1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 548 OF 1991 Municipal Council, Jalna through its Chief Officer, Municipal Council, Jalna. ....Appellant. Versus Vilas s/o. Purshottam Hatalkar, R/o. Durga Colony, Jalna, Tq. & Dist. Jalna. ....Respondents. Shri.H.K. Mundhe, Advocate for the appellant. Shri. S.S. Bora, Advocate for the respondent. CORAM : R.K. DESHPANDE, J. DATE : 9th October, 2009 ORAL JUDGMENT : 1. This appeal is preferred by the original plaintiff, Municipal Council, Jalna. A suit for recovery of possession of the suit land being premises bearing quarter No. 41, Durga Colony, in front of S.B. College, Jalna, was filed by the appellant/plaintiff. The said suit was decreed and it was held that the plaintiff will be entitled to recover the possession of the suit property. The Trial Court framed the issues as to whether this 2 suit notice is legal and valid. The same was answered in the affirmative. The respondent/tenant preferred an appeal bearing Regular Civil Appeal No. 24/1982. The same was allowed by the judgment and order dated 22.7.1988 and the judgment and decree passed by the Trial Court is set aside. The Appellate Court held that Exh. 18, which is a notice issued under section 106 of the Transfer of Property Act, dated 9.3.1973, terminating the tenancy with effect from 30.3.1983, was not legal and valid. 2. Being aggrieved by the judgment and order dated 22.2.1988, passed in Regular Civil Appeal No. 24/1982, the Municipal Council, the original plaintiff, is in this second appeal. At the time of admission of the matter, the substantial question was framed as shown in the ground No. 1. The substantial question framed in the ground No. 1, is reproduced below. "i) That the learned lower appellate Judge should have held that the tenancy commences from the 1st day of English calendar month and therefore, the notice of termination of the lease, issued under section 106 of the Transfer of Property Act is valid." 3. The learned counsel for the appellant has urged that there is an amendment to section 106 of the Transfer of Property Act, introduced by the Transfer of Property (Amendment) Act, 2002, substituting section 106 of the said Act. Sub-section (3) of section 106 of the said Act states that a notice under sub-section (1) shall not be deemed to be invalid merely 3 because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of he period mentioned in that sub-section. In view of this amendment, the learned counsel has urged that the findings recorded by the Appellate Court that the notice was invalid for want of due compliance of section 106 does not survive. 4. The only question now remains in this appeal is, whether the amended provisions of section 106 apply to the notice and the suit filed by the plaintiff. The notice was dated 9.3.1973, terminating the tenancy with effect from 30.3.1973, whereas the amendment is introduced on 31.12.2002. The matter is no longer res-integra in view of the decisions of this Court in Second Appeal No. 561 of 1991, decided on 23rd of September 2009, Smt. Yamunabai Gulabrao Bhagat (died) through L.Rs. Vs. Purushottam Ramchandra Dhokate, wherein it has been held that the amended provisions of section 106 would apply in respect of the proceedings which are pending in this Court on the basis of the notice issued under section 106 of the Transfer of Property Act. 5. The question, whether in appeal, this Court can consider the amendments brought to the enactments during the pendency of appeal is dealt with by the Division Bench Judgment of this Court reported in 2007 (2) ALL MR 679, Smt. Kaushalyabai Biharilal Pateriya Vs. Hiralal Bhagwandas Gupta. This Court was considering the question of the 4 effect of omission of section 23 of the Hindu Succession Act, 1956 by way of amending Act No. 39 of 2005. This Court considered the decision of the Apex Court, which laid down that the appeal is a continuation of a suit and it becomes a duty of the Court, hearing an appeal, to take notice of changes in law and also give effect to the same. It was held that though section 23 of the Hindu Succession Act was deleted during the pendency of the appeal, its effect will have to be taken into consideration while deciding the appeal and accordingly, the shares were worked out on the basis of effect of the amended provisions. 6. In view of the aforesaid position, the appeal succeeds. It is held that the proceedings of civil suit cannot be vitiated for want of notice as required by section 106 of the Transfer of Property Act. The judgment and order dated 22.7.1988, passed by the learned IInd Additional District Judge at Jalna in Regular Civil Appeal No. 24/1982 is quashed and set aside and the judgment and decree dated 27.1.1987 passed by the learned Civil Judge, Junior Division, Jalana in Regular Civil Suit No. 315/1978 is restored. There shall be, however, no order as to costs. [ R.K. DESHPANDE, J. ] ssc/sa548.91