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1980 Supreme(Cal) 33
Calcutta High Court
ANIL K. SEN AND BHABES CHANDRA CHAKRABARTI, JJ.
Sm. Ashalata Dey - Appellant
Versus
Kamal Kumar Bose - Respondents
Letters Patent Appeal Nos. 196 and 188 of 1974
Decided On : 8 February 1980
S.C Mitter, S.P. Roy Chowdhury, Phani Bhusan Das, for Appellants in L.P.A. No 186 of 1974 and, for Respondent in L.P.A. No. 188 of 1974; S.C. Das Gupta, Saktinath Mookerjee, Nihar Ranjan Chatterjee, for Appellants in L.P.A. No. 186 of 1974 and for Respondent in L.P.A. No. 196 of 1974.
The retrospective operation of an amendment to a statute may necessitate the amendment of pleadings in pending suits to comply with the amended provisions, and such amendment may be allowed even if it is beyond the limitation period, if it is necessary for the determination of the real dispute in controversy between the parties and if the facts and circumstances are in favour of the party seeking the amendment.
Headnote:
AMENDMENT OF PLAINT - WEST BENGAL PREMISES TENANCY ACT 1950 - S.13(1)(f) AND (ff) - AMENDMENT OF PLAINT TO PLEAD REQUIREMENT FOR OWN USE AND OCCUPATION UNDER AMENDED PROVISION - LIMITATION - ART.67 AND 137 OF THE LIMITATION ACT - EXERCISE OF JUDICIAL DISCRETION.
Fact of the Case:
Plaintiffs filed a suit for eviction of the defendant-tenant on the ground of reasonable requirement for their own occupation under S.13(1)(f) of the West Bengal Premises Tenancy Act 1950. The suit was decreed by the trial court, and the defendant appealed to the High Court. While the appeal was pending, the Act was amended by the West Bengal Premises Tenancy (Amendment) Act 1969, which introduced a new provision, S.13(1)(ff), requiring the landlord to plead and prove that he has no other reasonably suitable accommodation. The High Court disposed of the appeal on the basis of the unamended Act, as it held that the retrospective operation of the amendment was unconstitutional. The Supreme Court reversed the High Court's decision and upheld the constitutional validity of the retrospective operation of the amendment. The plaintiffs then filed an application to amend their plaint to plead their requirement under the amended provision.
Finding of the Court:
The High Court allowed the amendment of the plaint, holding that: * The retrospective operation of the amendment having been upheld by the Supreme Court, the amendment of the pleading becomes a necessity as otherwise the suit is likely to fail on the plaintiffs failure to plead and prove their requirement within the four corners of the amended provision. * The amendment sought for is a necessity of the court for the purpose of determining the real dispute in controversy between the parties in the light of the change in law. * The plaintiffs are not seeking to incorporate any new claim on a new cause of action which on the date he asks for the amendment is barred by limitation. * The plaintiffs right to apply for amendment accrued only when the Supreme Court reversed the High Court's decision upholding the unconstitutionality of the retrospective operation of the amendment. * The facts and circumstances are entirely in favour of the plaintiffs, and the delay in filing the application for amendment does not affect or prejudice the defendant in any manner.
Issues: 1. Whether the amendment of the plaint to plead requirement for own use and occupation under the amended provision S.13(1)(ff) of the West Bengal Premises Tenancy Act 1950 is barred by limitation under Art.67 or 137 of the Limitation Act? 2. Whether the amendment should be allowed in exercise of judicial discretion?
Ratio Decidendi: 1. The amendment of the plaint is not barred by limitation under Art.67 of the Limitation Act, as the plaintiffs are not seeking to incorporate any new claim on a new cause of action which is barred by limitation. 2. The amendment of the plaint is not barred by limitation under Art.137 of the Limitation Act, as the plaintiffs right to apply for amendment accrued only when the Supreme Court reversed the High Court's decision upholding the unconstitutionality of the retrospective operation of the amendment. 3. The amendment should be allowed in exercise of judicial discretion, as the facts and circumstances are entirely in favour of the plaintiffs, and the delay in filing the application for amendment does not affect or prejudice the defendant in any manner.
Final Decision: The High Court allowed the amendment of the plaint.
ORDER :- This is an application for amendment of the plaint filed in these two Letters Patent Appeals which arise out of a suit for eviction. The application has been heard on contest by the tenant-defendant who is appellant in one of these appeals and respondent in the other.
2. On Apr. 30, 1965 the plaintiffs instituted the aforesaid suit seeking a decree for eviction on several grounds including the ground that they reasonably required the suit premises for their own occupation. At the time the suit was instituted S.13(1)(f) of the West Bengal Premises Tenancy Act 1950 in its material part provided :
"(f) 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".
In the plaint the plaintiffs then pleaded their requirement accordingly.
3. The suit was decreed on May 20, 1967 by the trial Court on twofold grounds, viz. that the plaintiffs reasonably require the suit premises for their own use and occupation and that defendant who had shifted to his own house had wrongfully transferred the suit premises without the consent of the landlords. The defendant filed an appeal to this Court being F.A. 848 of 1967.
4. On Nov. 14, 1969 the West Bengal Premises Tenancy Act was amended by he Amending Act of 1969 (West Bengal Act 34 of 1969). On such amendment original Cl.(f) of Sub-Sec. (1) of S.13 was bifurcated into two parts and material clause governing cases of requirement for own use and occupation was re-enacted as Cl.(ff) which is as follows :-
"(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."
Section 13 of the Amending Act made the amended provision applicable to pending suits and appeals. This Court in the case of Sailendra Nath Ghosal v. Sona Dutta, AIR 1971 Cal 331 however held the retrospective operation of the amended provision as given by S.13 as unconstitutional and as such void. In that view the appeal to this Court was heard and disposed of as on the provisions of the statute before such amendment. This Court set aside the finding of the trial court on the issue as to wrongful transfer of the suit premises by the defendant and affirmed the finding of plaintiffs requirement. It appears from the judgement of this Court that the defendant-appellant really conceded such requirement. This court however took the view that a decree for partial eviction would meet the plaintiffs requirement and this Court varied the decree accordingly. The defendants appeal was disposed of accordingly on June 26, 1973. Against that decision both the plaintiff and the defendant have preferred two independent appeals being the Letters Patent Appeal referred to hereinbefore.
5. On Nov. 20, 1974 the Supreme Court reversed the decision of this Court in the case of Sailendra Nath Ghosal as above and upheld the constitutional validity of the retrospective operation of the amended provision vide AIR 1975 SC 1146. In that very decision the Supreme Court having held that the amended provision has to be given effect to all pending suits and appeals, further laid down the manner in which it should be so done. It laid down,
"We do it by directing the plaintiffs in the two cases to file fresh pleadings setting out their grounds under Cls.(f) and/or (ff) of Sub-S. (1) if the so wish. On such pleading being filed we may legitimately hold that the transferee landlord institutes his suit on grounds mentioned in Cl.(f) or (ff) of Sub-Sec. (1) on that date. It is only when he puts in such a pleading setting out the specific ground covered by Sub-Section (3A) of Section 13 that we can say he has begun or instituted a suit for the recovery of possession of the premi
