Holding

The appellate decree is the "decree" contemplated by Section 13(1); the Act applies to pending appeals, and because the landlord did not give the required notice, the suit is incompetent.

Summary

The appellants, landlords, obtained a trial decree for possession of a house in Memari, West Bengal, on grounds of rent arrears and need for demolition. The respondent appealed, and while the appeal was pending the West Bengal Premises Tenancy Act, 1956 was extended to Memari, introducing Section 13 which bars possession orders except on specific grounds and requires a one‑month notice. The High Court held that the Act applied to the pending appeal, set aside the trial decree and dismissed the suit for non‑compliance with the notice requirement. The Supreme Court examined whether "decree" in s.13(1) meant the trial decree or the appellate decree and whether a change in law during appeal binds the appellate court. It held that the term refers to the final (appellate) decree, that the Act governs pending appeals, and that the landlord’s failure to give the statutory notice rendered the suit incompetent. Consequently, the appeal was dismissed with costs.

Issues considered

The meaning of "decree" in Section 13(1) of the West Bengal Premises Tenancy Act – whether it refers to the trial court decree or the appellate decree.
Whether a statutory provision extended during the pendency of an appeal binds the appellate court and can be invoked by the tenant.
Whether the Act can be applied retrospectively to suits instituted before its extension to the area.
Whether the landlord complied with the one‑month notice requirement under Section 13(6).

Legislation cited

Assam Non-Agricultural Urban Areas Tenancy Act, 1955s. 5(a)
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947s. 12(1)
Transfer of Property Act
West Bengal Premises Tenancy Act, 1956s. 13(1), s. 13(6)

Subjects

evictionpremises tenancy actchange of lawappellate jurisdictionnotice requirementretrospective applicationlandlord‑tenantdecree

Judgment

LAKSI-(MINARAYAN GUIN & ORS.
r.
B 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 offirst 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,

D 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
E 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
F 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
G 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,

H HELD : (I) It is well settled that when a trial court decrees a suit and the
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 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 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
B
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
c
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 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 the requirement of sub·s.6 of s.13 the suit
was incompetent. [206D ; B ; E ; 207E ; 205 F]

Shah Bhojraj 'f(uverji Oil Mills and Ginning Factory v. Subhash Chandra
Yograj Sinha (1962] 2 S.C.R.159. Mst. Rajiquennessa v. Lal Bahadur Cheetri E
(1964] 6 S.C.R. 876, Ram Sarup v. Munshi and Others etc. [1963] 3 S.C.R. 858
Mu/a and two others v. Godhu and Others [1970] 2 S C.R. 129 & Amarjit Kaur v.
Pritam Sinl!h and Others [1975] I S.CR., followed.

Dayawati and Another v. lnderjit and Others (1966] 3 S.C.R. 275,
Kristnhma Chariar v. Mangammal & Lachmeshwar Prasad Shukul v. Keshwar F
La/ Chaudauri [1940] F.C.R. 84 referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 439 of 1977.

Appeal by Special leave from the Judgment and Order dated
the 28th January, 197ii of the Calcutta High Court in Appeal from G
I Appellate Decree No. 1195 of 1970.

Pankaj Kalra, D. N. Mukherjee and Rathin Das for the
Appellant.

Shankar Ghose and G.S. Chatterjee for the Respondent. H
204 SUPREME COURT REPORTS (1985] 2S.C.R,

The Judgment of the Court was delivered. by
A
PATHAK, J. ·fhis 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.

B The appellants are the owners of house property situate in
Manza Memari in the district of Burdwan in West Bengal. The
respondent is the tenant of some rooms in the said property on a
monthly rental of Rs. 100. The appellants filed a suit, out of
which the present appeal arises, claimiqg that the respondent was in
arrears of rent which he refused to pay despite demand and that the
accommodation was required for demolition to enable the appellants
to construct separate houses for their own business.
c
The suit was resisted by the respondent who alleged that he
had been Jet in by one Sishubala Bisayee, that the appellants had
no title to the property and had fraudulently secured some docu-
ments from her which-had given rise to a suit which was pending.
D
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
E 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 Memarr·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.

G Sub-s. (I) of s. 13 of the West Bengal Premises Tenancy Act
as extended to Merna ri during the pend ency 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 sbaJI be made by any Court in favour of
H
L.N. GUIN v. NIRANJAN MODAK: (Pathak, J.) 205
the landlord against a tenant except on one or more of the
A
grounds ...... "

and thell 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 respondoot in the instant case. The appellants
contended that it could not be invoked in a case where the trial
B
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
~
.I same point arises before us. Upon the consideratiens which follow,
we think that the High Court is rii:ht in upholding the contention
of the respondent, and that this appeal must faill •. c
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 evic- D
tion inasmuch 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 proceedini: for the recovery of possession on any of grounds
mentioned in sub-s. (I), except the grounds mentioned in clanses
(j) and (k), can be filed by the landlord "unless he has given to the E
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 se~ved 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 F
suit was incompetent.

As has beeu stated earlier, sub-s. (I) 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 G
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
whe!I a trial co\)rt decrees a suit and the decree is challenged by a H
206 SUPREME COURT REPORTS [1985) 2 s.c.R.

A 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 whicn rules.
The object of sub-s. (l) of s. 13 is to protect the possession of the
tenant, subject, to the exceptions specified in the sub-section, and
B 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.
c
The next point is whether sub-s. (I) 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 the court not to make
any order or decree for possession subject, of course, to the statutory
D 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 mstituted 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.
E The language of the sub-section makes that abundantly clear, and
regard must be had to its object. In Shah Bhojraj Kuverj1 Oil Mills
and Ginning Factory v. Subhash Chandra Yograj Sinha(') a Bench of
five Judges of this Court had occasion to consider sub-s.(1) of s.12
of the Bombay Rents, Hotel'.and Lodging House Rates Control Act,
1947. Sub-s. (I) of s. 12 provided :
F
"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 ......... ".

G On the question whether the prov1S1on applied to pending suits
for possession, the learned Judges drew attention to the point of
time specifically mentioned in the sub-section. It operated, they
said, "when the decree for recovery of possession will have to be
passed" and did not refer back to the institution of the suit. By a

H (1) [1982) 2 S.C.j\. jS9,
L.N. GUIN v. NIRANJAN MOD,AK (Pathak, J.) 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,agflinst decrees already made. But any doubt on the
point must be considered to have been finally removed by this
Court when in Mst. Rafiquennessa v. Lal Bahadur Cheetri<1) another
Bench of five Judges, which included J. C. Shah 1. who was a
B
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 stage. The learned Judges relied on the
principle that an appeal was a continuation of the suit and that c
the appeal would be governed by the newly enacted clause (a) of
sub·s. (!) 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 D
laid down by this Court in Ram Sarup v. Munshi and Others etc.('),
which was followfd by this Court in Mula and Others v. Godhu and
Others.(') We may point out that in Dayawati and Another v.
lnderjit and Others(') this Court observed :-

"If the new law speaks in language, which expressly E
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
F
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

. 4 -i (I) [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.
ff
•
''

20& SUPREME COURT REPORTS (1985] 2 S.C.R,
Mangamma/( 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 Amar;it Kaur (supra) this Court referred also
to Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri(') 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,
B
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.
(
c The appeal is dismissed with costs.

M.L.A Appeal dismissed.
D

. ;.
•

(I) !LR 1902 26 Mad 91 (FB).
81,
(2) ~1940) F.C.R,.