When a change in law occurs during the pendency of an appeal, the appellate court is bound to take into account the change of law and to extend its benefit to the parties.

Mookerjee, J. : The Revisional application is by the tenant-defendants and it is directed against the order of the learned Munsif's Second Court, Barasat rejecting their application under sub-s. (2), (2A) and (2B) of S. 17 of the West Bengal Premises Tenancy Act, 1956 on the ground that the same was not maintainable because the eviction suit brought by the plaintiff opposite parties were still governed by the provisions of Transfer of Property Act, 1882 even after the area in which the suit premises was situated was incorporated within the limits of newly formed Habra Municipality.

2. On March 12, 1979 the plaintiff opposite parties had instituted the aforesaid suit for eviction of the defendants opposite parties on the said date. The suit premises was not included within the limits of any municipality. On August 29, 1979 the State Government by a Notification made under S. 8 of the Bengal Municipal Act, 1982 constituted Habra Municipality and the area in which the suit premises was situated came to be within the limits of the said newly constituted Municipality.

3. The question involved in the present case has been already settled by the recent decision of the Supreme Court in Lakshmi Narayan Guin & Ors. v. Niranjan Modak, AIR 1985 SC 111, which had affirmed and upheld the decision of the Hon’ble Mr. Justice R. Bhattacharyya in Niranjan Modak v. Lakshmi Narayan Guin, AIR 1976 Cal. 322. Presumably, before the learned Judges of the Supreme Court who decided Lakshmi Narayan Guin v. Niranjan Modak (supra), it was not pointed out that the view taken by R. Bhattachryya, J. in Niranjan Modak v. Lakshmi Narayan Guin (supra) had been already overruled by the Division bench consisting of Hon'ble Mr. Justice Salil Kumar Dutta and Hon'ble Mr. Justice G. N. Roy in Aswini Kumar Chatterjee v. Sukhendu Nath Guin, AIR 1977 Cal. 243. The said Divisioin Bench substantially had upheld the view taken by me in the case of Gurdial Singh v. Animesh Chandra Roy Gupta, 1976 Calcutta High Court Notes 301. The Division Bench of the Calcutta High Court and also myself in the said two reported cases had, inter alia, held that the provisions of the West Bengal Premises Tenancy Act, 1956 would have no application to proceedings in respect of a suit for recovery of possession situate in an area to which the said Act was extended while the suit was pending. Even if the Division Bench decision in Aswini Kumar Chatterjee v. Sukhendu Nath Guin (supra) was not noticed by the Supreme Court in Lakshmi Narayan Guin v. Niranjan Modak (supra) we are bound by the said Supreme Court decision which inter alia laid down that when a decree for eviction is passed by the trial court against a tenant under the provisions of Transfer of Property Act and the Act giving protection to tenants against eviction is extended to the concerned area during the pendency of appeal against the decree for eviction the appellate court is bound to take into account the change of law and to extend its benefit to a tenant. The Supreme Court was of the view that the change in law during the pendency of the appeal is to be taken into account and the amended law will govern the rights of the parties.

4. In the above view we propose to set aside the trial court's order rejecting the defendant tenant's application under the said sub-s. (2) of S. 17 of the West Bengal Premises Tenancy Act because the trial court had applied the ratio of the decision in the case of Gurdial Singh (supra) which can no longer be considered as good after the Supreme Court decision in the case Lakshmi Narayan Guin & Others v Niranjan Modak reported in AIR 1985 SC 111. We dispose of the application in the following terms:

5. We set aside the trial court's order rejecting the defendant tenant's application under sub-ss. (2), (2A) and (2B) of S. 17 of the West Bengal Premises Tenancy Act. The laid application is restored. Since the suit was instituted before the establishment of Habra Municipality in the area we give two