant who preferred an appeal before the first appellate court or who has filed the present appeal is not a tenant under the Act. In fact, the decree of the lower court, comes under consideration before the higher appellate court and it cannot be stated that any such decree has been finally passed by any Court of competent jurisdiction. The decree mentioned in the definition clause is a final and different decree other than the decree challenged in the pending appeal. The appellant can certainly claim to be a tenant as defined under the Act to get the benefit of Section 13 (1) of the Act. In this connection, we may refer to the judgment of Varadachariar, J. already quoted above in connection with Lachmeshwar Prasad Shukul v. Keswarlal Chowdhury (AIR 1941 FC 5) where it has been clearly stated that an appeal is in the nature of a re-hearing of the case. In the case of Gojer Brother (P.) Ltd. v. Ratanlal Singh reported in : 1SCR394 , the Supreme Court has held the following:
'In cases where the decree of the trial court is carried in appeal and the appellate court disposes of the appeal after a contested hearing the decree to be executed is the decree of the appellate court and not of the trial court. In Jowad Hussain v. Gendan Singh, 53 Ind App 197 = (AIR 1926 PC 93) the Privy Council while holding that the limitation of three years within which an application for a final decree must be made runs from the date of the decree of the appellate court, quoted with approval the statement of law contained in the judgment of a learn-el Judge of the Allahabad High Court to the following effect: 'when an appeal has been preferred, it is the decree of the Appellate Court which is the final decree in the cause'. Per Banerji, J. in Gajadhar Singh v. Kishan Jiwan Lal, ILR 39 All 641 = (AIR 1917 All 163) (SB). The Privy Council also adopted the statement contained in a judgment of Tudball, J., to this effect: 'when the Munsif passed the decree it was open to the plaintiff or the defendant to accept that decree or to appeal. If an appeal is preferred, the final decree is the decree of the Appellate Court of final jurisdiction. When that decree is passed, it is that decree and only that which can be made final in the cause between the parties.' Thus, when the decree of the Court of first instance is confirmed by the High Court and the latter decree is confirmed by the Privy Council the decree capable of execution is the decree of the Privy Council.'
13. Then again we have got the decision of our High Court in the case of Gobind Chunder Roy v. Guru Charan of the year 1887 reported in (1888) ILR 15 Cal 94. This is a Division Bench decision. The relevant portion of the judgment is quoted below:
'The proceedings in the Appellate Court were but a continuation of the proceedings in the suit, and although for a time there was a decree in favour of the present plaintiff's predecessor in title, yet that was a decree which was open to appeal, and the decree having been appealed against, we ought to take it that the decree of the Appellate Court was the decree in the suit.........'
14. In view of my discussions made above, I am of the view that although a decree has been passed by the trial Court, the appellant can still be regarded as a tenant as denned under Section 2 (h) of the Act to get relief in this case, because no final decree, unchallenged in any court has been passed against him. The decree in question is under consideration and the Court is entitled to see whether the defendant-tenant can get any relief under the Act in the appeal under consideration. Mr. Ghosh relied upon a Division Bench decision of this Court in the case of Madho Prosad v. Gangaram reported in ILR (1968) 2 Cal 183. In that case the suit for ejectment was filed under the Transfer of Property Act. During the pendency of the trial, West Bengal Premises Tenancy Act was extended to that area. The suit was decreed by the trial Court. The Subordinate Judge in the first appeal dismissed the appeal preferred by the defendant. There the Division Bench held that the special statute namely, the West Bengal Premises Tenancy Act would not govern that pending suit. Going through the judgment I do not find any reference to any decision of the Privy Council, the Supreme Court or the Federal Court on the point as has been placed before me. There the case of V.R. Verma v. Mohan Kumar Mukherjee reported in : AIR1962Cal563 (SB) was mentioned. This was the Special Bench decision in connexion with the notices under Section 106 of the Transfer of Property Act and under Section 13 of the West Bengal Act 12 of 1956. However. in view of the decisions of the Supreme Court, Federal Court and the Privy Council discussed in this judgment, those two decisions referred to by Mr. Ghosh do not appear to be applicable in the case before me. Mr. Ghosh's contention, however, is that the appellant against whom there is the decree of the trial court cannot be described as a tenant under the Act and, therefore, he cannot get any relief. He does not, however, challenge the decisions of the Supreme Court, Federal Court or the Privy Council relied upon by Mr. Banerjee and, of course, he cannot. But, his only point seriously urged is the distinction appearing In the definition of 'tenant' in the Acts of West Bengal and Bombay. I cannot accept the contention of Mr. Ghosh as put forward before this Court regarding the definition of tenant applicable in the present case. I have, therefore, no hesitation to hold that the appellate court below ought to have set aside the decree passed by the trial court and dismissed the suit on the ground that for want of evidence and materials, no case could be proved for eviction of the defendant under the provision of the Act extended to the suit property during the pendency of the first appeal.
15. I was just thinking whether the matter should be sent back to the trial court giving an opportunity to the plaintiff to adduce evidence regarding the grounds for eviction pleaded, but I find that no useful purpose would be served because according to the provision of the Act the plaintiff is required to serve one month's notice under Section 13 (6) of the Act, but in the present case there was the notice for eviction giving time less than a month though more than 15 days. Mr. Ghosh at the very outset wanted to show that the provisions of the Act were complied with, but when the requirement of notice was not fulfilled by the plaintiff, Mr. Ghosh challenged the propriety of this Court to give any relief to the tenant as a decree had already been passed by the trial court. There can be no question of sending back of the case for reconsideration.
16. No other point of law has been raised. I find that the appellate court below ought to have set aside the decree of the trial court and dismissed the suit after the extension of the Act to the local area.
17. In the result, the appeal is allowed. The judgments and the decrees of the courts below are hereby set aside and the suit stands dismissed. In the-facts and circumstances, however, the parties will bear their own costs throughout.
18. There was an application dated 27-11-75 for taking additional evidence under Order 41, Rule 27, C.P.C. In view of the decision of this appeal, the application requires no order.
19. It is prayed on behalf of the respondents that leave may be granted for preferring Letters Patent Appeal. The prayer is refused.