Judgment

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-see. (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 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. S. 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 landlords 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 the 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 months notice expiring with A month of tenancy." There is no dispute that the grounds mentioned in, Cls. (j) and (k) do not come into play in the instant ease. 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-s. (6) of S. 1