The West Bengal Premises Tenancy Act, 1956 does not apply to pending proceedings, including suits for recovery of possession of premises, when the Act is extended to a new area during the pendency of the suit.

( 1 ) THIS Rule has been referred to a Division Bench by Janah, J. in view of the conflict of decisions of the two single Benches of this court on the point as to the applicability of the West Bengal Premises Tenancy Act, 1956 to a pending proceeding. Under Sub-section (3) of Section 1 of the said Act, the Act extends to the whole of Calcutta and to all areas which have been or may hereafter be constituted municipalities under the provisions of the Bengal Municipal Act, 1932. It is also further provided that the State Government may extend the operation of the Act to any other area by Notification. By Notification dated July 23. 1975 published in the Calcutta Gazette (Extraordinary) on July 24, 1975 the town of Dubra. ipur was declared as muni-cipa] area. In consequence, under the provisions of the said Act referred to above, the operation of the Act extended to the said town constituted as municipality as aforesaid.

( 2 ) THE petitioner instituted a suit on January 16, 1'975 for recovery of possession as also arrears of rents and damages in respect of a premises held by the defendant as a monthly tenant at a monthly rent of Rs. 31/- according to Bengali calendar month. The tenancy was determined by notice calling upon the defendant to vacate the suit premises with the expiry of the month of Agrahayan 1381 B, S. When this suit was instituted, the provisions of the said Act had no operation in respect of the town of Dubralpur in which the suit premises are situate. As the suit was pending, the provisions of the said Act became applicable to the town of Dubrajpur on its declaration as municipality as aforesaid.

( 3 ) THE defendant in course of proceeding filed an application stating that in view of the area being declared as the municipal area, the suit was to be governed under the provision of the West Bengal Premises Tenancy Act instead of the T. P. Act. This application was rejected by the learned Munsif on the view that the West Bengal Premises Tenancy Act would not apply to pending cases. When the Rule challenging the aforesaid order came up for hearing before Janah, J. it was noted in the order that in case of Niranjan Modak v. Lakshminarayan Guin, R. Bhattacharya, J. was of opinion that Section 13 of the West Bengal Premises Tenancy Act would retrospectively apply'to such suits. A contrary view was taken by Chittatosh Mooker-jee, J. in Gurdial Singh v. Animesh Ch. Roy Gupta, reported in (1976) 3 Cal HC (N.) 301. The Rule in the circumstances has come up before us on reference by Janah, J.

( 4 ) IT is well settled that the court will take into consideration even in appeal a change of law or facts that may have taken place during the pendency of the proceeding. Bhattacharya, J. has referred to several decisions of the Supreme Court in support of the above proposition. As was observed in Lachmes-hwar Prasad Shukul v. Keshwar Lal Chowdhury, reported in AIR 1941 FC 5, it was held that the court is bound to consider ,any change either on fact or in law, which has supervened since the judgment was entered as was the position in that case. Bhattacharya, J. strongly relied on the decision in S. B. K. Oil Mills v. Subhas Chandra, where the Supreme Court was considering the provisions of Section 12 of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 which becomes applicable on its extension to particular area by notification. In this case the suit by the landlord for possession was filed on April 25, 1957 and while the suit was pending by notification of August 16, 1958. Part II of the said Act which included Section 12 was extended to the area where the premises are situated. The tenant lost in the trial court as it was held that the Act was prospective which the Supreme Court considered erroneous. It was observed :--"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 exce