# ) - ) BALAI CHANDRA HAZRA v. SHEWDHARI JADAV

- **Citation:** [1978] 3 S.C.R. 147
- **Court:** Supreme Court of India
- **Decided:** 1978-02-21
- **Case number:** Civil Apf"'al No. 1138 of 1977
- **Bench:** M. H. Beg, P. N. Bhagwati, D. A. Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/balai-chandra-hazra-v-shewdhari-jadav-7464
- **Pages:** 15

## Headnote

B
West Bengal Pre1nises Tenancy Act, 1956, S. 13 Sub-S. 3-A-Whether retroactive operation of Sub-s.3A of S. 13 offends Art. 19(1)(1) of the Constitution
of lndia.
Letters Patent Appeal under Clause IS-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 ad<litionaT evidencel-f'hether consent can confer jurisdiction to take additional evidence and appre-
::iale it on a Court lf,•hich~ lacks inherent jurisdiction.
Art. 136 of the Constitution of India-Intervention by the Supreme Court,
c
when leave limited to specific grounds and appeal by certificate, scope explained.
D·
West Bengal Premises Tenancy Act, 1956 S. 17-E-Scope of.
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
uccupying as a tenant on a monthly rent of Rs. 37 /- on the ground that the
respondent :r_equired 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 hy 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 eviction was affirmed. Upon a certificate granted by the learned Single Judge of
the lfigh 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 lligh 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 plaintiffrespondent 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 affirmthe decree for eviction.
'
E
H
148
SUPREME COURT REPORTS
[J 978] 3 S.C.R.
A
Allowing the tenant's appeal by certificate, the Court
.B
c
D
.E
F
G
H
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 consequeAt
upon
upholding
the
validity of sub-section 3-A it ·was open to the Court heafing 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

## Text

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)
-
)
BALAI CHANDRA HAZRA
v.
SHEWDHARI JADAV
February 21, 1978
147
[M. H. BEG, CJ., P. N. BHAGWATI AND D. A. DESAI, JJ.]
B
West Bengal Pre1nises Tenancy Act, 1956, S. 13 Sub-S. 3-A-Whether retroactive operation of Sub-s.3A of S. 13 offends Art. 19(1)(1) of the Constitution
of lndia.
Letters Patent Appeal under Clause IS-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 ad<litionaT evidencel-f'hether consent can confer jurisdiction to take additional evidence and appre-
::iale it on a Court lf,•hich~ lacks inherent jurisdiction.
Art. 136 of the Constitution of India-Intervention by the Supreme Court,
c
when leave limited to specific grounds and appeal by certificate, scope explained.
D·
West Bengal Premises Tenancy Act, 1956 S. 17-E-Scope of.
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
uccupying as a tenant on a monthly rent of Rs. 37 /- on the ground that the
respondent :r_equired 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 hy 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 eviction was affirmed. Upon a certificate granted by the learned Single Judge of
the lfigh 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 lligh 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 plaintiffrespondent 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 affirmthe decree for eviction.
'
E
H
148
SUPREME COURT REPORTS
[J 978] 3 S.C.R.
A
Allowing the tenant's appeal by certificate, the Court
.B
c
D
.E
F
G
H
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 consequeAt
upon
upholding
the
validity of sub-section 3-A it ·was open to the Court heafing 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 'vhich 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 appeil.l
makes this clear. But, this power of the Court is limited to evidence on record
which again is sufficient to determin·e an issue of fact necessary for disposal of
the appea1 and which ·bas 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 stage1 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 appe<il 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 aamined to enable it to pronounce the judgtnent.
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 thin~ would be to grant le_ave
to amend the pleadings and to give an equal opportunity to the defendant
to
controvert if he so chooses what the plantiff 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 Jiqiit 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 evidt.·nce
and appreciating it and recording findings of fact,
but
could
appropriately
remand the case to the trial Court, the Bench hearin~ appeal against the judgment in Second Appeal could not enlarge its jurisdiction by undertakiiig that
forbidden exereise. [155 C-F]
--
)
··•
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B. C. HAZRA V. S. JADAV
149
7. '\Vben a Bench of a High Court is hearing an appeal preferred upon a
A
certificate granted under C1ause~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 \vould be subject to the limitation, on its po\ver and jurisdction
to appreciate or re~appreciate evidence and to record findings of fact which ~ere
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
ti.me before it, to the same .extent as the High Court hearing the Second Appeal
\rith··constrains of Ss. 100 and 103 of the Cod·e.
Admitting evid'ence is entire~
B
ly different from appreciating it and acting upon it.
[155 F-G]
lndrajit Pratap Sahi v. Amar Singh .and' OrJ., Law RePorts 50 I.A.
183. S11rinder Kumar and Ors. v. Gian Chand & Ors, [1958] SCR 548,
held inapplicable.
8. H the Court lacks inherent jurisdiction, no amount of cons_ent 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
C
evidence in respect of the amended pleadings would not clothe the Benc_h with
jurisdiction to. record fresh oral evidence and proceed to appreciate the same
and record findings of facts.
[156 C, I 57BJ
Ledpard v. Bull, Law Reports, 13 I.A. 134 at p.
145
Mee11akshi
Naidoo v. Subrc.n1aniva Sastri, Law Reports, 14 I.A.
160; discussed
and applied.
·
9. When the leave is limited on certain grmmds it would not be appropriate
to put in a narrow and grammatical construction of the grounds as if construing
D
a statute or some nlle, 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 granted under Art. 136
self-defeating. Attempt of the Cou_rt must be to find out what was the grievence
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
E,
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
judgn1ent, decree etc.
Ho\vever, 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-BJ
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.
F
Addagada Ra[?liavamma & Anr. v. Addagada Chancha1nma &- Anr.
[1964J 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
fr~m, every ~tand point. whether on questions of fact or law. It may in its
WlSdom not interfere with the concurrent findings of fact but there is no bar to
its jJrisdiction from interfering with the same. But when an appeal is preferred
G
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 111 support of the grounds to which the leave' is limited. Undoubtedly the
scope ot 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 narrO\V or pedantic manner by literal interpretation of the language used.
[158 G. H, 159 A-BJ
10. ( c) Although an order of this Court confining special leave under Art.
H
136, to certain po.ints would imply a ~eje~tion of it so far as Other points are
~o!1c;erned, yet. this Cot~rt has a const:tut1onal powe~ under Art. 137 of review-
~g its own orders. This power may in very exceptional cases consistently with
l))
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150
SUPREME COURT REPORTS
[1978] 3 S.C.R.
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-CJ
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 proper construction of S. 17E introdueetl 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 que.cition about the court's
jurisdiction to deal with the suit subsequent to amendment of pleadings. H it is
one compact ground it can be said that the contention raised herein. if not
~xplicit, would certainly be implicit in the grounds limited to which special
1.eave was granted and, therefore, this Court can not refuse to entertain it.
[159-C-EJ
11. Sub-section .(3A) of_&-13 bars a suit for eviction on any of the grounds
mentioned in clauses (f) and (ff) of Sub-section (I) 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 b~
1
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. ! 7E. [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. H 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 (I) of S. 13 nnd 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
S.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
grounU 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 inOOmpetent.
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 snits had become incompetent in view of the provisions contained in Sub-section (3A) of S. 13. [160 G, 161 A-CJ
CIVIL APPELLATE JURISDICTION : Civil Apf"'al 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.)
..
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)
I
....
B. c. HAZRA v. s. JADAV (Desai, J.)
A. K. Sen and Sukum& Ghosh for the Appellant.
Niren De and D. N. Mukherjee for the Respondent.
The Judgment pf the Court was delivered by
151
A
DESAI, J.-This appeal by special leave arises from a suit filed by B
the plaintiff respondent for eviction of defendant appellant from the
ground floor of premises No. 16/IA, 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 ill favour
of the respondent and was confirmed in appeal by the Additional
:l>istrict 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.
c
A contention was also raised by him that the suit filed by the landlord
was Incompetent, it having been instituted within a period o( three
years of the acquisition of his interest as landlord in the premises by
D
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 aflirmf'...d.
Upon a certificate granted by the learned
single Judge of the High Court the appellant preferred appeal under E
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 ow'n 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.
F
G
It is an admitted position that the building of which suit premises
form part was purchased by the landlord on October 1, 1963 and notice
H
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.
A
B
c
152
SUPREME COURT REPORTS
[1978] 3 S.C.R.
By the amending Act 34 of 1969 West Bengal Premises Tenancy
Act, 1956 (hereinafter referred to as the 'parent Act') was amended.
Gause. (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
sec!ion l3A, where the premises are reasonably required
by the landlord for purposes of buildil1g or re-building or
for making thereto substantial additions or alterations, and
such building or re-building, 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 tht 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 :
D
"(3A) where a landlord has acquired his interest in the
E
F
G
H
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 premis·es may be instituted on the ground mentioned
i'n 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 re-building, 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
pendi'ng at the date of the commencement of tlie
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.(') 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 umeasonableness. 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.LR. 1971 Cal. 331.
(2) (1975] 2 S.C.R. 774.
•
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•
B. c. IIAZRA v. s. JADAV (Desai, J.)
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. Pron:zila 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 our result.
We hold s. J 3 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,
A
B
in order to work out the mechanics of the applicatio'n of amending
provisions to pending actipns, 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 pendC
ing and the tenant should be giveh an opportunity to fil·o 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 wi.h the Court in exercising this discretion.
The proviso to sub-s. (3A) can also be comD
plied with if the plaintiff gets the permission of th•o Rent Controller in
the· manner laid down therein before filing his fresh pleadings.
Pursuant to the decisioh rendered by this Court in B. Banerjee's
case (supra), the High Court in the pending Letters Patent Appeal
permitted the plaintiff to amond the plaint whereupon the defendant
filed additional written statement and fresh issues were framed as hereE
inbefore set out and after permitti'ng the parties to lead
oral
and
doeumehtary 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 uitra vires article l9(l)(f) and thus he wanted to reopen the
F
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. Baner-
. jee's case that the retroactive operation of sub-s. (3A) of s. 13 does
riot offend article 19(1) (f) on the ground of unreasonableness.
Mr. A. K. Seri 1earned 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 npon 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
11-2!!SCI/78
G
fl
A
B
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G
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154
SUPREME COURT REPORTS
[1978] 3 S.C.R·
taking and appreciating evidence and recording findings of facts on
issues that may_have to be determiued 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. l 00 prescribes the peripheral
limits of the Court's jurisdiction while hearing a second appeal. Section 100 as it stood at the relevan! 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 soine usage having the force
o~ law; (b) the decision having failed to determine some material issue
of Jaw or usage having the force of law; (c) a substantial error or defect
in the procedure provided by the Code or by any otl;er 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
s<cond 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 concensus 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 ,df fact recorded by the first appellate couif are taken as
binding un!ess 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 po_wer of the High Court to determine a
qnestion of fact while hearing. second appeal.
But this power
of
the Court is limited to evidence on record which again is sufficient
to determi~e an issue of fact necessary for disposal of the appeal and
which has not been determind 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 arc thus introduced in the controver<'J wl1ich 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
appea], milch 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
question> of fact, the situation would not be one governed by Order
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41, r. 27.
At that stage it could not be said that the appellate court is
permitling production Of "additional evidence, oral or documentary on
!be ground that the court from whose decree the appeal is preferred
has refused to adduce evidence which ought to have been admitted or
A
the appellate court requires any documents to be produced or any
witness to be .~xamined to enable it to pronounce judgment.
Nor
would the situation be one which could be covered under the expresB
sion "other substantial cause".
Once pleading
are permitted
to
b~ amended which bring fnto focus altogether new or fresh disputed
questions of fact which have to be resolved on additional evidence that
wouJ.d. be necessary to be led, the function is one of appreciation of
evidence more appropriately to be undertμken by the trial court
or
at the most the first appellate court but not the High Court hearing the
~econd 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
c
it.
ln fact, in an identical situation in B. Baner;ee's case (supra)
this Court had in terms indicated that to avoid hardship to the plaintiff landlord tbe appropriate thing would be to grant leave to amend
the pkading and give an equal opportunity to the defendant to controvert if be so chooses what the plaintiff contends by amended pleading,
But once lhat is done immediately the question of jurisdiction
of the court h~aring 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 tbe limitations on the power
of the Higll Court hearing the second appeal will ipso facto limit and
circumscribe the jurisdiction of the appellate Bench.
If the
High
Court while 11earing second appeal, conceding that it could have al!owcd amendment of pleading, where tbe amended pleadings substantially
raise disputed questions of fact which need resolution afresh after
additional evidence, could not undertake the exercis'e of recording
evidence and appreciating it and recording findings of fact, but could
appropriately remand the case to the trial court, the Bench hearing the
appeal against the judgment in second appeal could not enlarge
its
jurisdiction b~undertaking that forbidden exercise.
It would, therefore, appear that when a Bench of a High Court is bearing an appeal
preferred upon a certificate granted under clause 15 of tbe Letters
Patent by a single judge of" tbe High Court who by bis judgment has
disposed of the second appeal tbe appellate bench would be subject
to the limitation on its power and jurisdiction to appreciate or reappreciate evidence and to record findings of fact which were never
raised before the trial court or the first appellate court as tbe pleadings w,re permitted fo be amended by it and tbe question was raised
for the first time before it, to tbe same extent as the High Court hearing second appeal with constraints of ss. 100 and 103 of tbe 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 Tndrajit Pratap Sahi v. Amar Singh & Ors.,(')
was concerned with tbe ambit of jurisdiction of tbe appellate court to
admit evidence under Order 41, r. 27.
It was held that tbe jurisdic-
(]) Law Report' 50 I.A. 183.
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(1978] 3 s.c.Rtio.n can be exercised at the instance of a party and the Jndicial Comllllttee has unrestricted power to admit documents where sufficient
!!f?~nds have, been .s~oY:'n for the!r h!lving not been produced at the
llllhal stage 01 the lit1gal!on.
ThIS view was affirmed by this Court
in Surinder Kumar & Ors. v. Gian Chand & Ors.(') 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 recordJng 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
iiuisdiction no amount of consent can confer jurisdiction.
This is
settled by a long line of decisions commencing
from
Ledgard
v.
Bull,(2) wherein the Jndicial "Cpmmittee was examining the question
whether a District Jndge could entertain a suit complaining infringe~
ment of patent not upon institution before him but by transfer from
the Court of the subordinate Jndge where it was instituted.
It was
accepted that if the suit was instituted in the court of the District Judge,
the Distt. Jndge had jurisdiction to entertain it but a very narrow and
limited question was examined whether the Dist!. Judge could entertain it on transfer from the Court of the Subordinate Jndge.
It was
also pointed out that the defendant who had raised a contention as
to the jurisdiction of the Distt. Jndge to hear the snit had given }!is
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
inlwrent 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
re-affirmed in
Meenakshi
Naidoo v.
Subramaniya Stistri;\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 appe!Tant on the Committee of the Pagode in the Madras
Presidency. When the matter was before the High Court it was never
(I) [1958] S.C.R. 548.
(2) Law Reports 13 I.A. 134 at p. 145.
(3) Law Reports, 14 I.A. 160.
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157
£ontended 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 judi-
<:ial 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
clothe the Bench with jurisdiction to record fresh oral evidence and
proceed to appp2ciate the same and record findings of facts.
Mr. De next contended that the contention now raised by the
'3ppellant is not open to him in view of the limited leave granted
by
this Court under Article 136 of the Constitution.
While granting
-special [eave 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 Jaw 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 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."
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A very narrow, lite.ral and verbal interpretation of grounds
Nos.
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2 and 5. may prima facie indicate that tl~e question in terms now raised would not be covered by ground either 2 or 5.
But it would not
be proper to put too narrow an interpretation on tl)e language employed in grounds _nos.
2 and 5.
When leave is limited to certain
grounds it would not be 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
H
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
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possible, the grounds should not be very strictly construed or should
not be construed in such a manner as to make the special leave granted under Article 136 self-defeating.
Attempt of the Court must be
t.o find out what was the .grievence or contention that was being put
tortl1 before the. COOJt which appealed to the Court in granting: special
!eave under Article 136.
. Article 136 confers power on this Court irr
1t~ d1~cret10n to grant specrn! leave from any judgment, decree, determmat10n, se.ntence or order m any case or matter, passed or made by
any court or tribunal in the territory of India.
Ordinarily once special le~ve is granted iJ; is against tbe judgment, decree, etc.
However,
by practice this Court sometimes limits the leave to certain specific
points.
If the leave is limited to specrlic 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 O!l 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 a<;cordingly this Court did not permit enlargement of the leave
observing that the scope of the leave was confined to the limitations
spec;ified 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 objection to the effect that the certificate granted by the High
Court under Article '133 (1) must govern the.