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Smt. Sudha Mukherjee Vs. Sankar Chatterjee - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 344 of 1981 with C.R. No. 510 of 1981
Judge
Reported inAIR1982Cal407,86CWN841
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17; ;West Bengal Premises Tenancy Act, 1956 - Section 13(3A)
AppellantSmt. Sudha Mukherjee
RespondentSankar Chatterjee
Appellant AdvocateS.P. Roy Chowdhury, ;S. Chatterjee, ;Aloke Banerjee and ;Tapan Kr. Roy, Advs.
Respondent AdvocateB.C. Dutt and ;Samir K. Roy Chowdhury, Advs.
DispositionAppeal dismissed
Cases Referred and Ebrahimbhai v. State
Excerpt:
- .....the tenant defendant. the plaintiff is the appellant now before us.2. the plaintiff purchased the suit premises on dec. 2, 1975. at the time of such purchase the tenant defendant was in occupation of the suit premises as a pre-existing tenant. by a notice dated may 22, 197t, the plaintiff determined the tenancy in favour of the tenant defendant with the expiry of june 1977 and such a notice being a combined notice under section 106 of the transfer of properly act and section 13 (6) of the west bengal premises tenancy act, 1956, the plaintiff instituted the suit for eviction, being title suit no. 560 of 1977 of the 1st court of the learned munsif at sealdah on august 19, 1977. on the plaint as originally filed, such eviction was sought for on the sole ground that the tenant defendant had.....
Judgment:

Anil K. Sen, J.

1. This appeal from an appellate decree has been referred to us by a learned single Judge of this court as he was unable to share the view expressed by another learned single Judge in the case of Haripada Das v. Sristidhar Chakraborty, : AIR1979Cal221 . The present appeal arises out of a suit for eviction which was decreed by the trial court but was dismissed on an appeal by the tenant defendant. The plaintiff is the appellant now before us.

2. The plaintiff purchased the suit premises on Dec. 2, 1975. At the time of such purchase the tenant defendant was in occupation of the suit premises as a pre-existing tenant. By a notice dated May 22, 197T, the plaintiff determined the tenancy in favour of the tenant defendant with the expiry of June 1977 and such a notice being a combined notice under Section 106 of the Transfer of Properly Act and Section 13 (6) of the West Bengal Premises Tenancy Act, 1956, the plaintiff instituted the suit for eviction, being Title Suit No. 560 of 1977 of the 1st Court of the learned Munsif at Sealdah on August 19, 1977. On the plaint as originally filed, such eviction was sought for on the sole ground that the tenant defendant had transferred, assigned and/or sublet portions of the ground floor to several persons without the previous consent in writing of the landlord. During the pendency of this suit on March 14, 1979, the plaintiff filed an application for amendment of the plaint under Order 6, Rule 17 read with Section 151 of Civil P.C. By the amendment, the plaintiff sought to incorporate two more additional grounds in support of her claim for eviction, namely, (i) that the plaintiff requires the suit premises for her own use and occupation, in as much as, she purchased the property with a view to reside there with the members of her family she having no other alternative suitable accommodation of her own and (ii) that the plaintiff requires the suit premises for building and rebuilding. Such an amendment was allowed by an order dated March 27, 1979.

3. The suit was contested by the tenant defendant who denied all the material allegations made in the plaint. The allegation of subletting was specifically denied and the claim for eviction on the ground of requirement or for building and rebuilding was contested on the ground that such a claim is not bona fide and is not admissible in view of the provision of Sub-section (3A) of Section 13 of the W. B. Premises Tenancy Act.

4. On the evidence led by the parties both the courts have concurrently overruled the plaintiff's claim of eviction based on the ground of subletting or the plaintiff's requirement for building and rebuilding. Neither of those two grounds according to the courts below could be substantiated by the plaintiff on the evidence led by her. The learned Munsif, however, decreed the suit upon a finding that the plaintiff had been able to make out the ground of reasonable requirement for her own use and occupation and for the use and occupation of the members of her family. The objection on the part of the tenant defendant that such a ground is not admissible to the plaintiff in the present suit which was filed within 3 years from the date of the plaintiff's purchase was overruled by the learned Munsif primarily relying upon the decision of the Supreme Court in the case of B. Banerjee v. Anita Pan, : [1975]2SCR774 . He was of the view that the application for amendment having been filed beyond 3 years from the date of the plaintiff's purchase, plaintiff's suit for eviction on the grounds incorporated by the amendment must be deemed to be instituted on the date when such an application for amendment was filed and since that was beyond 3 years from the date of purchase there was no bar to the plaintiff's getting eviction on the ground so incorporated.

5. The tenant defendant preferred an appeal. The court of appeal, it appears, upheld the plaintiff's case of requirement for her own use and occupation particularly in view of the admission of the defendant tenant in the cross-examination. But the learned judge in the court of appeal below failed to agree with the learned Munsif that Sub-section (3A) of Section 13 would not stand in the way of plaintiff getting a decree for eviction in the present suit on the ground incorporated by the amendment. According to the learned judge of the court of appeal below the ratio of the decision of the Supreme Court in the case of B. Banerji v. Anita Pan (supra) would not be applicable to a suit instituted after the amendment of the W. B. Premises Tenancy Act by the Amending Act of 1969, when not only Sub-section (3A) was introduced but original Section 13 (1) (f) was made into Sections 13 (1) (f) and 13 (1) (ff). In that view, the learned judge in the court of appeal below held that the suit is hit by the provision of Sub-section (3A) of Section 13 of the W. B. Premises Tenancy Act and he accordingly allowed the appeal and dismissed the suit. Feeling aggrieved, the plaintiff-landlord has preferred the present appeal.

6. Mr. Roychowdhury appearing in support of this appeal has strongly contended that the court of appeal below was not justified in holding that the ratio of the Supreme Court decision in the case of B. Banerji v. Anita Pan : [1975]2SCR774 (supra) is not applicable to a post-Amendment Suit. According to Mr. Roychowdhury, the principle laid down therein with regard to filing of fresh pleadings and the effect thereof would be equally applicable to all suits whether instituted prior to or after the Amending Act came into force which was retrospective in operation. That apart, according to Mr. Roychowdhury, all amendments are not necessarily retrospective and when the court is entitled to take notice of subsequent events and allow the parties to mould their pleadings in the light of subsequent events, in the present case the learned Munsif was fully justified in allowing the amendment by way of incorporating new grounds in support of her claim of eviction on a day when the legal bar to the pleading of such grounds in support of such a claim stood removed by efflux of time. According to Mr. Roychowdhury such an amendment takes its effect on the date it is made. Reliance is placed by Mr. Roychowdhury on those lines of cases where the court has either taken notice of subsequent events or had allowed to amend the plaint to incorporate new grounds in support of the original claim where such grounds arose subsequently. Particular reference is made to cases for recovery of possession on the ground of forfeiture of a lease where pending the suit the lease having expired the court had allowed the lessor to seek recovery of possession based on such expiry of the lease.

7. Mr. Dutt appearing on behalf of the tenant defendant has contested the point thus raised by Mr. Roychowdhury. According to Mr. Dutt the ratio of the Supreme Court decision in the case of B. Banerji v. Anita Pan (supra) is not applicable to a suit like the present one which had been filed after the amendment of the statute. Referring to the application for amendment itself Mr. Dutt has contended that the plaintiff instituted the suit really basing her claim on her own requirement on August 19, 1977, in breach of the bar already incorported in the statute by way of Sub-section (3A) though she circumvented the bar by not pleading the ground of requirement at the date of the institution but incorporating the same by a subsequent amendment, Such an amendment, according to Mr. Dutt, was neither bona fide nor permissible in law. In the case before the Supreme Court the suit for eviction having been filed before the amendment of the statute, the Supreme Court found that the bar under Sub-section (3A) could have no application to such a suit but the suit would fail because of the amendment, in as much as, the ground on which the suit was instituted was lost by the amendment. In such a situation the Supreme Court allowed the parties to incorporate fresh pleadings making out a case in the light of the amended statute and since such a ground cannot refer back to the date of the institution of the suit, it was held that the suit must be deemed to have been filed on the date the fresh pleading is filed. Such a principle can hardly be used for the purpose of circumventing a bar to the institution of a suit incorporated by Sub-section (3A) of Section 13 of the W. B. Premises Tenancy Act, it has further been contended by Mr. Dutt that general principles relied on by Mr. Roychowdhary laid down by courts with regard to amendment having regard to subsequent events can have no application where the amendment has been sought for for the purpose of circumventing a statutory bar.

8. We have carefully considered the rival contentions put forward before us. In our view the dispute now raised before us has to be considered from two angles, viz., (1) whether such an amendment could have been lawfully allowed and (2) even if such an amendment be allowed whether the suit would still be hit by Sub-section (3A) of Section 13 of the W. B. Premises Tenancy Act 1956. On the point of amendment though strong reliance is placed on the decision of the Supreme Court in the case of B. Banerji v. Anita Pan : [1975]2SCR774 . We do not think that the said decision can be of any help to the appellant. In the said decision, the Supreme Court upheld the constitutional validity of the retrospective operation of the Amending Act after overruling the contrary view expressed by this Court, Having done so, in para 27 of the judgement the Supreme Court considered the effect of the amendment on the pending litigation. The Supreme Court observed that the suits, there under consideration, as instituted in the year 1961 or 1964 would not be hit by Sub-section (3A) as incorporated by the Amending Act of 1969 notwithstanding its retrospective operation because that sub-section prohibited suits for recovery of possession by transferee landlords on any of the grounds mentioned in Clause (f) or Clause (ff) of Sub-section (1). But neither of those two grounds constituted the ground for eviction in those suits because such were the new grounds incorporated by the Amending Act which were not in existence prior to 1969. The Supreme Court, however, proceeded to hold that even then the suit must fail on the bar of Section 13 (1) because the ground on which those suits were instituted were lost by the amendment. It is only in that background when the plaintiffs in suits pending since before the amendment were found to be non-suited by the change incorporated by the Amending Act that the Supreme Court prescribed a just resolution of the complex situation by filing of fresh pleadings in accordance with the changed law. The Supreme Court held that in such cases the plaintiffs should be allowed to file fresh pleadings averring grounds as contemplated by the Act as amended and proceed with the suit on such grounds. Since a suit on such a ground could be instituted only after the amendment and not earlier that the Supreme Court held that fresh pleadings being filed the suit must be deemed to have been instituted on such grounds on the date of filing of such fresh pleadings. Supreme Court made it further clear that 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). The position, however, is totally different in a case like the present one now under consideration. Here the ground for eviction was available to the plaintiff on the day the suit was instituted but the law prohibited the plaintiff from instituting a suit on such a ground before the expiry of 3 years from the date of her purchase. The prohibition was against instituting the suit on such a ground of requirement. Such a prohibition is being circumvented when the plaintiff institutes the suit pleading a different ground though her real intention is to get a decree on such a ground of requirement which is well established by the fact that she incorporates such a ground into the pleading by subsequent amendment and when she obtains the decree on such a ground. Unlike the case before the Supreme Court here the ground being available to the plaintiff the law had incorporated a prohibition and to allow the amendment is to circumvent the prohibition and not resolve a complexity brought about by the statute ag in the case before the Supreme Court It is not a case where the earlier institution of the suit can be ignored because of non-existence of the grounds on which the claim of eviction rests.

9. Mr. Roychowdhury may be right in his contention that in law to do justice between the parties and in order to shorten the litigation the court not only takes note of subsequent events but also allows amendment of pleadings in the light of such subsequent events where it is shown that the original relief claimed has by reason of subsequent change of circumstances become inappropriate or that it is necessary to have the decision of the court on the altered circumstances in order to shorten the litigation or to do complete justice between the parties and it becomes incumbent upon a court of justice to take notice of event which has happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made and leave to amend may be gran'ed for this purpose, (See Rai Charan v. Biswanath, AIR 1915 Cal 103). But this is a principle adopted as an exception to the general rule that an action must be tried in all its stages on the cause of action as it existed at the commencement of the action. Such a principle cannot, however, be invoked to nullify the effect of a statutory prohibition as in Sub-section (3A) of Section 13 of the W. B. Premises Tenancy Act. Looking at the substance there is no subsequent event in the strict sense of the term. Upon the plaintiff's application for amendment she had purchased the house as she needed it for her personal use and occupation. When she instituted the suit Within 3 years from the date of her purchase she knew that under the law she could not institute the suit if it was based Upon her own requirement. Having known as such she adopted the procedure of filing the suit on an irrelevant ground and completing the interlocutory steps to make the suit ready for hearing and at the same time taking advantage of resulting lapse of time, she filed the application for amendment to brine in the real ground in support of her claim for eviction. In substance, the amendment so sought for was solely for the purpose of circumventing the legal bar incorporated by Sub-section (3A) of Section 13 of the W. B. Premises Tenancy Act, 1956, which well barred the suit on the date it was instituted if the real ground in support of such a suit had been pleaded in the plaint. As such the amendment sought for could not have been allowed. There is one more reason why the amendment should not have been allowed. The amendment if allowed would not alter the date of institution of the suit. This will be so for reasons given hereinafter. Hence the consequence of allowing the amendment would be introducing an infirmity which would render the suit not maintainable in law. Though the single Bench decision of this Court in the case of Haripada Das v. Sristidhar Chakraborty, : AIR1979Cal221 well supports the contention of Mr Koychowdhury on the point, we are, with due respect to the learned judge, unable to share the view expressed therein. We, therefore, hold that in the present case the trial court erred in law in allowing the amendment as it did on March 27, 1979.

10. We now proceed to consider the other aspect, viz., whether the amendment when allowed would render the suit not maintainable because the bar under Sub-section (3A) of Section 13 of the W.B. Premises Tenancy Act would be attracted to such a suit, in our considered opinion the answer to the above question must be in the affirmative. The amendment allowed was made only to add new grounds in support of the original claim for recovery of possession on eviction of the tenant defendant. Such an amendment does not alter the nature of the suit nor does it bring in new parties. Those new grounds again are not strictly new in the sense of those accruing after the institution of the suit, in our view it is well settled that even in cases of such amendments, the date of original presentation of the plaint continues to remain the date of the suit. In cases of amendments which do not change the nature and character of the suit or do not attract Section 21 of the Limitation Act, there is no resultant change of the date of the suit. (See Peary Mohan Mukherji v. Narendra Nath Mukherji, (1909) 37 Ind App 27 and Mohini Mohan v. Bangsi, (1890) ILR 17 Cal 580 (PC). In cases where the court takes note of subsequent events or allows grounds which arise subsequently to be pleaded in support of the original claim, the court, does so in the absence of any legal bar as an exception either to shorten the litigation or do complete justice to the parties; that, however, does not ordinarily mean that the date of institution of the suit is altered or that the suit itself is made post-dated. This position is made further clear where in cases of legal bar existing on the date of institution of the suit like those in Section 80 of Civil P.C. or Section 69 of Partnership Act, such bar is not removed by taking of subsequent steps to cure the defect and a consequent amendment pleading such subsequent removal of the defect. Reference may be made to the decisions in the cases of M. S. A.S. Mudaliar v. East Asiatic Co. Ltd., AIR 1936 Mad 991 and Ebrahimbhai v. State, : AIR1975Bom13 . In this view even of the amendment, the suit would be hit by Sub-section (3A) of Section 13 of the W. B. Premises Tenancy Act, 1956, and the learned judge in the court of appeal below was right in holding that the suit should be dismissed on that ground.

11. In the result, the only point raised by Mr. Roychowdhury must fail for reasons given, the appeal fails and is dismissed. Plaintiff-appellant's suit for eviction stands dismissed as the ground of subletting could not be substantiated on evidence led by her and the suit in so far as it is based on grounds incorporated by the amendment is concerned, is hit by Sub-section (3A) of Section 13 of W. B. Premises Tenancy Act, 1956. Parties do bear their costs throughout.

12. Since the appeal is disposed of, the Rule becomes infructuous and is, accordingly, disposed of.

S. K. Sanyal, J.

13. I agree.


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