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Balai Chandra Hazra vs Shewdhari Jadav on 21 February, 1978
Showing the contexts in which fresh documentary evidence in second appeal appears in the document
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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

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

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

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