Balai Chandra Hazra Vs. Shewdhari
Jadav [1978] INSC 48 (21 February 1978)
DESAI, D.A.
DESAI, D.A.
BEG, M. HAMEEDULLAH (CJ) BHAGWATI, P.N.
CITATION: 1978 AIR 1062 1978 SCR (3) 147 1978
SCC (2) 559
CITATOR INFO :
D 1988 SC1531 (185)
ACT:
West Bengal Premises Tenancy Act, 1956, S. 13
Sub-S. 3-A--Whether retroactive operation of Sub-s.3A of S. 13 offends Art.
19(1)(f) of the Constitution of India.
Letters Patent Appeal under Clause
15--Whether the Court hearing an appeal under clause 15 of the Letters Patent
can grant permission to amend the pleadings at that stage, while working out
the mechanics consequent to a change in law.
Powers of the Appellate Court under Clause 15
of the Letters Patent of a High Court to record findings of an appreciation of
fresh additional evidence--Whether consent can confer jurisdiction to take
additional evidence and appreciate it on a Court which lacks inherent
jurisdiction.
Art. 136 of the Constitution of
India--Intervention by the Supreme Court, when leave limited to specific
grounds and appeal by certificate, scope explained.
West Bengal Premises Tenancy Act, 1956 S.
17-E--Scope of.
HEADNOTE:
The suit for eviction of defendant-appellant
from the ground floor of premises No. 16/lA, Ram Ratan Bose Lane, Shyambazar,
which the appellant was occupying as a tenant on a monthly rent of Rs. 37/- on
the ground that the respondent required the same for his own use and
occupation, ended in a decree in favour of the respondent and was confirmed in
appeal by the First Appellate Court. In the Second Appeal to the High Court at
Calcutta, the appellant sought permission to adduce additional evidence to the
effect that the requirement of the landlord stood satisfied because he had
recovered possession of four rooms on the first and second floors of the same
building. The appellant also contended that the suit filed by the
respondent-landlord was incompetent, it having been instituted within a period
of 3 years of the acquisition of his interest as landlord in the premises by
transfer and was accordingly hit by sub-section 3-A of s. 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 evic- tion was affirmed. Upon a certificate granted by the
learned Single Judge of the High Court the appellant preferred an 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 in view of
the Court's decision in B. Banerjee v. Anita Pan, [1975] 2 S.C.R. 774, sought
and obtained leave to amend the plaint and consequently the appellant defendant
filed additional written statement and 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 of his family ?
2. Is the plaintiff-respondent in possession
of any reasonably suitable accommodation? Oral and documentary evidence were
permitted to be adduced and thereafter the appeal was set down for hearing.
Ultimately the appeal was dismissed, affirm
the decree for eviction.
148 Allowing the tenant's appeal by
certificate, the Court HELD : 1. The retroactive operation of sub-section 3A of
s. 13 of the West Bengal Premises Tenancy Act, 1956 does not offend Art. 19 (1)
(f) on the ground of unreasonableness.
[153 F] B. Banerjee v. Anita Pan, [1975] 2
S.C.R. 774 reiterated.
2. While working out the mechanics consequent
upon upholding the validity of sub-section 3-A it was open to the Court hearing
the appeal under Clause-15 of the Letters Patent to grant permission to amend
pleadings. [153 G]
3. Ordinarily, an appellant is not entitled
in an appeal under clause-15 of the Letters Patent to be heard on points which
have not been raised before the Judge from whose judgment of appeal is
preferred. If in second appeal the findings of fact recorded by the first
Appellate Court are taken as binding, unless fresh additional evidence is
permitted to be led when again appreciation of evidence to record a finding of
fact would become necessary, that position is not altered, even if amendment of
pleadings is granted which puts into controversy some new facts allowed in
amended pleadings and therefore, the Court hearing the second appeal after
granting amendment could not take over the function of the trial court or the
first Appellate Court and undertake appreciation of evidence and record
findings of facts. That is not the function of the Court hearing the second
appeal under s. 100 as envisaged by the Code of Civil Procedure. The provision
contained in s. 103 which defines the power of the High Court to determine a
question of fact while hearing second appeal makes this clear. But, this power
of the Court is limited to evidence on record which again is sufficient to
determine an issue of fact necessary for disposal of the appeal and which has
not been determined by the lower appellate court or 'which has been wrongly
determined by such Court. [154 D-G]
4. When pleadings are amended at the stage of
the appeal under clause-15 Of the Letters Patent and fresh allegations of facts
are thus introduced in the controversy which necessitate additional evidence
being permitted, it would not be open to the Court to proceed to record
evidence 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. [154 G-H]
5. 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 0.41 R.27 of the Civil
Procedure Code. 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 admit
evidence which ought to have been admitted or the Appellate Court requires any
document to be produced or any witness to be examined to enable it to pronounce
the judgment. Nor would the situation be one which could be covered under the
expression "other substantial cause". [154 H, 155 A]
6. To avoid hardship to the plaintiff the
proper thing would be to grant leave to amend the pleadings and to give an
equal opportunity to the defendant to controvert if he so chooses what the
plaintiff contends by amended pleadings.
But once that is done immediately the
question of jurisdiction of the Court hearing the appeal under clause-15 of the
Letters Patent would arise and if the appeal was entertained against a judgment
rendered by the High Court in Second Appeal the limitations on the power of the
High Court hearing the Second Appeal will ipso facto limit and circumscribe the
jurisdiction of the Appellate Bench. If the High Court while hearing the Second
Appeal, where the amended pleadings substantially raise disputed questions of
fact which need resolution afresh after additional evidence, could not
undertake the exercise of recording evidence and appreciating it and recording
findings of fact, but could appropriately remand the case to the trial Court,
the Bench hearing appeal against the judgment in Second Appeal could not
enlarge its jurisdiction by undertaking that forbidden exercise. [155 C-F] 149
7. When a Bench of a High Court is hearing an
appeal preferred upon a certificate granted under Clause-15 of the Letters
Patent by a Single Judge of the High Court who by his judgment has disposed of
the of the Second Appeal, the Appellate Bench would be subject to the limitation
on its power and jurisdiction to appreciate or re-appreciate evidence and to
record findings fact which were never raised before the trial court or the
First Appellate Court as the pleadings were permitted to be amended by it and
the question was raised for the first time before it, to the same extent as the
High Court hearing the Second Appeal with constrains of Ss. 100 and 103 of the
Code. Admitting evidence is entirely different from appreciating it and acting
upon it. [155 F-G] Indrajit Pratap Sahi v. Amar Singh and Ors., Law Reports 50
I.A. 183, Surinder Kumar and Ors. v. Gian Chand & Ors, [1958] SCR 548, held
inapplicable.
8. If the Court lacks inherent jurisdiction,
no amount of consent can confer jurisdiction. 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.
[156 C, 157B] Ledgard v. Bull, Law Reports,
13 I.A. 134 at p. 145 Meenakshi Naidoo v. Subramaniya Sastri, Law Reports, 14
I.A. 160; discussed and applied.
9. When the leave is limited on certain
grounds it would not be appropriate to put in a narrow and grammatical
construction of the grounds as if construing a statute or some rule, regulation
or order of a public authority. As far as possible the grounds should not be
very strictly construed or should not be construed in such a manner as to make
the special leave grant under Art. self-defeating.
Attempt of the Court must be to find out what
was the grievance or contention that was being put forth before the Court which
appealed to the Court in granting special leave under Art. 136. [157 G. H, 158
A]
10. (a) Article 136 confers power on the
Supreme Court in its discretion to grant special leave from any judgment
decree, determination, sentence or order in any case or matter, passed or made
by any court or tribunal in the territory 'of India. Ordinarily once special
leave is granted it is against the judgment, decree etc. However, by practice
Supreme Court sometimes limits the leave to certain specific points. If the
leave is limited to specific points, obviously the whole case is not open
before the Court hearing the appeal.
[158 A-D] Nafe Singh & Anr. v. State of
Haryana, [1971] 3 SCC 934 Jagdev Singh & Anr. v. State of Punjab, A.I.R.
1973 SC 2427; referred to.
Addagada Raghavamma & Anr. v. Addagada
Chanchamma & Anr. [1964] 2 SCR 933; held not applicable.
10. (b) Once a certificate is granted this
Court undoubtedly has the power as a Court of Appeal to consider the
correctness of the decision appealed against from, every stand point whether on
questions of fact or law. It may in Its wisdom not interfere with the
concurrent findings of fact but there is no bar to its jurisdiction from
interfering with the same. But when an appeal is preferred under Art. 136 and
the leave is limited to the specific grounds the scope of appeal cannot be
enlarged so as to extend beyond what is permissible to be urged in support of
the grounds to which the leave is limited. Undoubtedly the scope of the appeal
would be limited to the grounds in respect of which the leave is granted but
the grounds must be broadly construed to ascertain the question raised therein
and not in a narrow or pedantic manner by literal interpretation of the
language used. [158 G. H, 159 A-B]
10. (c) Although an order of this Court
confining special leave under Art. 136, to certain points would imply a
rejection of it so far as other points are concerned, yet, this Court has a
constitutional power under Art. 137 of reviewing its own orders. This power may
in very exceptional cases consistently with 150 rules made under Art. 145 of
the Constitution be so exercised in the interest of justice as to expand the
leave itself subject to due notice to the respondents concerned and fair
opportunity to meet the results of an extension of grounds of appeal. [159 B-C]
10. (d) In the instant case, the
appellant-tenant was substantially contending that in view of the introduction
of Sub-Section 3-A of S. 13, the suit when instituted was incompetent and that
on a construction of S. 17E introduced in the parent Act by S. 4 of the West 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, this Court can not refuse to entertain it.
[159-C-E]
11. Sub-section (3A) of S, 13 bars a suit for
eviction on any of the grounds mentioned in clause& (f) and (ff) of Sub-
section (1) of S. 13 for a period of three years since the acquisition of
interest by landlord in the premises. The suit should, therefore, have been
filed three years after the purchase of the property by the respondent. The
respondent would have been then required to show as to whether he required the
premises and whether he had other reasonably suitable accommodation. The
enquiry would have been related to the time when the suit could have been
competently instituted. After focusing attention on this point, the trial Court
would appreciate evidence and record findings of fact which can be re-examined
by the first Appellate Court being the final court of facts. This very
opportunity was denied to the appellant by the Bench arrogating the
jurisdiction to itself to record evidence and to proceed to appreciate the same
and reach conclusions of fact which become final. Therefore, considerable
prejudice was caused to the appellant by the procedure followed by the Court
and this Court will be amply justified in interfering with it and remand the
same. [159 G-H, 160 A-B]
12. (a) By S. 17E power was conferred upon
the Court to set aside the decrees passed in suits brought by transferee-
landlord within three years from the date of the date of transfer. 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 S. 17E. [160
C-E]
12. (b) The provision contained in S. 17E
provides an additional remedy covering classes of cases of tenants against whom
decree for eviction was made but there was no pending appeal against the
decree. If the tenant applies under S. 17E he could get relief on the only
ground that the decree was on the ground mentioned in Clause (f) of Sub-
section (1) of S. 13 and not the other grounds because relief was sought to be
granted by the provisions contained in S. 17E to those tenants against whom the
decree for eviction was made under 8.13(1)(f). Therefore, it could not be said
that once a specific remedy under S. 17E is provided for the:benefit of tenant
under a decree for eviction on the ground mentioned in S. 13 (1) (f), that is
the only way and no other in which he could get relief. If so, his appeal would
become incompetent. Remedy under S. 17E is an additional remedy. More
particularly it appears for the benefit of these tenants against Whom decree
for eviction was made under S.13(1)(f) and appeal by whom was not pending so
that they could protect themselves against eviction, by landlords whose suits
had become incompetent in view of the provisions contained in Sub-section (3A)
of S. 13. [160 G, 161 A-C]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1138 of 1977.
(From the Judgment and Order dt. 12-8-76 of
the High Court of Judicature at Calcutta in Letters Patent No. 184 of 1974.)
151 A. K. Sen and Sukumar Ghosh for the Appellant.
Niren De and D. N. Mukherjee for the
Respondent.
The Judgment of the Court was delivered by
DESAI, J.-This appeal by special leave arises from a suit filed by the
plaintiff respondent for eviction of defendant appellant from the ground floor
of premises No. 16/l A, Ram Ratan Bose Lane, Shyambazar, which the appellant
was occupying as a tenant on a monthly rent of Rs. 37/-, on the ground that the
respondent required the same for his own use and occupation. The suit ended in
a decree in favour of the respondent and was confirmed in appeal by the
Additional District Judge. The appellant thereupon preferred Second Appeal to
the High Court at Calcutta. In the second appeal the appellant sought
permission to adduce additional evidence to the effect that the requirement of
the landlord stood satisfied because he had recovered possession of four rooms
on the first and second 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 and 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 of his family?
2. Is the plaintiff-respondent in possession
of any reasonably suitable accommodation?" Oral and documentary evidence
was permitted to be adduced and thereafter the appeal was set down for hearing.
Ultimately the appeal was dismissed affirming
the decree for eviction. Hence the present appeal by special leave.
It is an admitted position that the building
of which suit promises form part was purchased by the landlord on October 1,
1963 and notice dated June 16, 1964 terminating the tenancy was served upon the
tenant. The landlord filed title suit No. 198 of 1964 on August 27, 1964,
against the tenant.
152 By the amending Act 34 of 1969 West
Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the 'parent Act')
was amended. Clause (f) of sub-s. (1) of s. 13 of the parent Act was substituted
by s. 4 of the Amending Act as under :- "(f) subject to the provisions of
sub-section (3A) and section 13A, where the premises are reasonably required by
the landlord for purposes of building or rebuilding or for making thereto
substantial additions o r alterations, and such building or rebuilding, or
additions or alterations, cannot be carried out without the premises being
vacated;
(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;" A new sub-s. (3A)
was added after sub-s. (3) of s. 13 as under "(3A) where a landlord has
acquired his interest in the premises by transfer, no suit for the recovery of
possession of the premises on any of the grounds mentioned in clause (f) or
clause (ff) of sub-section (1) shall be instituted by the landlord before the
expiration of a period of three years from the date of his acquisition of such
interest Provided that a suit for the recovery of the possession of the
premises may be instituted on the ground mentioned in clause (f) of sub-
section (1) before the expiration of the said period of three years if the
controller, on the application of the landlord and after giving the tenant an
opportunity of being heard, permits, by order, the institution of the suit on
the ground that the building or rebuilding, or the additions or alterations, as
the case may be, are necessary to make the premises safe for human
habitation." By s. 13 of the Amending Act, the amendments in the parent
Act introduced by ss. 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-s. (3A)
introduced in s. 13 was challenged before a Division Bench of the Calcutta High
Court in Sailendra Nath v. S. E. Dutt.(1) The High Court voided only that part
of sub-s. (3A) of s. 13 by which it was made retroactive by applying it to
pending suits and appeals as being ultra vires of Art.
19(1)(f) of the Constitution on the ground of
unreasonableness. The matter came before this Court and in B. Banerjee v. Anita
Pan, (2) Krishna Iyer, J. speaking for the majority observed as under (1)
A.I.R. 1971 Cal. 331.
(2) [1975] 2 S.C.R. 774.
153 "We see in the amendment Act no
violation of Art. 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 called independently considering the question'. We
discern nothing substantially different in the analysis or approach to merit
review of ou r result. We hold s. 13 of the Amendment Act valid and repel the
vice of unreasonableness discovered in both the reported rulings of the High
Court." While upholding constitutional validity of sub-s. (3A) of s. 13,
in order to work out the mechanics of the application of amending provisions to
pending actions, with a view to avoiding multiplicity of litigation as well as
protraction of litigation it was suggested that the plaintiff landlord may put
in fresh pleadings wherever the suit is pending and the tenant should be given
an opportunity to fit,-- his written statement and the Court should dispose of
the matter after giving both sides the right to lead additional evidence. It
was observed that it would certainly be opened to the appellate court either to
take evidence directly or to call for a finding. Expeditious disposal of
belated litigation will undoubtedly be a consideration with the Court in
exercising this discretion. The proviso to sub-s. (3A) can also be complied
with if the plaintiff gets the permission of the Rent Controller in the manner
laid down therein before filing his fresh pleadings.
Pursuant to the decision rendered by this
Court in B. Banerjee's case (supra), the High Court in the pending Letters
Patent Appeal permitted the plaintiff to amend the plaint whereupon the
defendant filed additional written statement and fresh issues were framed as
hereinbefore set out and after permitting the parties to lead oral and
documentary evidence the appeal was disposed of as hereinabove mentioned.
Mr. Niren De appearing for the respondent at
one stage attempted to contend that to the extent sub-s. (3A) of s. 13 is made
retroactive it is ultra vires article 19 (1) (f) and thus he wanted to reopen
the controversy settled by this Court in B. Banerjee's case. We were not
persuaded by any such submission and we accept the ratio in B. Banerjee's case
that the retroactive operation of sub-s. (3A) of s. 13 does not offend article
19 (1) (f) on the ground of unreasonableness.
Mr. A. K. Sen learned counsel who appeared
for the appellant vigorously contended that the Bench hearing appeal under
clause 15 of the Letters Patent has no jurisdiction to take fresh evidence even
if it permits amendment of the pleadings. While working out the mechanics
consequent upon upholding the validity of sub-s. (3A) it was open to the Court
hearing the appeal under clause 15 of the Letters Patent to grant permission to
amend the pleadings. By a catena of decisions Order 6, Rule 17 of the Code of
Civil Procedure 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 11-211SCI/78 154 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 s. 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) the decision being contrary to law or to some
usage having the force of law; (b) the decision having failed to determine some
material issue of law or usage having the force of law; (c) a substantial error
or defect in the procedure provided by the Code or by any other law for the
time being in force, which may possibly have produced error or defect in the
decision of the case upon the merits. It was submitted that if this is the
peripheral limit of jurisdiction of a court hearing second appeal, it is just
not conceivable that a Bench hearing an appeal under clause 15 of the Letters
Patent upon a certificate granted by the single Judge could have a wider
jurisdiction than the court hearing the second appeal.
There is a near consensus amongst the various
High Courts that ordinarily an appellant is not entitled in an appeal under
clause 15 to be heard on points which have not been raised before the judge from
whose judgment the appeal is preferred. Now, if in second appeal the findings
of fact recorded by the first appellate court are taken as binding unless fresh
additional evidence is permitted to be led when again appreciation of evidence
to record a finding of fact would become necessary, that position is not
altered even if amendment of pleadings is granted which puts into controversy
some new facts alleged in amended pleadings and therefore the Court hearing the
second appeal after granting amendment could not take over the function of the
trial court or the first appellate court and undertake appreciation of evidence
and record finding,, of facts. That is not the function envisaged by the Code
of the Court hearing second appeal under s. 100. This becomes crystal clear
from the provision contained in s. 103 which defines the power of the High
Court to determine a question of fact while hearing second appeal. But this
power of the Court is limited to evidence on record which again is sufficient
to determine an issue of fact necessary for disposal of the appeal and which
has not been determined by the lower appellate Court or which has been wrongly
determined by such court. When pleadings are amended at the stage of the appeal
under clause 15 of the Letters Patent and fresh allegations of facts are thus
introduced in the controversy which necessitate additional evidence being
permitted it would not be open to the Court to proceed to record evidence and
to appreciate the evidence and record findings of fact, a function which even
ordinarily is hot undertaken by the High Court bearing 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 155 41, r. 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.
Not would the situation be one which could be
covered under the expression "other substantial cause". Once pleading
are permitted to be 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 appropriately to be undertaken by the trial court or at the most
the first appellate court but not the High Court hearing the second appeal or
an appeal under clause 15 of the Letters Patent. It is not for a moment
suggested that at the stage at which leave to amend pleadings has been granted
the High Court was not competent to grant it. In fact, in an identical
situation in B. Banerjee's case (supra) 'this Court had in terms indicated that
to avoid hardship to the plaintiff landlord the appropriate thing would be to
grant leave to amend the pleading and five an equal opportunity to the
defendant to controvert if lie so chooses what the plaintiff contends by
amended pleading.
But once that is done immediately the
question of jurisdiction of the court hearing the appeal under clause 15 of the
Letters Patent would arise and if the appeal was entertained against the
judgment rendered by the High Court in second appeal the limitations on the
power of the High Court hearing the second appeal will ipso facto limit and
circumscribe the jurisdiction of the appellate Bench. If the High Court while
hearing second appeal, conceding that it could have allowed amendment of
pleading, where the amended pleadings substantially ;raise disputed questions
of fact which need resolution afresh after additional evidence, could not
undertake the exercise of recording evidence and appreciating it and recording
findings of fact, but would appropriately remand the case to the trial court,
the Bench hearing the appeal against the judgment in second appeal could Pot
enlarge its jurisdiction by-undertaking that forbidden exercise. It would,
therefore, appear that when a Bench of a High Court is hearing an appeal
;preferred upon a certificate granted under clause 15 of the Letters Patent by
a single judge of the High Court who by his judgment has disposed of the second
appeal the appellate bench would be subject to the limitation on its power and
jurisdiction to appreciate or re-appreciate evidence and to record finding of
fact which were never raised before the trial court or the first appellate
court as the pleadings were permitted to be amended by it and the question was
raised for the first time before it, to the same extent as the High Court
hearing second appeal with constraints of ss. 100 and 103 of the Code. It must
be distinctly understood that admitting evidence is entirely different from
appreciating it and acting upon it. The Judicial Committee of the Privy Council
in Indrajit Pratap Sahi v. Amar Singh & Ors.,(1) was concerned with the
ambit of jurisdiction of the appellate court to admit evidence under Order 41,
r. 27. It was held that the jurisdic- (1) Law Reports 50 I.A. 183.
156 tion 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 & Ors. v. Gian Chand & Ors.(1) But that has no relevance
to the situation under discussion here.
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 jurisdiction no amount of
consent can confer jurisdiction. This is settled by a long line of decisions
commencing from Ledgard v. Bull, (2) wherein the Judicial Committee was
examining the question whether a District Judge could entertain a suit
complaining infringement of patent not upon institution before him but by
transfer from the Court of the subordinate Judge where it was instituted.
It was accepted that if the suit was
instituted in the court of the District Judge, the Distt. Judge had
jurisdiction to entertain it but a very narrow and limited question was
examined whether the Distt. Judge could entertain it on transfer from the Court
of the Subordinate Judge. It was also pointed out that the defendant who had
raised a contention as to the jurisdiction of the Distt. Judge to hear the suit
had given his positive consent to the transfer of the suit. Even then the
Judicial, Committee held as under :
"The District Judge was perfectly
competent to entertain and try the suit, if it were competently brought, and
their Lordships do not doubt that, in such a case, a defendant may be barred,
by his own conduct, from objecting to irregularities in the institution of the
suit. When the Judge has no inherent jurisdiction over the subject-matter of a
suit, the parties cannot, by their mutual consent, convert it into a proper
judicial process, although they may constitute the Judge their arbiter, and be bound
by his decision on the merits when these are submitted to him'.
Consent in such a situation could not be
interpreted as waiver of the objection nor could it confer jurisdiction where-
the Court inherently lacked jurisdiction to try the suit.
This very principle was reaffirmed in
Meenakshi Naidoo V. Subramamya Sastri,(3) wherein the High Court in appeal
against the order of the District-Judge had set aside the order of the Distt.
Judge appointing the appellant on the Committee of the Pagode in the Madras
Presidency. When the matter was before the High Court it was never (1) [1958]
S.C.R. 548.
(2) Law Reports 13 I.A. 134 at p. 145.
(3) Law Reports, 14 I.A. 160.
157 contended that the appeal was incompetent
and such a contention was raised before the Judicial Committee for the first
time. Following the decision in Ledgard v. Bull (supra), it was held that when
the Judge has no inherent jurisdiction over the subject matter of a suit, the
parties cannot by their mutual consent convert it into a proper judicial
process, 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 cloth the Bench with jurisdiction to record
fresh oral evidence and proceed to Appreciate the same and record findings of
facts.
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." 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 originality filed on June 16, 1964 within 3 years from the
purchase of the suit premises by the landlord, the suit can be taken out of the
mandatory prohibition laid down in sub-section (3A) of section 13 of the W.B.
Premises Tenancy Act.
5. For that the impugned judgment is vitiated
by a manifest error of law and the learned judges failed to take into
consideration the provisions of section 17E of the W.B. Premises Tenancy Act
introduced by the W.B. Premises Tenancy (Amendment) Act, 1970 to the effect
that even the decrees passed in earlier suits in contravention of the
provisions of sub-section (3A) of section 13 of the Act should be
vacated." A very narrow, literal and verbal interpretation of grounds Nos.
and 5 may prima facie indicate that the question in terms now raised would not
be covered by ground either 2 or 5.But it would not be proper to put tomorrow
an interpretation on the language employed in grounds nos. 2 and 5. When leave
is limited to certain grounds it would no the appropriate to put a very narrow
and grammatical construction of the grounds as if we were construing a statute
or some rule, regulation or order of a public authority. More often it is our
experience while hearing applications for special leave that grounds set out in
special leave application are overlapping and fairly often repeated, and even
occasionally vague. Therefore, as far as 158 possible, the grounds should not
be very strictly construed or should not be construed in such a manner as to
make the special leave grant-ed under Article. 136 self-defeating.
Attempt of the Court must be to find out what
was the grievance or contention that was being put, forth before the Court
which appealed to the Court in granting special leave under Article 136.
Article 136 confers power on this Court in its discretion to grant special
leave from any judgment, decree, determination, sentence or order in any case
or matter, passed or made by any court or tribunal in the territory of India.
Ordinarily once special leave is granted it is against the judgment, decree,
etc. However, by practice this Court sometimes limits the leave to certain
specific: points. If the leave is limited to specific points, obviously the
whole case is not open before the Court hearing the appeal. In Nafe Singh &
Anr. v. State of Haryana,(1) this Court declined to examine the question
whether on evidence the case was proved to the satisfaction of the Court,
because special leave was limited to the question of sentence. Similarly, in
Jagdev Singh & Anr. v. State of Punjab,(-) leave was limited to the
applicability of the Probation of Offienders 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 & Anr. v.
Addagada Chenchamma & Anr.(3), while negativing a preliminary objections 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 court of appeal to,
consider the correctness of the decision appealed against from every stand
point whether of questions of fact or law.
It was held that if the certificate is good,
the provisions of Article 133 did not confine the scope of the appeal to the
certificate. This decision cannot help the appellant because when a certificate
is granted under Article 133 (1) as. it stood prior to the Constitution
(Thirtieth Amendment) Act, 1972, an appeal lay to the Supreme Court from any
judgment, decree or final' order, if the High Court certified the case falling
under clauses (a), (b) or (c).
Once a certificate is granted this Court
undoubtedly has the power as a Court of Appeal to consider the correctness of
the decision appealed against from every standpoint whether on questions of
fact or law. It may in its wisdom not interfere with the concurrent findings of
fact but there is no bar to its jurisdiction from interfering with the same.
But when an appeal is preferred under Article
136 and the leave is limited to the specific grounds, the scope of appeal
cannot be (1) [1971] 3 S.C.C. 934.
(2) A.I.R. 1973 S.C. 2427.
(3) [1964] 2 S.C.R. 933.
159 enlarged so as to extend beyond what is
permissible to be urged in support of the grounds to which the leave is
limited. Undoubtedly, therefore, the scope of the appeal would be limited to
the grounds in respect of which the leave is granted, but having said this, it
must be made distinctly clear that the grounds must be broadly construed to
ascertain the real question raised therein and not in it narrow or pedantic
manner by literal interpretation of the language used.
Again, it must be borne in mind that,
although, an order of this Court confining special leave under article 136 to
certain points would imply a rejection of it so far as other points are
concerned, yet, this Court as a constitutional power under article 137 of reviewing
its own order. This power may, in very exceptional cases, consistently with,
rules made under article 145 of the Constitution, be so exercised, in the
interests of justice, as to expand the leave itself subject to due notice to
the respondents concerned that fair opportunity to meet the results of an
extension of grounds of appeal., The appellant tenant was substantially
contending that in view of the introduction of sub-section (3A) of s. 13, the
suit when instituted was incompetent and that on a proper construction of s.
17E introduced in the parent Act by s. 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.
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 evidence by a Bench of two judges of the High Court and that it would be
paying undue and undeserved respect to the rules of procedure to remand the
matter at this stage. Once the amendment is allowed, the basic approach to the
suit would undergo a change. Sub-section (3A) of s. 13 bars a suit for eviction
on any of the grounds mentioned in clauses (f) and (ff) of sub-s. (1) of s. 13
for a period of three years since the acquisition of interest by landlord in
the premises. The suit should, therefore, have been filed three years after the
purchase of property by the respondent. The respondent would have been then
required to show as to whether he required the premises and whether he had
other reasonably suitable accommodation. The enquiry would have been related to
the time when the suit could have been competently instituted. After focusing
attention on this 160 point, the trial court would appreciate evidence, and
record findings of fact which can be reexamined by the first appellate court
being the final court of facts. This very opportunity was denied to, the
appellant by the Bench arrogating the jurisdiction to itself to record evidence
and to proceed to appreciate the same and reach conclusions of fact which
become final. Therefore, considerable prejudice was caused to the appellant by
the procedure followed by the court and this Court will be amply justified in
interfering with the same. Ile remand, therefore, is inevitable.
Before concluding the judgment, we must
advert to one contention raised by Mr. De for the respondent. It was urged that
the appellant tenant leaving failed to take advantage of s. 17E introduced-by
the West Bengal Premises Tenancy Amendment (Complete) Act, 1970, it is not open
to him to challenge the decree of eviction passed against him.
By s. 17E power was conferred upon the court to
set aside certain decrees passed in suits brought by transferee landlords
within three years of the date of transfer. In fast this was the necessary
corollary of the introduction of sub-s. (3A) in s. 13 and making it
'retroactive. There may be tenants against whom decree- for eviction was made
at the instance of transferee landlords whose suits would be otherwise
incompetent in view of sub-s. (3A.) of s. 13.
Now, it may be that even though the decree
for eviction was passed by the Court, the tenant may have continued 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 s. 17E. The present appellant appears
to have made an application purporting to be under S. 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 un punched
court-fee stamps.
The appellant appears to have failed to take
necessary steps and the application was rejected for want of prosecution.
It was contended that once the appellant
applied under S. 17E for setting aside the decree of eviction, the decree has
become binding and it is not open to him to question the correctness of the
decree. There is no merit- in this connection because the appeal in which the
decree was questioned was still pending. The provision contained in S. 17E
provides an additional remedy covering classes of cases of tenants against whom
decree for eviction was made but there was no pending appeal against the
decree. If the submission of Mr. De is accepted, the provisions contained in S.
17E would be rendered nugatory. We specifically asked Mr. De a question as to
what would 161 be the position where a decree for eviction is made on two
grounds, one under s. 13(1) (f) and the other under other provisions of s. 13
and the appeal of the tenant is pending.
Would the appeal become incompetent if
the-.tenant does not apply under s. 17E ? If the tenant applies under s. 17E he
can get relief on the only ground that the decree was on the ground mentioned
in clause (f) of sub-s. (1) of s. 13 and not the other grounds because relief
was sought to be granted by the provisions contained in s. 17E to those tenants
against whom decree for eviction was made under s. 13(1) (f). Would the appeal
in such a situation become incompetent in part and remain competent for the
other part? Therefore, it could not be said that once a specific remedy under
s. 17E is provided for the benefit of tenants under a decree for eviction on
the ground mentioned in s. 13(1) (f), that is the only way and no other in
which he could get relief. If so, his appeal would become incompetent. Remedy
under s. 17E is an additional remedy.
More particularly it appears for the benefit
of those tenants against whom decree for eviction was made under s. 13 (1) (f)
and appeal by whom was not pending so that they could protect themselves
against eviction by landlords whose suits had become incompetent in view of the
provisions contained in sub-s. (3A) of s. 13.
Accordingly, this appeal is allowed and the decree
for eviction made by all the Courts against the appellant is set aside and the
suit is remanded to the trial court to proceed further from the stage after
amendments of pleadings were granted by the High Court and the relevant issues
were framed pursuant to the amended pleadings. In the circumstances of this
case there shall be no order as to costs of appeal in this Court.
S.R. Appeal allowed : Case remanded.
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