Judgment

K RAMASWAMY, J.- The appellants had leave under Article 136 to appeal against the judgment and decree of the High Court of Rajasthan at Jaipur Bench in Second Appeal No. 240 of 1978 dated July 5, 1985 reversing the decrees of the courts below and decreeing the suit for ejectment of the appellants from the demised shop in Jaipur. The facts lie in a short compass: that Smt Anandi, wife of appellant 1 and the mother of appellant 2, Nand Kishore had lease of the demised premises for 11 months from May 1, 1964 on payment of monthly rent of Rs 18 which expired on March 31, 1965. The respondent landlord terminated the lease by a notice under Section 106 of Transfer of Property Act but she remained in possession and enjoyment of the shop carrying on small kirana business. She died in September 1966. The demised premises are governed by the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act 26 of 1950 for short the Act). Section 13(1) thereof, postulates that "notwithstanding anything contained in any law or a contract, no court shall pass any decree or make any order in favour of the landlord, whether in execution of a decree or otherwise evicting the tenant so long as he is ready and willing to pay rent thereof to the full extent allowable by the Act" unless the landlord proves to the satisfaction of the court any one of the grounds enumerated in clauses (a) to (k) thereof. The action for ejectment was initiated by the respondent on the premise that on the death of the tenant, the appellants have no right to continue in occupation of the demised premises. The findings recorded by all the courts are that Smt Anandi was the tenant. The appellants during her lifetime, had not carried on the business with her till date of her death. The trial court dismissed the suit on the ground that Smt Anandi paid and the respondent accepted the rent after determination of the lease. So she was a tenant holding over. During the pendency, of the appeal, the Act was amended through Rajasthan Premises (Control of Rent and Eviction) Ordinance 26 of 1975 which was replaced by Act 14 of 1976 (for short the Amendment Act). Therein the definition of Tenant was amended by Section 3(ii) of the Amendment Act introducing to Section 3 clause (vii), thus:

"3.(vii) "tenant" means -

(a) the person by whom or on whose account or behalf rent is, or, but for a contract express or implied, would be payable for any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act; and

(b) in the event of death of the person as is referred to in sub-clause (a), his surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him who had been, in the case of premises leased out for residential purposes, ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily carrying on business with him in such premises as member of his family up to his death."

2. Consequently, the appellants amended the written statement adding therein paragraphs 16 and 17 contending that they have been jointly carrying on the business in the demised premises along with Smt Anandi and, therefore, they are entitled to the continuance of the tenancy. The amendment was allowed by the appellate court and it called for a finding from the trial court in that regard. After giving an opportunity to both the parties to adduce evidence afresh the court recorded the finding in the negative. On its receipt and consideration thereof the appellate court affirmed the finding but confirmed the decree of the trial court on other grounds. The High Court held that as the appellants had. not carried on the business with the tenant during her lifetime as family business they were not entitled the benefit of the amended definition of the tenant. Accordingly decreed the suit.

3. The contention