JUDGMENT Seth, J.
1. Both these appeals arise out of the same suit which was instituted on 15th December 1943, by Mst. Ram Kali Devi against the appellant, Pandit Niranjan Lal Bhargava, for his ejectment from a building, known as "Sahu Palace". The aforesaid premises were let on 1st November 1989 by the plaintiff to the defendant for a period of four years, expiring on 31st October 1943. The plaintiff sought to eject the defendant on three grounds, namely, (1) that the term of the lease had expired, (2) that the defendant was causing injury to the building, and (3) that a sum of Rs. 100 had remained due as arrears of rent.
2. The defendant pleaded, in defence, that certain orders passed under the Defence of India Rules prevented the plaintiff from ejecting him. He denied that he was causing any injury to the building or that any arrears of rent were outstanding against him.
3. The Munsif gave a conditional decree in the suit to the plaintiff. By that decree the defendant was ordered to be ejected from the premises, but it was provided that the decree would remain in suspense till such time as the order passed under the Defence of India Rules remained in force.
4. Aggrieved by this decision, the plaintiff appealed to the lower appellate Court. The lower appellate Court, following a decision of this Court in Makhan Lal v. Shankar Lal, 1945 A. W. R. (H. C.) 29, held that the Munsif should not have passed a conditional decree, but that the matter, whether the defendant could be actually ejected in execution of the decree, should be considered at the time when the application for execution was made. The learned Judge found, that no arrears of rent were due, and that the plaintiff had failed to prove that the defendant had caused any damage to the premises, and granted an unconditional decree for the ejectment of the defendant. A decree for mesne profits was also granted at the rate of Rs. 385 per month. The defendant has come up in second appeal to this Court against this decree of the lower appellate Court.
5. The decree of the lower appellate Court was attacked on numerous grounds in the memorandum of appeal. It has, however, been pressed before us principally on the ground that by reason of the provisions of Section 15, United Provinces (Temporary) Control of Rent and Eviction Act (III [3] of 1947) the plaintiff is not entitled to get a decree for the ejectment of the defendant. The Act came into force after the appeal had been decided by the lower appellate Court and while the present appeal was pending. The first question for consideration, therefore, is, whether Section 15 can be relied on by the appellant in order to get a decree set aside, which was according to law on the date when it was passed.
6. So far as this point is concerned, two decisions of the Federal Court, brought to our notice, conclude the matter in favour of the appellant. The first of these decisions is to be found in Shyamakant Lal v. Rambhajan Singh, 1939 F. C. R. 193 : (A. I. R. (26) 1939 P. C. 74), where it was held, that the appellate Court is competent to recognise the law as it exists on the date when the appeal comes to be decided.
7. The second case which has been relied on is Lachmeshwar Prasad v. Girdhari Lal, 1940 F. C. R. 17 : (A. I. R. (27) 1940 F. C. 26), where the question, whether an appellate Court could take into account the subsequent change of law, was again carefully considered. Sir Maurice Gwyer C. J. quoted with approval the following observations from an American case:
"We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered."
Varadachariar J. dealing with this question, observed that the Court of appeal in India was not merely a Court of error and was, therefore, not bound to confirm a decree passed by the Court below, if it was shown to be correct according to the law as it stood on the date when it was passed, but that the hearing of an appeal was in the nature of a rehearing, for it is provided in Section 107, Civil P. C., that a Court of appeal shall have the same power and shall perform, as nearly as possible, the same duties as are conferred or imposed on the Court of first instance. He referred further to the provisions of Order 41, Rule 33, Civil P. C., where an appellate Court has been given the power to make such further or other decree or order as the case may require. The learned Judge reviewed the case law--Indian and English--and came to the conclusion, that a Court of appeal in India possessess the same powers which a Court of appeal has in England. All the three learned Judges, constituting the Bench, concurred in the view, that an appellate Court is bound to take into account the state of law as it exists on the date when the appeal comes up for hearing.
8. These pronouncements by their Lordships of the Federal Court are binding upon us, and, according to them, it is our duty to take into account Section 16 of the Act in considering, whether the plaintiff is entitled to eject the defendant from the premises.
9. Section 15 of the Act reads as follows :
"In all suits for eviction of a tenant from any accommodation pending on the date of the commencement of this Act, no decree for eviction shall be passed except on one or more of the grounds mentioned in Section 3."
10. Learned counsel for the respondent has argued that Section 15 provides for a suit only and does not apply to an appeal. In our opinion there is no force in this contention, for the Act does not anywhere provide specifically for appeals and we consider that the "suit" mentioned in Section 15, includes a suit while it is before the Court of first instance and also while it is before the appellate Court. An appeal is but a continuation of a suit. The learned counsel for the appellant is, therefore, right in his contention, that the decree for the eviction of the appellant should not be passed unless it is shown that the case is covered by any one or more of the grounds mentioned in Section 3 of the Act.
11. Learned counsel for the respondent further contended, that Section 15 is not applicable to this case, because the premises from which the defendant is sought to be evicted do not come within the definition of the term "accommodation" as defined in the Act, The contention of the learned counsel is that in order to be an 'accommodation' within the meaning of the section it should be both residential and non-residential, and that if it is only a residential accommodation, it is not 'accommodation' within the meaning of that term as defined in the Act.
12. In our opinion, this contention is devoid of all force. We consider that the word 'and' has been used in this definition disjunctively and not conjunctively. According to the interpretation put by the learned counsel, if the accommodation is entirely residential, the Act does not apply to it and a tenant cannot got the benefit of the Act. We do not think that such consequences were intended or contemplated by the legislature. The 'accommodation', as defined in the Act, clearly means residential or non-residential, or partly residential and partly non-residental, accommodation. The definition is comprehensive enough to cover all kinds of accommodation.
13. In the view of the case that we have taken, it is not necessary for us to discuss whether the learned Judge of the lower appellate Court was justified in modifying the decree of the Court of first instance in accordance with the decision in Makkan Lal v. Shankar Lal (1945 A. W. R. (h. C.) 29) (ubi supra), We would, however, like to point out, that on a Letters Patent appeal the decision relied on by the learned Judge has been overruled; vide Makhan Lal v. Shankar Lal, Letter's Patent Appeal No. 1 of 1945, decided on 20th January 1949.
14. Learned counsel for the respondent rightly points out, that when he instituted the suit, it was not necessary for, him to plead and prove facts which were necessary to be pleaded and proved in order to bring his case within one or more of the grounds mentioned in Section 8 of the Act. He points out that it would be extremely unjust to his client that the appellant should be permitted to rely on Section 16 of the Act, which came into existence after the case had been decided by the lower appellate Court, while she herself should not be afforded any opportunity of pleading and proving facts which would exclude the application of Section 15 to the present case. We consider that there is great deal of force in this contention.
15. We have so far discussed second Appeal No. 804 of 1946. The other appeal, namely, F. A. P. O. No. 256 of 1945 appears to be entirely misconceived. An application was made before the lower appellate Court in which it was prayed that on account of certain matters, the plaintiff was estopped from continuing the appeal in the lower appellate Court. The application purported to be under Order 23, Rule 3, Civil P. C. but was, in fact and in substance, not an application under that rule, because no compromise was alleged in that application. All that was said was, that the plaintiff was estopped from proceeding with the appeal, and the only prayer contained in the application was that the appeal be dismissed. The lower appellate Court rejected this application, This order of the lower appellate Court is not an appealable order. The appeal has been filed treating the order to be under Order 23, Rule 3, because the application was headed as such. The mere heading of the application does not make an order passed upon appealable if in its substance and reality the order be not an appealable order. In our opinion, therefore, F. A. F. O. No. 255 of 1945 is not maintainable because the order agaist which it has been filed is not an appealable order.
16. For the reasons indicated above, we allow Second Appeal No. 804 of 1946, set aside the decrees passed by the Courts below and remand the case to the Court of first instance, through the lower appellate Court with the direction that the plaintiff should be permitted to amend her plaint and the suit be reheard and decided after the plaint has been amended, after giving an opportunity to the defendant, to file such written statement to the amended plaint as he may desire, and after giving an opportunity to the parties to lead such evidence as they may desire to produce. Costs incurred up to this date and costs to be incurred here, after shall abide the result.
17. F. A. F. O. No. 265 of 1945 is dismissed with costs.
18. The record shall be sent down to the Court below as early as possible. The office will, so far as possible, expedite the preparation of the decree.