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Amarendra Nath Bose Vs. SachIn Ghosh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 1517 of 1970
Judge
Reported inAIR1980Cal150
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 13(3A), 17 and 17(2)
AppellantAmarendra Nath Bose
RespondentSachIn Ghosh
Appellant AdvocatePradip Kumar Ghosh and ;Sekhar Kumar Bose, Advs.
Respondent AdvocateAbinas Chandra Bose, Adv.
Cases ReferredB. Banerjee v. Anita Pan
Excerpt:
- .....framed by this court, the suit must be deemed to be a new suit for all practical purposes as held by the supreme court in such circumstances in the said decision of b. banerjee v. anita pan. accordingly, the learned counsel for the respondent submitted that the application under section 17 (2) which was filed by the tenant defendant should be treated as a fresh application under section 17 (2) for all practical purposes. he submitted that accordingly the trial court should dispose of the said application under section 17 (2) in accordance with law and allow the tenant defendant to deposit arrears of rent to be determined by the court in disposing of the said application under section 17 (2).5. mr. ghosh, the learned counsel appearing for the landlord appellant, in his usual.....
Judgment:

G.N. Ray, J.

1. The plaintiff is the appellant in the instant appeal and this appeal arises out of a judgment and decree passed by the learned Additional District Judge, 11th Court, Alipore, in Title Appeal No. 1352 of 1968 reversing the judgment and decree passed by the learned Munsif, 2nd Court, Sealdah, in Title Suit No. 240 of 1966. The plaintiff-appellant instituted the said Title Suit No. 240 of 1966 for eviction of the defendant-respondent from the suit premises on the ground that the plaintiff reasonably required the suit premises for his own use and occupation and the tenancy of the defendant respondent was determined by a valid notice to quit. It appears that an application under Section 17 (2) of the West Bengal Premises Tenancy Act was made by the defendant respondent but the said application was dismissed on the finding that the said application was barred by limitation and an application under Section 17 (3) at the said Act made by the plaintiff-landlord was allowed by the trial court and the defence of the tenant against delivery of possession was struck out. It appears that the plaintiff landlord purchased the suit premises and within three years from the date of purchase the said suit for eviction was instituted by him on the ground of reasonable requirement. But in view of Section 13 (3A) of the West Bengal Premises Tenancy Act the landlord was precluded from instituting the said suit for eviction on the ground of reasonable requirement before the expiry of three years from the date of his purchase. It may be stated that the validity and/or vires of the said Sub-section (3A) of Section 13 of the Act was challenged before the Hon'ble Supreme Court and in the decision made in the case of B. Banerjee v. Anita Pan reported in : [1975]2SCR774 the Supreme Court held that the said provision was intra vires and was also applicable with retrospective effect. Accordingly in view of the aforesaid decision, the suit instituted by the plaintiff was hit by the provisions of Section 13 (3A) of the West Bengal Premises Tenancy Act. But the Supreme Court in the said decision (B. Banerjee v. Anita Pan) held that such a suit for eviction on the ground of reasonable requirement of the landlord could not have been instituted within three years from the date of purchase, but during the pendency of the suit and the appeal therefrom more than three years had elapsed and after the amendment of Section 13 (1) (ff) there was a necessity for amending the pleading of the plaintiff and consequential filing of additional written statement. The Supreme Court observed that in view of such amended pleadings, fresh issue was required to be framed as to whether the plaintiff had suitable alternative accommodation and because of such additional pleadings and framing of new issue the suit was also required to be tried afresh by allowing the parties to adduce further evidence. The Supreme Court held that in such circumstances although in reality no new suit would be filed, but for all practical purposes, it must be held that a new suit has been filed by the plaintiff and as such the bar of instituting a suit under Section 13 (3A) should be held to have been removed. In the instant appeal also in view of the aforesaid decision of the Supreme Court, the plaintiff made an application for amendment of the plaint and such amendment was allowed. The defendant also filed an additional written statement and the said additional written statement was accepted.

2. The learned counsel of the appellant submitted that on the basis of the amended pleading this Court will frame an additional issue and direct the trial court to decide the said issue and dispose of the suit accordingly. He submitted that so far as the question of determining the tenancy by a valid notice to quit is concerned, the court of appeal below has come to the finding that the tenancy was validly determined and as such no contrary view should be taken by this Court. I am satisfied with the aforesaid contention of the learned counsel for the appellant and it appears to me that the tenancy was duly determined by valid notice to quit. In view of the findings made by the courts below it is not necessary to decide other issues already decided by the courts below.

3. The judgment and decree of that court of appeal below is, however, set aside and the matter is sent back on remand to the trial court. The trial court is directed to dispose of the suit on the basis of the decision to be made on the additional issues framed by this Court as set out hereunder:--

1. Has the plaintiff any other reasonably suitable accommodation?

2. Whether the plaintiff reasonably requires the suit premises for his own use and occupation?

The trial court will give the parties opportunities to adduce evidences for the disposal of the said issues and the trial court on consideration of the materials already on record and also further materials and/or evidences to be adduced by the parties, will dispose of the said suit by deciding the aforesaid issues framed by this Court.

4. The learned counsel for the respondent contended that the defence of the defendant was struck out under Section 17 (3) of the Act because the application under Section 17 (2) made by the tenant defendant was dismissed on the finding that such application was barred by limitation. He submitted that although no new suit was filed in reality by the plaintiff but because of such amendment of the pleadings and direction given to the court for retrial on the basis of new issues framed by this Court, the suit must be deemed to be a new suit for all practical purposes as held by the Supreme Court in such circumstances in the said decision of B. Banerjee v. Anita Pan. Accordingly, the learned counsel for the respondent submitted that the application under Section 17 (2) which was filed by the tenant defendant should be treated as a fresh application under Section 17 (2) for all practical purposes. He submitted that accordingly the trial court should dispose of the said application under Section 17 (2) in accordance with law and allow the tenant defendant to deposit arrears of rent to be determined by the court in disposing of the said application under Section 17 (2).

5. Mr. Ghosh, the learned counsel appearing for the landlord appellant, in his usual fairness submitted that according to the spirit of the decision made by the Supreme Court in the said case of B. Banerjee v. Anita Pan, it must be held that for all practical purposes a new suit has been instituted by incorporating the amendment made in the pleading. I am inclined to accept the contention made on behalf of the tenant respondent that in the light of the observation made by the Supreme Court in the said decision, the application under Section 17 (2) made by the tenant defendant should be treated as a fresh application made in the suit and in the facts of the case, such application cannot be held to be barred by limitation because the suit itself must be deemed to have been instituted for all practical purposes on the date when the amendment was incorporated by the plaintiff. Accordingly, it is directed that the trial court will dispose of the said application under Section 17 (2) on merits and determine the arrears of rent and fix time for depositing such arrears. As the suit is pending adjudication for a long time, the trial court is directed to dispose of the suit within four months from the date of receipt of the records from this Court. In fixing the time for depositing arrears of rent to be determined in the application under Section 17 (2), the court should keep in mind that the suit itself should be disposed of within four months and as such extension of time should not exceed beyond the period of four months.

6. There will be no order for costs in this appeal.


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