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Sm. Ashalata Dey and ors. Vs. Kamal Kumar Bose - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberLetters patent Appeal Nos 196 and 186 of 1974
Judge
Reported inAIR1980Cal271,(1981)1CompLJ235(Cal)
ActsWest Bengal Premises Tenancy Act, 1956 - Section 13 and 13(1); ;Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 17; ;Limitation Act, 1963 - Schedule - Articles 67 and 137
AppellantSm. Ashalata Dey and ors.
RespondentKamal Kumar Bose
Appellant AdvocateS.C. Mitter, ;S.P. Roy Chowdhury and ;Phani Bhusan Das, Advs. in L.P.A. No. 196 of 1974, ;S.C. Das Gupta, ;Saktinath Mookerjee and ;Nihar Ranjan Chatterjee, Advs. in L.P.A. No. 186 of 1974
Respondent AdvocateS.C. Mitter, ;S.P. Roy Chowdhury and ;Phani Bhusan Das, Advs. in L.P.A. No. 186 of 1974, ;S.C. Das Gupta, ;Saktinath Mookerjee and ;Nihar Ranjan Chatterjee, Advs. in L.P.A. No. 196 of 1974
DispositionApplication allowed
Cases ReferredL.J. Leach and Co. Ltd. v. Jardine Skinner and Co.
Excerpt:
- .....a decree for eviction on several grounds including the ground that they reasonably required the suit premises for their own occupation. at the time the suit was instituted section 13 (1) (f) of the west bengal premises tenancy act 1950 in its material part provided:'(f) where the premises are reasonably required by the landlord..... .for his own occupation if he is the owner or for' the occupation of any person for whose benefit the premises are held,'in the plaint the plaintiffs then pleaded their requirement accordingly.3. the suit was decreed on may 20, 1967 by the trial court on twofold grounds, viz. that the plaintiffs reasonably require the suit premises for their own use and occupation and that defendant who had shifted to his own house had wrongfully transferred the suit.....
Judgment:
ORDER

1. This is an application for amendment of the plaint filed in these two Letters Patent Appeals which arise out of a suit for eviction. The application has been heard on contest by the tenant-defendant who is appellant in one of these appeals and respondent in the other.

2. On Apr. 30, 1965 the plaintiffs instituted the aforesaid suit seeking a decree for eviction on several grounds including the ground that they reasonably required the suit premises for their own occupation. At the time the suit was instituted Section 13 (1) (f) of the West Bengal Premises Tenancy Act 1950 in its material part provided:

'(f) where the premises are reasonably required by the landlord..... .for his own occupation if he is the owner or for' the occupation of any person for whose benefit the premises are held,'

In the plaint the plaintiffs then pleaded their requirement accordingly.

3. The suit was decreed on May 20, 1967 by the trial Court on twofold grounds, viz. that the plaintiffs reasonably require the suit premises for their own use and occupation and that defendant who had shifted to his own house had wrongfully transferred the suit premises without the consent of the landlords. The defendant filed an appeal to this Court being F. A. 848 of 1967.

4. On Nov. 14, 1969 the West Bengal Premises Tenancy Act was amended by the Amending Act of 1969 (West Bengal Act 34 of 1969). On such amendment original Clause (f) of Sub-section (1) of Section 13 was bifurcated into two parts and material clause governing cases of requirement for own use and occupation was re-enacted as Clause (ff) which is as follows:--

'(ff) Subject to the provisions of Sub-section (3A), where the premises are reasonably required by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation.'

Section 13 of the Amending Act made the amended provision applicable to pending suits and appeals. This Court in the case of Sailendra Nath Ghosal v. Sona Dutta, : AIR1971Cal331 however held the retrospective operation of the amended provision as given by Section 13 as unconstitutional and as such void. In that view the appeal to this Court was heard and disposed of as on the provisions of the statute before such amendment. This Court set aside the finding of the trial court on the issue as to wrongful transfer of the suit premises by the defendant but affirmed the finding of plaintiff's requirement. It appears from the judgment of this Court that the defendant-appellant really conceded such requirement. This court however took the view that a decree for partial eviction would meet the plaintiffs' requirement and this Court varied the decree accordingly. The defendant's appeal was disposed of accordingly on June 26, 1973. Against that decision both the plaintiff and the defendant have preferred two independent appeals being the Letters Patent Appeal referred to hereinbefore.

5. On Nov. 20, 1974 the Supreme Court reversed the decision of this Court in the case of Sailendra Nath Ghosal as above and upheld the constitutional validity of the retrospective operation of the amended provision vide : [1975]2SCR774 . In that very decision the Supreme Court having held that the amended provision has to be given effect to all pending suits and appeals, further laid down the manner in which it should be so done. It laid down,

'We do it by directing the plaintiffs in the two cases to file fresh pleadings setting out their grounds under Clauses (f) and/or (ff) of Sub-section (1) if they so wish. On such pleading being filed we may legitimately hold that the transferee landlord institutes his suit on grounds mentioned in Clause (f) or (ff) of Sub-section (1) on that date. It is only when he puts in such a pleading setting out the specific ground covered by Sub-section (3A) of Section 13 that we can say be has begun or instituted a suit for the recovery of possession of the premises on that ground. Institution of a suit earlier has to be ignored for this purpose since that was not based on grounds covered by Clauses (f) and/or (ff) and is not attracted by Sub-section (3A). He begins proceedings on these new grounds only when he puts in his pleading setting out these grounds. In spirit and in letter he institutes his suit for recovery on the new grounds only on the date on which he puts in his new pleading. We cannot be ritualistic in insisting that a return of the plaint and a representation thereof incorporating amendments is the sacred requirement of the law.' (p. 1157 para 28).

6. In view of the aforesaid decision of the Supreme Court, the plaintiffs however filed the present application for amendment to plead their requirement in terms of the amended provision of Section 13(1) (ff). This application has been filed on Sept. 20, 1977. In opposing the prayer the defendant has filed an opposition. Principal objection raised is one of limitation.

7. In our view the retrospective operation of the amendment having been upheld by the Supreme Court, the amendment of the pleading becomes a necessity as otherwise the suit is likely to fail on the plaintiffs' failure to plead and prove their requirement within the four corners of the amended provision. Such a necessity having arisen on amendment of the law pending the suit and for no fault of the plaintiffs, it is just and proper that they should be given the necessary opportunity to meet the requirement of law and make out a case in terms of the amended statute.

8. In a sense the amendment sought for is a necessity of the court for the purpose of determining the real dispute in controversy between the parties in the light of the change in law.

9. Mr. Das Gupta appearing on behalf of the defendant has raised three objections. In the first place, he has contended that when the amendment sought for is at a time beyond 12 years from the date of determination of the tenancy on which determination the suit had been instituted the amendment should not be allowed because the plaintiffs' suit for eviction on the amended claim was barred on that day in view of the provisions of Article 67 of the Limitation Act. The second objection raised by Mr. Das Gupta is that in any event the application for amendment not having been filed within three years from the enforcement of the Amending Act when the plaintiffs right to apply accrued the application is time barred in view of the provisions of Article 137 of the Limitation Act. Lastly it has been contended by Mr. Das Gupta that in the facts and circumstances when the tenant-defendant had been raising an objection that the decree is not in accordance with the amended provisions of the statute the amendment at this belated stage should not be allowed in exercise of judicial discretion. Mr. Mitter appearing on behalf of the plaintiff has strongly contested all these objections raised by Mr. Das Gupta.

10. So far as the first objection raised by Mr. Das Gupta is concerned, in view of the recent decision of the Supreme Court holding that requirement of determination of the tenancy governed by Rent Restriction Laws is no longer necessary, it is doubtful as to how far Mr. Das Gupta can invoke the provisions of Article 67 of the Limitation Act. But that apart this objection is otherwise without any substance. Here in the present case by the amendment the plaintiff is not seeking to incorporate any new claim on a new cause of action which on the date he asks for the amendment is barred by limitation- Here the claim of the plaintiffs remains the same, namely the eviction of the tenant-defendant from the suit premises based on the reasonable requirement of their own use and occupation. By the amendment sought for they are merely praying to plead specifically what is the ingredient in their reasonable requirement, namely they have no other alternative suitable accommodation available to them. This they are constrained to do in view of the amended provisions of Clause (ff) of Sub-section (1) of Section 13 of the Act. By the amendment the plaintiffs are seeking neither to plead any new cause of action nor any new claim. Again, assuming for a moment that by the amendment the plaintiffs are seeking to incorporate a claim which is barred by limitation still that by itself would not be a ground for refusal of the amendment prayed for if the amendment is otherwise necessary in the interest of justice. Such requirement may outweigh the objection as to limitation under given circumstances and there can be no doubt that such circumstances have been well made out in the present case. Reference may be made to the decision of the Supreme Court in the case of L.J. Leach and Co. Ltd. v. Jardine Skinner and Co., : [1957]1SCR438 . In this view the first objection raised by Mr. Das Gupta fails and is over ruled.

11. So far as the second objection raised by Mr. Das Gupta is concerned, the only answer lies in the fact that Article 137 of the Limitation Act has no application to such application as in the present case, filed in pending suits as a step in the suit itself. It is more so as it is difficult to say with precision as to when a right to apply for amendment of the plaint under Order 6, Rule 17 really does arise. In our view, Mr. Das Gupta is not right in his contention that the plaintiffs' right to apply for amendment accrued when the statute was amended on November 14, 1969 because notwithstanding the said amendment on the decision of this court in the case of Sailendra Nath Ghosal : AIR1971Cal331 (supra) the amended provisions could have no application to pending suits and appeals. Though it was contended by Mr. Das Gupta that this court in the said decision only struck down the retrospective operation of Sub-section (3A) and not the other part including Clause (ff), in our view on the principles underlying the said decision there is no scope for making any such distinction. It is, therefore, clear that at least until Nov. 20, 1974 when the Supreme Court reversed the aforesaid decision of this Court there arose no occasion for the plaintiffs seeking any such amendment and as such it cannot be said that his right to apply for such amendment accrued on any date prior thereto. Mr. Das Gupta drew our attention to certain averments in his affidavit-in-opposition to show that in a pending execution the defendant judgment debtor had raised certain objections to the decree on the ground that the decree is not in consonance with the amended provisions of the statute and on the basis thereof he contended that at least from the date when such objections were raised the plaintiffs' right to make an application for necessary amendment accrued and when they had not done so within three years from the date of Such objection, the application must be held to be barred under the provisions of Article 137 of the Limitation Act. In our view, such an objection is without any merits. So long the decision of this Court striking down the retrospective operation of the amended provision had not been reversed by the Supreme Court notwithstanding the objection so raised the plaintiffs were not required to seek for any amendment as they have now sought for. Therefore, raising of such objection by the judgment-debtor defendant by itself does not become a relevant factor. Such being the position, we overrule the second objection raised by Mr. Das Gupta.

12. So far as the third objection raised by Mr. Das Gupta is concerned, facts and circumstances are entirely in favour of the plaintiffs. The plaintiffs had instituted the suit at a time when they could not have contemplated the requirement incorporated by the amendment. As a matter of fact, the suit was decreed on the provisions of the statute prior to its amendment when the plaintiffs proved reasonable requirement. Even when the appeal was heard and disposed of by this Court no objection in this regard was raised by the defendant appellant. It was not raised obviously because the parties proceeded on the law as laid down by this Court in the case of Sailendra Nath Ghosal : AIR1971Cal331 . The plaintiffs' case of reasonable requirement was upheld by this Court more or less on concession by the defendant appellant. It is only when the defendant-appellant filed further appeal followed by an appeal by the plaintiffs and when in the meantime the Supreme Court reversed the aforesaid decision of this Court the necessity for such an amendment did arise. The plaintiffs therefore have filed the application for amendment in the pending Letters Patent Appeal arid there is neither any gross delay nor does the delay affect or prejudice the defendant in any manner. Such being the position, we find no reason why we should not exercise our judicial discretion in allowing the amendment, more so when if we refuse the amendment these 14 years litigation by the plaintiffs for recovery of possession of the suit premises for their own requirement would be frustrated for no fault of their own and they will be forced to go for a fresh suit. This objection therefore must fail and we overrule the same.

18. In the result, the application for amendment succeeds. We allow the amendment and direct that the amendment be incorporated in the original plaint. The defendant is given a fortnight's time to file additional written statement, if any in view of the amendment thus allowed by us.

14. The parties are directed to bear their costs.

B.C. Chakrabarti, J.

15. I agree.


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