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The Amending Act, 1897
Article 136 in The Constitution Of India 1949
The Workmen' S Compensation Act, 1923
Article 19(1)(f) in The Constitution Of India 1949
Section 13 in The Workmen' S Compensation Act, 1923
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Jharia Firebricks And Pottery ... vs State Of Bihar And Ors. on 9 February, 1998
Munna Sah And Anr. vs Shankarjee Prasad And Anr. on 13 December, 2006
A.R. Antulay vs R.S. Nayak & Anr on 29 April, 1988
Shew Karan Agarwalla And Anr. vs Satyanarain Mansinka on 9 June, 1978
Amiya Kumar Basu vs Pankaj Kr. Chakraborty & Ors. on 6 November, 1998

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Supreme Court of India
Balai Chandra Hazra vs Shewdhari Jadav on 21 February, 1978
Equivalent citations: 1978 AIR 1062, 1978 SCR (3) 147
Author: D Desai
Bench: Desai, D.A.
           PETITIONER:
BALAI CHANDRA HAZRA

	Vs.

RESPONDENT:
SHEWDHARI JADAV

DATE OF JUDGMENT21/02/1978

BENCH:
DESAI, D.A.
BENCH:
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  subs-
tantial 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]



JUDGMENT:

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/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. 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 th e 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 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 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 appre- ciation 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 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 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 reappreciate 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.

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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.

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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 everystand 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.

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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, 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 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 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 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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