TMI Blog1978 (2) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... floors of the same building. A contention was also raised by him that the suit filed by the landlord was incompetent, it having been instituted within a period of three years of the acquisition of his interest as landlord in the premises by transfer and was accordingly hit by Sub-section (3A) of Section 13 of the West Bengal Premises Tenancy Act, 1956, as amended by the West Bengal Premises Tenancy (Second Amendment) Act, 1969. The contentions raised by the appellant in the second appeal were overruled by the High Court and the appeal was dismissed and the decree for eviction was affirmed. Upon a certificate granted by the learned single Judge of the High Court the appellant preferred appeal under Clause 15 of the Letters Patent. When the appeal under Clause 15 of the Letters Patent was pending in the High Court, respondent plaintiff sought and obtained leave to amend the plaint arid consequently the appellant defendant filed additional written statement. Thereafter the court framed fresh issues arising from the amended pleadings as under : 1. Is the premises in dispute reasonably required by the plaintiff-respondent for his own occupation and for the occupation of the members ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the building or re-building, or the additions or alterations, as the case may be, are necessary to make the premises safe for human habitation. 5. By Section 13 of the Amending Act, the amendments in the parent Act introduced by Sections 4, 7, 8 and 9 of the Amending Act were made retroactive, being applicable to suits including appeals which were pending at the date of the commencement of the Amending Act. Constitutional validity of Sub-section (3A) introduced in Section 13 was challenged before a Division Bench of the Calcutta High Court in Sailendra Nath v. S. E. Dutt. AIR1971Cal331 The High Court voided only that part of Sub-section (3A) of Section 13 by which it was made retroactive by applying it to pending suits and appeals as being ultra vires of Article 19(1)(f) of the Constitution on the ground of unreasonableness. The matter came before this Court and in B. Banerjee v. Anita Pan [1975]2SCR774 Krishna Iyer, J. speaking for the majority observed as under : We see in the amendment Act no violation of Article 19(1)(f) read with 19(5). The same High Court, in a later case Kalyani Dutt v. Promila Bala Dassi, ILR (1972) 2 Cal. 660, came to the same conclusion by what it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke fresh evidence even if it permits amendment of the pleadings. While working out the mechanics consequent upon upholding the validity of Sub-section(3A) it was open to the Court hearing the appeal under clause IB of the Letter Patent to grant permission to amend the pleadings. By a catena of decisions Order 6, Rule 17 of the CPC has been interpreted to mean that leave to amend may be granted at any stage of the proceedings which may include appeal or even second appeal. But, urged Mr. Sen, that the jurisdiction of the Court Hearing an appeal under Clause 15 does not extend To taking and appreciating evidence and recording findings of facts on issues that may have to be determined arising from amended pleadings. It was said that Order 41, Rules 25 and 27 are exhaustive of the powers of the appellate court to take additional evidence. Simultaneously it was pointed out that Section 100 prescribes the peripheral limits of the Court's jurisdiction while hearing a second appeal. Section 100 as it stood at the relevant time permitted a second appeal to the High Court from every decree passed in appeal by any Court subordinate to High Court on any of the following grounds, viz., (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence and to appreciate the evidence and record findings of fact, a function which even ordinarily is not undertaken by the High Court hearing the second appeal, much less can it be done while hearing an appeal under Clause 15 of the Letters Patent. When on account of a subsequent change in law, amendment of the pleadings is granted which raises disputed questions of fact, the situation would not be one governed by Order 41, Rule 27. At that stage it could not be said that the appellate court is permitting production of 'additional evidence, oral or documentary on the ground that the court from whose decree the appeal is preferred has refused to adduce evidence which ought to have been admitted or the appellate court requires any documents to be produced or any witness to be examined to enable it to pronounce judgment. Nor would the situation be one which could be covered under the expression other substantial cause . Once pleading are permitted to is amended which bring into focus altogether new or fresh disputed questions of fact which have to be resolved on additional evidence that would be necessary to be led, the function is one of appreciation of evidence more appropri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent from appreciating it and acting upon it. The Judicial Committee of the Privy Council in Indraj it Pratap Sahi v. Amar Singh and Ors., Law Reports 50 T.A. 183 was concerned with the ambit of jurisdiction of the appellate court to admit evidence under Order 41, Rule 27. It was held that the jurisdiction can be exercised at the instance of a party and the Judicial Committee has unrestricted power to admit documents where sufficient grounds have been shown for their having not been produced at the initial stage of the litigation. This view was affirmed by this Court in Surinder Kumar and Ors. v. Gian Chand and Ors. [1958] S.C.R. 548 But that has no relevance to the situation under discussion here. 11. Mr. De, however, contended that the appellant had agreed or in fact had never objected to the appellate Bench examining witnesses and recording findings of fact on appreciation of evidence and that it would not now be open to the appellant to resile from the position adopted by him and he is estopped from doing it. This contention raises the vexed question whether consent can confer jurisdiction on a court which lacks inherent jurisdiction. If the Court lacks inherent jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess, although they may constitute the Judge their arbiter, and be bound by his decision on the merits when these are submitted to him. Therefore, the failure on the part of the appellant to object to the High Court hearing an appeal under Clause 15 of the Letters Patent taking, oral evidence in respect of the amended pleadings would not clothe the Bench with jurisdiction to record fresh oral evidence and proceed to appreciate the same and record findings of facts. 14. Mr. De next contended that the contention now raised by the appellant is not open to him in view of the limited leave granted by this Court under Article 136 of the Constitution, While granting special leave to appeal against the judgment of the Division Bench of the High Court this Court made an order as under : Special leave is granted limited only to grounds Nos. 2 and 5 of the special leave petition. 15. Grounds Nos. 2 and 5, are as under : 2. For that the impugned judgment of the High Court is vitiated by manifest error in law that by granting amendment of plaint on July 11, 1975 which was originally filed on June 16, 1964 within 3 years from the purchase of the suit premises by the landlord, the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of sentence. Similarly, in Jagdev Singh and Anr. v. State of Punjab, 1973CriLJ1614 leave was limited to the applicability of the Probation of Offenders Act and accordingly this Court did not permit enlargement of the leave observing that the scope of the leave was confined to the limitations specified in the order granting special leave and will not be enlarged for considering the correctness of the conviction for the particular offence. It was, however, urged that where a certificate is granted by the high-Court under Article 133 specifying the question of law in respect of which the certificate is granted, this Court did not limit the scope of the appeal to the terms of the certificate. In Addagada Raghavamma and Anr. v. Addagada Chenchamma and Anr. [1964]2SCR933 , while negativing a preliminary objection to the effect that the certificate granted by the High Court under Article 133(1) must govern the scope of the appeal to-the Supreme Court for otherwise the said certificate would become otiose, the Court held that the terms of the certificate did not circumscribe the scope of the appeal and once a proper certificate is granted the Supreme Court undoubtedly has power as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arent Act by Section 4 of the West Bengal Premises Tenancy (Complete) Act, 1970, the decree would be unenforceable. The contention was that by amendment of pleading a suit when instituted was incompetent, should not have been rendered competent. From that springs the question about the court's jurisdiction to deal with, the suit subsequent to amendment of pleadings. If it is one compact ground it can be said that the contention raised herein, if not explicit, would certainly be implicit in the grounds limited to which special leave was granted and, therefore, we cannot refuse to entertain it. 19. It was lastly urged that ultimately whether the High Court should appreciate the evidence and record findings of fact or remand it to the trial Court is a matter within the discretion of the High Court and that if the High Court has exercised the discretion one way, this Court should not interfere with the same. It was further said that rules of procedure are not made for the purpose of hindering justice but for advancing substantial justice. It was, further said that the appellant tenant was given full opportunity to produce his evidence and had the benefit of appreciation of evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nued in possession because some proceedings may be pending or for some other reason. In such a situation, upon an application made by the tenant within a period of 60. days; from, the date of commencement of the Amending Act, the Court was required to set aside the decree for eviction. When appeal is pending it would be open to the tenant to raise the contention that the suit has become incompetent, but where the appeal is not pending or an execution application is pending and the tenant is still not physically evicted, it would be open to him to take advantage of the provisions contained in Section 17E. The present appellant appears to have made an application purporting to be Under Section 17E on 25th April 1970 in the Court of Additional Munsif at Sealdah. On this application notice was ordered to be issued to the other side. Notice of the application appears to have been refused by the respondent looking to the order sheet of the learned Munsif dated 9th September 1970. This was treated as proper service and the present appellant was directed to take steps to produce certain unpunched court-fee stamps. The appellant appears to have failed to take necessary steps and the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
