Case: Balai Chandra Hazra Vs. Shewdhari Jadav

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 mention ed 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 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, there fore, 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 th at 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 Pe 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 unpunched 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 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. 13.10.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 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, ([1971] 3 S.C.C. 934.) 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, (A.I.R. 1973 S.C. 2427.) 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.([1964] 2 S.C.R. 933.), 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 f act 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 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 point s 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 Ben gal 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 ab out the courts 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 entertainwas 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 mention ed 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 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, there fore, 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 th at 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 Pe 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 unpunched 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 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.