Judgment B.P.JHA, J. 1. Defendant (tenant) preferred this civil revision application against an order dated 12-2-77 passed by the Additional Munsif, 4th Court, Patna, in Title Suit No. 67/26 of 1973/76. 2. The plaintiff-opposite party filed a suit for eviction of defendant-tenant. During the pendency of the suit the plaintiff filed an application on 4-6-74 under S.11A of the Bihar (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III of 1947) (hereinafter to be referred to as the 1947 Act) for directing the defendant to deposit arrears of rent at the rate of Rs. 85/- per month. The defendant filed a rejoinder to that petition on 17-1-77. On 12-2-77 the court directed the defendant under Sec.11A of the 1947 Act to deposit arrears of rent in respect of the suit premises from 17-4-73 till January, 1977 at the rate of Rs. 85/- per month within 15 days from the date of the order. The defendant was also directed to deposit current as well as future rent of the suit premises at the same rate by the 15th day of the next following month. 3. This revision was referred to Division Bench by Birendra Prasad Sinha. J., on the ground that there are two contradictory decisions in respect of an interpretation of Sec. 1(3) and second proviso thereto of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977 (Act 16 of 1977) (hereinafter to be referred to as the "1977 Act"). 4. S.K. Choudhuri, J., is of opinion that if an order is passed between 1st April, 1976 and before 8th Sep., 1977, the order passed by the trial Judge is non est (see (Dr.) Sailendranath Roy V/s. (Dr.) (Miss) Geeta Mazumdar, 1978 BBCJ (HC) 214 : ( AIR 1978 Pat 207 )). A contrary view was taken by Madan Mohan Prasad, J., in Prabhat Kumar Das V/s. Santhal Paharia Sewa Mandal, 1978 0 BBCJ(HC) 297. It is for this reason that the learned single Judge referred this revision by an order dated 4th Jan., 1978. 5. The 1947 Act expired by virtue of Sub-Section (3) of S.1 on 31st March, 1976. The 1977 Act came in force on 8th Sep., 1977. Between 1st April, 1976 and 7th Sep., 1977 no act was in force. 6. It is for this reason that the learned single Judge referred this revision by an order dated 4th Jan., 1978. 5. The 1947 Act expired by virtue of Sub-Section (3) of S.1 on 31st March, 1976. The 1977 Act came in force on 8th Sep., 1977. Between 1st April, 1976 and 7th Sep., 1977 no act was in force. 6. The simple point for consideration in this revision is : what is the effect of an order passed in between 1st April, 1976 and 7th Sep., 1977 in a suit which was legally instituted before 31st March, 1976 under the provisions of the 1947 Act ? In this connection it is relevant to refer to Sub-Section (3) of S.1 and the relevant proviso thereto under the 1947 Act, which runs as follows : "(3) It shall remain in force up to and including the 31st March. 1976 provided that the expiration of this Act under the operation of this Sub-Section shall not - x x x x x (b) affect any liability incurred under this Act or any punishment incurred in respect of any contravention of this Act or any order made thereunder; or (c) affect any investigation or legal proceeding in respect of any such liability or punishment as aforesaid; and any such investigation or legal proceeding may be instituted, continued or enforced and any such punishment may be imposed, as if this Act had not expired." On a perusal of Cl.(b) of the proviso to Sub-Section (3) of Sec. 1 of the 1947 Act, it is clear that even after the expiration of the said Act (1947 Act) it shall not affect any liability incurred under that Act. In the present case, the plaintiff filed an application under Sec. 11A of the 1947 Act on 4th June, 1974 and the order was passed by the court on 12-2-1977. Admittedly on 12-2-1977, the 1947 Act was not in force. By virtue of the saving clause as laid down in proviso (b) to Sub-Section (3) of Sec. 1, it is clear that even after the expiration of the 1947 Act it shall not affect any liability incurred under that Act. Relying on the saving clause, I hold that, if an order under Sec.11-A has been passed on 12-2-1977, it shall not affect the liability of the tenant to pay the rent as directed under S.11-A of the 1947 Act. 7. Relying on the saving clause, I hold that, if an order under Sec.11-A has been passed on 12-2-1977, it shall not affect the liability of the tenant to pay the rent as directed under S.11-A of the 1947 Act. 7. Clause (c) of the second proviso to Sub-Section (3) of S.1 of the 1977 Act is also relevant in this connection. It provides that if any legal proceeding has already been instituted then that shall continue even after the expiration of the 1947 Act. In the present case a legal proceeding in respect of Sec. 11-A of the 1947 Act was instituted on 4th June, 1974 and as such it shall continue in respect of a liability even after expiration of the 1947 Act. On this basis also, I hold that the liability of the defendant shall continue even if the order was passed on 12-2-1977. 8. On 8th Sep., 1977, Bihar Act 16 of 1977 came into force. It is relevant to quote here Sub-Section (3) of S.1 of the 1977 Act and the relevant second proviso to that Section : "(3) Sec.25 shall come into force at once and the remaining provisions of this Act shall be deemed to have come into force on the 1st of April, 1976 and the Act shall remain in force up to and including the 31st March, 1981 : x x x x x x Provided further that the expiration of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III of 1947), between the period commencing from 1st of April, 1976 and the commencement of this Act shall not X x x x x x (b) affect any liability incurred under that Act or any punishment incurred in respect of any contravention of this Act or any order made thereunder; or (c) affect any investigation or legal proceeding in respect of any such liability or punishment as aforesaid : and any such investigation or legal proceeding may be instituted, continued or enforced and any such punishment may be imposed as if that Act had not expired." On a perusal of Sub-Section (3) of Sec. I, it is clear that except Sec. 25 all the remaining provisions of the 1977 Act shall be deemed to have come into force on 1st April, 1976. It is, therefore, manifest that all the provisions of the 1977 Act except Sec. 25 came into force on 1st April, 1976. If the court passed an order under S.11-A on 12-2-1977, it would be deemed that the order under Sec. 11-A was passed under the provisions of the present Act (Act 16 of 1977). Clause (b) of the second proviso clearly provides that even after the expiration of the 1947 Act, i.e. between 1st April, 1976 and 7th Sep., 1977, it shall not affect any liability incurred under the said Act (Act III of 1947). By a legal fiction if any order has been passed between 1st April, 1976 and before the commencement of the 1977 Act, this Act (1977 Act) validates the action taken under the provisions of 1947 Act. If that is so, the order passed on 12-2-1977 by the court below is valid dated by Cl.(b) of the second proviso to Sub-Section (3) of S.1 of 1977 Act. Clause (c) of the second proviso is also relevant. It provides that if any legal proceeding has been instituted, it shall continue in spite of the expiration of the 1947 Act. Relying on the proviso to Sub-Sec. (3) of S.1 of 1947 Act read with Sub-Section (3) of S.1 along with Cls. (b) and (c) of the second proviso thereto under the 1977 Act, it is clear that if any liability has been incurred or any legal proceeding has been instituted, that shall continue even after the expiration of Bihar Act III of 1947. In other words, if any liability has been incurred or any legal proceeding has been instituted after the expiry of the 1947 Act, i.e., between 1st April, 1976 and 7th Sep., 1977, that liability shall continue and the legal proceeding shall also continue. 9. It is not a case of repeal of the statute but it is a case of continuance of a temporary law. Bihar Act III of 1947 was a temporary law which was in force up to 31st March, 1976. By virtue of Bihar Act 16 of 1977 the provisions of the 1947 Act shall be deemed to continue. 9. It is not a case of repeal of the statute but it is a case of continuance of a temporary law. Bihar Act III of 1947 was a temporary law which was in force up to 31st March, 1976. By virtue of Bihar Act 16 of 1977 the provisions of the 1947 Act shall be deemed to continue. The 1977 Act was enacted because thousands of cases were pending under the provisions of the 1947 Act and, therefore, in the interest of the general public the provisions of the 1947 Act will be deemed to continue by virtue of 1977 Act. In this connection Craies states at Page 409 of Statute Law, 7th Edition : "There is a difference between temporary statutes and statutes which are repealed; the latter (except so far as they relate to transactions already completed under them) become as if they had never existed; but with respect to the former, the extent of the restrictions imposed, and the duration of the provisions, are matters of construction." In the present case, 1947 Act continued in force for a specified period, i.e. up to 31st March, 1976 and as such it was a temporary Act. It is the practice of the Legislature to pass continuance Act in respect of an expired law. The expired law continues in force by virtue of the Continuance Act. In this view of the matter, I hold that 1947 Act continued in force by virtue of passing of 1977 Act. If it is so, by virtue of the provisions of 1977 Act, the provisions of 1947 Act continued to be in force between the expiry of the 1947 Act and the commencement of the 1977 Act. In this view of the matter, I hold that if any liability has been incurred or legal proceeding has been instituted between the expiry of the 1947 Act and the commencement of the 1977 Act, the liability shall not be affected and the legal proceeding shall continue by virtue of the proviso to Sub-Section (3) of S.1 of 1947 Act read with Sub-Section (3) of S.1 and Cls.(b) and (c) of the second proviso thereto under the 1977 Act. In this view of the matter, I agree with the view of Madan Mohan Prasad, J., in Prabhat Kumar Das, (supra). In this view of the matter, I agree with the view of Madan Mohan Prasad, J., in Prabhat Kumar Das, (supra). I respectfully disagree with the opinion of S.K. Choudhuri, J., in Sailendra Nath Roys case 1978 BBCJ (HC) 214 : ( AIR 1978 Pat 207 ) (supra). 10. I, therefore, dismiss the revision petition without costs. 11. S. K. JHA, J. :- I respectfully agree that this civil revision application be dismissed without costs and the point of law referred for decision to this Bench be answered against the petitioner. In deference, however, to the divergence of views expressed by two of the learned Judges of this Court, namely, S.K. Choudhuri, J., in the case of (Dr.) Sailendra Nath Roy V/s. (Dr.) (Miss) Geeta Mazumdar (1978 BBCJ (HC) 214) : ( AIR 1978 Pat 207 ) and Madan Mohan Prasad, J., in the case of Prabhat Kumar Das V/s. Santhal Paharia Sewa Mandal (1978 BBCJ (HC) 297) I feel obliged to say a few words on the question involved. 12 There is no dispute as to the applicability of the particular statutory provisions, in so far as the question which falls for our determination is concerned, but the construction of those provisions is the subject of acute controversy. 13. My learned Brother has already referred to the particular statutory provisions, the construction of which falls for our consideration in this case. Even at the cost of repetition, however, I may point out the provision of law which admittedly falls for construction. It is Cl.(c) of the proviso to Sub-Section (3) of S.1 of the 1947 Act which, for the sake of convenience, may be reproduced hereunder : "(3) It shall remain in force up to and including the 31st March, 1976. Provided that the expiration of this Act under the operation of this Sub-Section shall not - x x x x x x (c) affect any investigation or legal proceeding in respect of any liability or punishment as aforesaid; and any such investigation or legal proceeding may be instituted, continued or enforced and any such punishment may be imposed, as if this Act had not expired." The liability referred to in Cl.(c) extracted above is with regard to any liability incurred under the 1947 Act which is clear from the language of Cl.(b) of proviso to Sub-Section (3) of Sec. 1 of that Act. I shall deal with the construction of this particular statutory provision after I make a reference to the relevant statutory provision of the 1977 Act. The main provision with which we are concerned is Sub-Section (3) of S.1 of the 1977 Act which it would be useful to quote in extenso along with all the provisos - "(3) Sec.25 shall come into force at once and the remaining provisions of this Act shall be deemed to have come into force on the 1st of April, 1976 and the Act shall remain in force up to and including the 31st March, 1981 : Provided that the expiration of this Act shall not - (a) render recoverable any sum which during the continuance thereof was irrecoverable or affect the right of a tenant to recover any sum which during the continuance of this Act was recoverable by him thereunder; or (b) affect any liability incurred under this Act or any punishment incurred in respect of any contravention of this Act or any order made thereunder; or (c) affect any investigation or legal proceeding in respect of any such liability or punishment as aforesaid; and any such investigation or legal proceeding may be instituted, continued or enforced and any such punishment may be imposed, as if this Act had not expired. Provided further that the expiration of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III of 1947) between the period commencing from the 1st of April, 1976 and the commencement of this Act shall not - (a) render recoverable any sum which during the continuance thereof was irrecoverable or affect the right of a tenant to recover any sum which during the continuance of that Act was recoverable by him thereunder; or (b) affect any liability incurred under that Act or any punishment incurred in respect of any contravention of that Act or any order made thereunder; or (c) affect any investigation or legal proceeding in respect of any such liability or punishment as aforesaid; any such investigation or legal proceeding may be instituted, continued or enforced and any such punishment may be imposed as if that Act had not expired." These are the only statutory provisions which fall for consideration and are the subject-matter of acute controversy, as I have termed it at the outset. S.K. Choudhuri, J., has expressed the view that the liability incurred which has been talked of in Cl.(b) to the second proviso to Sub-Section (3) of S.1 of 1977 Act relates to a liability incurred under the 1947 Act. The learned Judge has also taken the view that the determination of any liability under the provisions of Sec. 11-A of the 1947 Act is not saved by Cl.(b) of the second proviso to Sub-Section (3) of S.1 of the 1977 Act, and it is for the simple reason that during the period of interregnum, as I would call it, namely, from the 1st of April, 1976 to the date when the 1977 Act was brought on the Statute Book, i.e. the 8th Sep., 1977, there was no 1947 Act in existence. The 1947 Act having been in law non est during the aforesaid period of interregnum there could not have been any liability incurred under the provisions of the 1947 Act by any tenant by virtue of any order passed between the 31st March, 1976 and the 7th Sep., 1977. On the contrary, Madan Mohan Prasad, J. is of the view that the retrospective operation of Sub-Section (3) of S.1 of the 1977 Act read with Cl.(c) of the proviso to Sub-Section (3) of S.1 of the 1947 Act, saves all legal proceedings, investigations pending as well as orders purported to have been made under the 1947 Act. For the reasons to be given hereinafter, I respectfully agree with the view expressed by Madan Mohan Prasad, J. 14. As already noticed at the outset, the 1947 Act, which, for the sake of brevity, may be termed as the temporary Act, itself provided a clause, namely, cl.(c), more or less in the nature of a saving clause in the proviso to Sub-Section (3) of S.1 thereof. Cl.(c) expressly stipulates and in no vague terms lays down that notwithstanding the expiration of the temporary Act after the 31st March, 1976 any investigation or legal proceeding in respect of any liability incurred under that temporary Act shall be continued as if the Act had not expired. If the construction put forward by Mr. Cl.(c) expressly stipulates and in no vague terms lays down that notwithstanding the expiration of the temporary Act after the 31st March, 1976 any investigation or legal proceeding in respect of any liability incurred under that temporary Act shall be continued as if the Act had not expired. If the construction put forward by Mr. Naseem Ahmad, learned Counsel for the petitioner, be accepted as found favour with S.K. Choudhuri, J., although without noticing this provision of 1947 Act, the whole effect and purport of Cl.(c) of the proviso to Sub-Sec. (3) of S.1 of the 1947 Act shall be rendered nugatory and otiose. It is a well-settled principle of construction that no part of a statute shall be so construed as to convict the Legislature of having engrafted a statutory clause which would be of no purpose or avail to anyone. That is the first limb of my reason. Let us now look to the express language of Sub-Section (3) of S.1 of the 1977 Act which I shall call the Continuance Act. In the Continuance Act it has been expressed in no mean terms that S.25 shall come into force at once. It means that there shall be no retrospective operation of the provision of Sec. 25 of the continuance Act. With regard to the remaining provisions of the Act it introduces a legal fiction and says that all of them shall be deemed to have come into force on the 1st of April, 1976. This legal fiction assumes that a law, although not physically brought on the Statute Book at the relevant time, should be presumed to be thereon during all the relevant time. The effect of such retrospective operation by virtue of legal fiction has been noticed times without number and the oft quoted passage of Lord Asquith in East End Dwellings Co. Ltd. V/s. Finsbury Borough Council (1952 AC 109 at pp. 132-33) has received the approval of the Courts not only abroad but of highest court of this land. The law Lord has succinctly laid down the effect of such legal fiction in these words : "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." Instead of multiplying the decisions of the Supreme Court, wherein this authoritative passage from Lord Asquiths judgement has been quoted. I may merely make a passing reference to some of them. They are State of Bombay V/s. Pandurang Vinayak, AIR 1953 SC 244 Commr. of Income-tax V/s. S. Teja Singh, AIR 1959 SC 352 and Additional Income-tax Officer V/s. E. Alfred, AIR 1962 SC 663 and a number of others. It is the well-settled rule of interpretation said T.L. Venkatarama Aiyar, J., that in construing the scope of a legal fiction it would be proper and even necessary to assume all those facts on which alone the fiction can operate (vide AIR 1959 SC 352 ). The case of E. Alfred (supra), is more apposite and direct on the point. There the effect of such fiction was brought into play by the Supreme Court even in the matters of assessment under taxation law. In paragraph 7 at p. 665 of the AIR 1962 SC case, it has been said : "No doubt, the fiction made the respondent an assessee for the purpose of assessing the total income of Ebenezer. But the question is whether the fiction came to an end after the assessment, so that he remained a mere debtor thereafter to the Department. The answer to this question would determine the further application of the other Sections of the Act. When a thing is deemed to be something else, it is to be treated as if it is that thing, though, in fact, it is not....." And at p. 666 the learned Judges go to say : "A legal representative who, by fiction, is deemed to be an assessee, therefore, comes within this definition, because he is a person by whom income-tax is payable, though out of the assets left by a deceased person......... Nor can the fiction in that Sub-Section (Sub-Section (2) of S.24B of the Income-tax Act, 1922) be limited by provisions of law for a totally different situation." No exception can be taken to this well settled rule of interpretation of a legal fiction created by the retrospective operation being given to any statutory provision. Nor can the fiction in that Sub-Section (Sub-Section (2) of S.24B of the Income-tax Act, 1922) be limited by provisions of law for a totally different situation." No exception can be taken to this well settled rule of interpretation of a legal fiction created by the retrospective operation being given to any statutory provision. Mr. Ahmad admits that, if the provision of Sub-Section (3) of S.1 of the Continuance Act were left at that, he would have no case, but he seeks to rely on the provisions of Cl.(b) of the second proviso of Sub-Section (3) of Sec. 1 of the Continuance Act. This, I say with all respect to the reasoning of S.K. Choudhuri, J., is a submission wholly fallacious and based upon a misconception of the true construction of the proviso to be applied in case like the instant one. The question is whether the provisions of Cls.(b) and (c) of the second proviso to S.1(3) of the 1977 Act extend or limit and cut down the operative portion of the retrospective provision engrafted in Sub-Section (3) of Sec.1. The general rule certainly is that inconsistencies can be avoided by applying the rule that the words of a proviso are not to be taken absolutely in their strict literal sense, but that a proviso is of necessity limited in its operation to the ambit of the Section which it qualifies (vide Maxwell on the Interpretation of Statutes, 12th Edition, at p. 189). But there is another well-settled rule of construction, which is this - "If, however, the language of the proviso makes it plain that it was intended to have an operation more extensive than that of the provision which it immediately follows, it must be given such wider effect." (vide Maxwell, 12th Edn., at p. 190). To the same effect has the principle been summed up by Craies on Statute Law, 5th Edn., at p. 203, in these words - "But Sections, though framed as provisos upon preceding Sections, may exceptionally contain matter which is in substance a fresh enactment, adding to and not merely qualifying what goes before." And, it is this principle which, in my view, should appropriately apply while construing the provision of Cls.(b) and (c) of the second proviso to S.1(3) of the Continuance Act. Thus, in my reasoning, if the intention of the Legislature were to cut down the retrospective operation of the 1977 Act as given in Sub-Section (3) of S.1, it could have very well said so in so many words. A reference to the first proviso to Sub-Section (3) of S.1 would make the position wholly clear. The first proviso to Sub-Section (1) lays down that notwithstanding the expiry of the 1977 Act after the 31st of March, 1981, certain consequences shall follow and be saved. This can in no way be said either to limit or cut down the operative portion of Sub-Section (3) of S.1. This is in the nature of and in substance, as Craies calls, a fresh enactment, adding to and not merely qualifying what has been provided in Sub-Section (3) of S.1 and if that be the only construction of the first proviso to Sub-Section (3) of S.1, there is no reason why the second proviso be considered on any different plane or footing. On the contrary, the second proviso is in the nature of a more substantive enactment not only saving the liability incurred under the temporary Act or the punishment imposed in respect of contravention of that Act, but it further reinforces, as has already been contained in the retrospective, substantive provision of Sub-Sec. (3) of S.1, that any investigation or a legal proceeding in respect of any liability incurred under the temporary Act shall be continued or enforced or any legal proceeding instituted. Whether a proceeding under the provisions of S.11A of the 1947 Act (temporary Act) can be treated as an investigation or a legal proceeding, will be of no consequence in so far as this question is concerned. Indeed, it is not the petitioners case even before us that the proceeding in relation to the application filed by the plaintiff landlord under S.11A of the temporary Act was not in the nature of a legal proceeding or investigation of a particular fact under that Act. Whatever view be taken, one thing about which I am quite certain is that the effect of the two provisos to Sub-Sec. (3) of S.1 of the 1977 Act is not in any way either to limit or cut down the general nature of the operative portion of the retrospective provision contained in S.1(3) of the Continuance Act (1977 Act). 15. 15. If once it is held as it must be held that the 1977 Act (excepting Section 25 thereof) came into force with effect from 1st April, 1976 then the provisions of S.13 of this Act which is a reproduction of S.11A of the 1947 Act were in existence on and from 1-4-1976. The order which has been passed under S.11A of the temporary Act will in any event be deemed to have been passed under S.13 of the Continuance (1977) Act. In my view, mere change of the label with regard to the provision of law will make no difference in substance. It will be heaping unreason upon technicality to take any other view of the matter. That being the position, whether the impugned order be taken to be one under S.11A of 1947 Act or S.13 of the 1977 Act will make no difference in so far as the validity of the order is concerned. 16. That being so, and as I have unhesitatingly taken that view, I see no equities to be worked out between the parties on the language of the statutory provisions concerned S.K. Choudhari, J. has taken into consideration an aspect which, with great respect I venture to say, has got no relevance on the point to be considered. The learned Judge has held that the temporary Act (1947 Act) having been made for the betterment and protection of the tenants and the 1977 Act (Continuance Act) being for the same purpose, the construction more favourable to the tenants should be adopted in preference to the other view. It has been observed that the mischief to be remedied has to be looked into and the equities between the parties to be worked out. Therefore the statutory provisions be construed in such a manner as to ensure that the tenant is not left at the mercy of the oppressing landlord. In all humility, I say that this reason is also not free from fault. As has been observed by me in the Full Bench decision of this Court in the case of Ram Nandan Sharma V/s. Mt. Maya Devi, AIR 1975 Pat 283 : "It is in my view plain that the subject-matter of S.11-A was the right or privilege therefore not enjoyed by the landlord except by way of a protracted litigation for recovery of damages for use and occupation. Maya Devi, AIR 1975 Pat 283 : "It is in my view plain that the subject-matter of S.11-A was the right or privilege therefore not enjoyed by the landlord except by way of a protracted litigation for recovery of damages for use and occupation. It is equally clear that the object of S.11-A was to confer on the landlord a right to enjoy the income of his building by a summary adjudication under S.11-A while the course of litigation took its own time." The provisions of S.11A were not at any point of time meant for the benefit of a tenant. It was, on the contrary, a provision by way of a solatium to the landlord who was left at the mercy of the tenant either to be paid his due share of rent or to get vacant possession of his premises in spite of default within the meaning of the Act by the tenant till the result of the suit. The other reasons which impresses me equally is that which can be gathered from the Statement of Objects and Reasons of the 1977 Act, which reads - The very object of this Continuance Act was to save the pending litigations in the courts of law during the period of so-called interregnum between the 1st of April, 1976 and the 7th of Sept., 1977. 17. Having given my anxious consideration to all the aspects and in all its ramifications of the matter, I have no hesitation in holding that the view expressed by Madan Mohan Prasad J., in the case of Prabhat Kumar Das (supra) is the correct view. The law as laid down by S.K. Choudhuri J. in the case of Sailendra Nath Roy ( AIR 1978 Pat 207 ) (supra) does not lay down the correct legal position and must be overruled.