The proviso to Section 3(2) of the West Bengal Premises Tenancy Act, 1956, which exempts certain long leases from the Rent Laws, is applicable only if the lease expresses itself to be terminable before its expiration at the option either of the landlord or of the tenant.

( 1 ) THIS is an appeal by the erstwhile tenant from a decree of eviction. The premises in suit is a single shop room on Girish Avenue, calcutta.

( 2 ) IT was held under a lease for 21 years covering 1. 11. 1965 to 31. 10. 1986.

( 3 ) THE suit for eviction was filed in 1987 after the term expired.

( 4 ) ALTHOUGH 16 years have expired since, the landlord is still fighting the litigation.

( 5 ) IN the impugned judgment there is nothing which needs any correction by us. None of the points urged in the Court below was given touched upon by the appellant before us.

( 6 ) THE appellant went on a completely different track.

( 7 ) IT was argued that the West Bengal Rent Laws controlling the lease did not apply to leases for durations above 20 years. But if the lease contained provisions allowing either the landlord or the tenant to terminate it at his option before the expiry of the terms, then the Rent Laws would apply.

( 8 ) FOR showing this the proviso the Section 3 sub-section (2) of the west Bengal Premises Tenancy Act, 1956 was relied upon. The said proviso is set out below ; section 3. (1 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . (a ). . . . . . . . . . . . . . . . . . . . :. . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . Sub-section (2) Notwithstanding anything to the contrary contained in sub-section (1) but subject to sub-section (3) of Section 1, this Act shall apply to all premises held under a lease which has been entered into after the commencement of the West Bengal premises Tenancy (Amendment) Ordinance, 1956: provided that if any such lease is for a period of not less than 20 years and the period limited by such lease is not expressed to be terminable before its expiration at the option either of the landlord or of the tenant, nothing in this Act, other than the provisions relating to rent and the provisions of Sections 31 and 36, shall apply to any premises held under such lease.

( 9 ) THE said Act has also been repealed and a new Act of 1997 has come into force. The matter is very old. The rent of the room was only rs. 80/- per month with a provision of annual increase at the rate of rs. 6/ -.

( 10 ) IT might be felt that so many years after the expiry of the fixed written term, the landlord deserves in justice to get back the room. Even if he cannot, as he is dead, at least his daughter should get it.

( 11 ) HOWEVER, the point of law has been urged in all earnest.

( 12 ) HIGH authorities were relied upon to show that a new point can be urged in appeal provided two conditions are satisfied : (i) The urging of the point does not require any new proof of materials and the admitted documents and facts, or evidence already given and accepted are enough for urging the point of law. (ii) If the point is successful no two views are possible and the appeal must succeed.

( 13 ) THE case of Ram Kissen is relied upon; it is a decision given by sir Asutosh when His Lordship adorning a Bench of this Court. The case is reported at AIR 1920 Cal 239. The case of Gurucharan Singh reported at air 1977 SC 5 was also relied upon. There is a reference in that case to the decision given in the case is given Connecticut Fire, reported at 1892 ac 473. A quotation of Lord Watson is also extracted with approval by the supreme Court.

( 14 ) IN our respectful opinion the authorities basically state the above two points ; it is also emphasized that Justice according to law requires that the new point be considered by the Court if the above two conditions are satisfied and be not simply brushed aside.

( 15 ) SINCE the applicability of the Rent Laws would prevent the passing of a decree of eviction, and since the admitted lease is the only document required for urging that point, we are bound by authorities to deal with the new point even at this stage.

( 16 ) IN support of the proposition that if the proviso applies then the lease is no better than an ordinary short lease covered by