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Lakshmi Narayan Guin And Others v. Niranjan Modak .
Factual and Procedural Background
The appellants (plaintiffs) own a house property in Mauza Memari, District Burdwan, West Bengal. The respondent has been occupying certain rooms in that property at a monthly rent of Rs 100. Alleging non-payment of rent and an intention to demolish the structure for constructing separate business houses, the appellants instituted a suit on 12 June 1967 for ejectment and arrears of rent.
The trial court decreed the suit on 17 February 1969, recognizing the respondent as the appellants’ tenant and granting possession and arrears. The respondent’s first appeal was dismissed. During the pendency of that appeal, the State Government extended the West Bengal Premises Tenancy Act, 1956 (“the Act”) to Memari. In a second appeal, the Calcutta High Court (28 January 1976) applied the newly extended Act and dismissed the suit. The present appeal by special leave challenges that High Court decree.
Legal Issues Presented
- Whether Section 13(1) of the West Bengal Premises Tenancy Act, 1956, extended to Memari after the trial decree, could be invoked by the tenant during the pendency of an appeal so as to bar a decree for possession.
- Whether a landlord’s suit instituted before the Act’s extension becomes incompetent for want of a statutory one-month notice under Section 13(6) when the notice actually served was for a shorter period.
Arguments of the Parties
Appellants' Arguments
- The Act could not be applied because the trial court had already decreed eviction under the Transfer of Property Act before the Act was extended to Memari.
- Consequently, the appellate courts were not required to consider the Act’s provisions.
Respondent's Arguments
- An appeal is a continuation of the suit; therefore, the appellate court must apply the law as it exists at the time of its decision.
- The appellants failed to serve the statutory one-month notice mandated by Section 13(6); hence the suit was incompetent.
- The premises were neither old nor in need of demolition, and no rent arrears were due.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Shah Bhojraj Kuverji Oil Mills & Ginning Factory v. Subhash Chandra Yograj Sinha, AIR 1961 SC 1596 | Section 12(1) of Bombay Rent Act applies to pending suits; focus on decree-passing stage, not institution. | Used to show that tenant-protective statutes can apply even after suit filing but before final decree. |
| Rafiquennessa v. Lal Bahadur Chetri, AIR 1964 SC 1511 | Tenant-protective clause applies at appellate stage; appeal is continuation of suit. | Supported the view that Section 13(1) can be invoked during appeal. |
| Ram Swrup v. Munshi, AIR 1963 SC 553 | Rights of parties on appeal are governed by the law as it stands at the time of decision. | Reinforced need to apply the Act because it came into force before appellate decision. |
| Mula v. Godhu, (1969) 2 SCC 653 | Followed Ram Swrup principle on change of law during appeal. | Cited to affirm appellate obligation to apply new statute. |
| Dayawati v. Inderjit, AIR 1966 SC 1423 | Court of appeal must give effect to new law expressly intended to cover pending matters. | Relied on for textual-intent analysis of Section 13. |
| Amarjit Kaur v. Pritam Singh, (1974) 2 SCC 363 | Hearing of appeal is a re-hearing; court must apply law in force at that time. | Cited to substantiate merger doctrine and appellate jurisdiction. |
| Kristnama Chariar v. Mangammal, ILR (1902) 26 Mad 91 (FB) | Concept that an appeal is a re-hearing of the suit. | Provided historic support for continuation theory. |
| Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, AIR 1941 FC 5 | Upon appeal, case becomes sub judice; appellate court gains full seisin. | Used to underline merger of trial decree into appellate decree. |
Court's Reasoning and Analysis
1. Effect of Section 13(1): The Court interpreted Section 13(1) as prohibiting any “order or decree” for possession against a tenant except on specified grounds. The term “decree” was held to refer to the operative, final decree — i.e., the appellate decree once an appeal is preferred.
2. Appeal as Continuation of Suit: Relying on multiple authorities, the Court reiterated that an appeal is a continuation of the suit; accordingly, the trial decree merges into the appellate decree. Therefore, statutory protections available at the appellate stage must be given effect.
3. Retrospective Applicability: Although the suit pre-dated the Act’s extension, the legislative command of Section 13(1) divested courts of unqualified jurisdiction to order eviction once the Act came into force. Precedents such as Shah Bhojraj, Rafiquennessa, and Ram Swrup were invoked to uphold retrospective application to pending appeals.
4. Non-Compliance with Section 13(6): The Court noted the High Court’s factual finding that the appellants’ eviction notice was for less than one month, contravening Section 13(6). Because none of the exceptions (clauses (j) & (k)) applied, the suit was incompetent.
5. Conclusion on Merits: Given the statutory bar and defective notice, the Court affirmed the High Court’s dismissal of the suit, holding that the tenant was entitled to the Act’s protection.
Holding and Implications
APPEAL DISMISSED WITH COSTS.
Implications: The judgment confirms that tenant-protective statutes applied mid-litigation govern not only pending suits but also appeals, emphasizing the merger doctrine and the appellate court’s duty to apply current law. While the ruling directly affects the parties by preserving the respondent’s tenancy and dismissing the appellants’ ejectment claim, it does not create new precedent but reinforces established principles on retrospective application of legislation and continuation of suits on appeal.
R.S 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.
2. The appellants are the owners 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 rental of Rs 100. The appellants filed a suit, out of which the present appeal arises, claiming 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.
3. 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.
4. 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.
5. Sub-section (1) of Section 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 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 fail.
6. The suit was filed on June 12, 1967, 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. Section 13 of the Act provides for a qualified protection of the tenant against eviction 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-section (1) thereof. 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”. 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 found 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-section (6) of Section 13. Consequently, it held that the suit was incompetent.
7. As has been stated earlier, sub-section (1) 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 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 competent 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-section (1) of Section 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-section (1) of Section 13 of the Act can be invoked by a tenant during the pendency of an appeal against a trial court decree.
8. The next point is whether sub-section (1) of Section 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-section (1) of Section 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 Mills and Ginning Factory v. Subhash Chandra Yograj Sinha AIR 1961 SC 1596, (1962) 2 SCR 159, (1962) 1 SCJ 377 a Bench of five Judges of this Court had occasion to consider sub-section (1) of Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Sub-section (1) of Section 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. 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 unanimous judgment the learned Judges held that the sub-section applied to pending suits. In passing, it may be noted that the 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 Rafiquennessa v. Lal Bahadur Chetri AIR 1964 SC 1511, (1964) 6 SCR 876, (1964) 2 SCJ 562 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-section (1) of the 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 the appeal would be governed by the newly enacted clause (a) of sub-section (1) of Section 5 even though the trial court decree had been passed earlier.
9. 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 Swrup v. Munshi AIR 1963 SC 553, (1963) 3 SCR 858 which was followed by this Court in Mula v. Godhu (1969) 2 SCC 653, AIR 1971 SC 89, (1970) 2 SCR 129. We may point out that in Dayawati v. Inderjit AIR 1966 SC 1423, (1966) 3 SCR 275, (1966) 2 SCJ 784 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 (1974) 2 SCC 363, AIR 1974 SC 2068, (1975) 1 SCR 605 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. Mangammal ILR (1902) 26 Mad 91 (FB) by Bhashyam Ayyangar, J., that the hearing of an appeal was, under the processual law of this country, in the nature of a re-hearing of the suit. In Amarjit Kaur (1974) 2 SCC 363, AIR 1974 SC 2068, (1975) 1 SCR 605 this Court referred also to Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri AIR 1941 FC 5, 1940 FCR 84 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.
10. It is apparent that this appeal cannot succeed.
11. The appeal is dismissed with costs.
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