JUDGMENT Malik, CJ. - This is a defendant's appeal in a suit for ejectment and damages. The plaintiffs had let out the building and machinery of an ice factory situate in Meerut to Har Sarup, appellant, under a deed dated 16th May, 1934, which was for a period of five years, the lessee being required to pay Rs. 50 per mensem as rent. In the lease it was provided that, if the lessee spent, money in charging the machinery or in fixing new machinery, then the lease was to be extended for a further period of five years. It is not necessary to set. out the other terms in the document as the plaintiffs filed a suit No. 89 of 1940 for ejectment of the appellant on the ground that the appellant had committed breaches of certain terms which entitled the plaintiffs to eject. That suit ended in a compromise and under the compromise the lessee Was required to pay a sum of Rs. 5,000 to the lesser and he was allowed to remain in possession of the property for a further period of five years from the date of the compromise. On the expiry of the five years this suit was filed on 9th November, 1944. During the pendency of this suit an order known as the Meerut House Control Order, 1945, was issued under Rule 81 (2) (bb) and (f) of the Defence of India Rules, by the District 2. Magistrate of Meerut. Rule 14 of this rule was as follows:- No landlord shall evict any tenant from any building and no person shall file a suit in any civil court for the eviction of any person without the permission in writing of the Controller. 3. The word 'Building' was defined as follows :- 'Building' means the whole or any part of, a building, irrespective of the purpose for which it may have been constructed or designed, and includes all fittings, gardens, and houses, quarters, and other appurtenances ordinarily attached thereto, fittings include electric wiring and appurtenances, water taps, hand pumps, curtain brackets, and all fixtures which are usually fitted in the house or supplied by the owner. The term 'building' includes shop or business premises. 4. The definition of the word 'building' was wide enough to cover the premises which were used here for the business of manufacturing ice. 5. The term 'building' includes shop or business premises. 4. The definition of the word 'building' was wide enough to cover the premises which were used here for the business of manufacturing ice. 5. The suit was decreed by the learned Munsif on November 30, 1945, and following certain decisions of this Court the learned Munsif held that the House Control Order quoted above did not prevent a decree being passed, though, whether the decree could or could not be executed would be a matter for consideration by the executing court. 6. Rule 14, quoted above, is divisible into two parties : (1) that in future no suit for ejectment shall be filed without the permission in writing of the Controller and (2) that for the suits already filed earlier provisions seems to apply that no landlord shall evict any tenant without the permission in writing of the Controller. To be in conformity with this rule the decree should have been in these terms : A decree for ejectment is passed but it shall only be executed for the tenant's actual eviction if the Controller grants permission in writing for his ejectment. 7. The learned Munsif, -however, as we have already said followed the decisions in Makhan Lal v. Shankar Lal 1945 A.W.R.(HC.) 29; Habib Ahmad v. Keoti Kuer 1946 A.W.R. (H.C.) 54 : A.L.J. 121 and Ram Narain v. J.W. Peters 1947 A.W.R (C.C.) 97. These cases came to be considered by this Bench in a Letters Patent Appeal No. 1 of 1945 Lala Makhan Lal v. B. Shanker Lal (1) decided on 20th January. 1949, but the judgment has not been reported. In our judgment, setting aside the decision of the learned Single Judge, in Makhan Lal's case we said that where the prohibition against ejectment was absolute the court should not, pass a decree for ejectment and we quoted the observations of Mr. Justice Chandrasekhara Aiyar in the case of Mahmood H.Y. Vs. The Kerala Corporation Ltd., AIR 1945 Mad 181 , to the effect that- The courts cannot be called upon to indulge in a mere pastime and pass orders which would be brutum fulmen and which cannot be carried into effect. 8. Justice Chandrasekhara Aiyar in the case of Mahmood H.Y. Vs. The Kerala Corporation Ltd., AIR 1945 Mad 181 , to the effect that- The courts cannot be called upon to indulge in a mere pastime and pass orders which would be brutum fulmen and which cannot be carried into effect. 8. We also observed that where the prohibition was not absolute and a tenant could be ejected with the permission of the District Magistrate it might be possible to pass a decree for ejectment subject to the permission being granted by the District Magistrate for the actual eviction of the tenant. We did not express any opinion whether such permission must necessarily be obtained before the suit was filed. 9. In view, however, of the fact that the Meerut House Control Order, 1945, is no longer in force it is not necessary to consider this matter further. The lower appellate court merely affirmed the decision of the trial court and followed the Single Judge decisions of this court, as the lower court was bound to do, but since the decision by the lower appellate court and during the pendency of the appeal in this Court the U.P. (Temporary) Control of Rent and Eviction Act No. III of 1947, as amended by Act XLIV of 1948 has been passed and that is the law in force today. Niranjan Lal Bhargava v. Rant Kali Devi 1950 A.L.J. 642, the question arose whether this Court should in second appeal take notice of subsequent, legislation which was not retrospective and which was not in force at the time when the Suit was decided. The bench hearing the case followed the decisions of the Federal Court in,. Shyamakant Lal v. Rambhajan Singh 1939 F.C.R. 193 and Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhury 1940 F.C.R. 84, and held that an appeal was merely a continuation of a suit and Courts of Appeal in India were not merely courts of error and the hearing of an appeal, was in the nature of a re-hearing of the suit so that the Courts of Appeal must pass decrees in accordance with law that exists on the, day when the case comes up for hearing. We are bound by the decisions of the Federal Court as also by the bench deck soon of this Court. We are bound by the decisions of the Federal Court as also by the bench deck soon of this Court. If the new Act, that is, the U.P. Act III of 1947 as amended by Act XLVI of 1948 is applied then a tenant cannot be ejected except on the grounds specified in section 3 of the Act unless permission of the District Magistrate has been taken before filing of the suit. At the time when the plaint was filed in the case before us it was not necessary for the " plaintiffs to allege any of the grounds mentioned in section 3. It would, therefore, be necessary to do what was done in the case of Niranjan Lal Bhargava, y Ram Kali Deni, (5) that is, to Bet aside the decrees passed by the lower courts and to remand the case to the court of the first instance through the lower appellate court with a direction that the plaintiffs should be permitted to amend their plaint and that the suit be re-heard 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 produce such evidence as they may desire to produce. 10. The lower appellate court granted mesne profits at Rs. 175/- per month. According to Sri Feasdeo Mukerji, learned counsel for the appellant, the rate was arbitrarily fixed and it should, in no case, exceed the amount that the defendant no. 11. His now getting from defendant No. 2; while according to learned counsel for the respondents, the defendant No. 1 has sub-let portions of the premises to various tenants and is realising much more than Rs.l75 per month, the amount which has been awarded by the lower appellate Court. In view of the fact that the case will have to be reheard it seems desirable that the question of damages should also be left open and may be decided afresh by the courts below after giving parties opportunity to prove their respective allegations. 12. Costs incurred upto this Court and costs to be incurred hereafter shall abide the result.