The High Court does not have jurisdiction to take evidence and decide an issue of fact on the basis of the evidence adduced, as this would be an exercise of the function of the trial court or the first appellate court, which is not permissible under Section 100 of the Code of Civil Procedure.

( 1 ) THESE two appeals have been heard before me, one after the other, and practically common questions of law and fact are involved in these appeals. They will be governed by this judgment.

( 2 ) THE same plaintiff in both the connected suits is the landlord of the respective defendants in respect of two shop rooms, with a godown room in addition in respect of one tenancy of Mundhra Brothers, of the house with C. I. roof, wooden walls, pucca floor situated in Holding No. 6, Ward XVIII of the Siliguri Municipality. The tenanted premises had been held by the defendants as monthly tenants according to English Calendar month. According to the plaintiff, the premises were very old and in dilapidated condition and "therefore the premises are reasonably required by him for purpose of building and rebuilding. " The tenancies were duly determined by notice containing also the threat of suit. As the defendants failed to vacate, two suits were instituted in 1966 against the tenants, one being O. C. Suit No. 24 of 1966 against M/s. Mundhra Stores and another the appellants in S. A. No. 460 of 1974 and the other being O. C. Suit No. 40 of 1966 against Shew Karan Agar-walla and another, the appellants in S. A. No. 1834 of 1970.

( 3 ) THE suits were contested by the respective defendants inter alia denying that premises were in old and dilapidated condition or that the plaintiff reasonably required the premises for building and rebuilding. The suits were tried on evidence and while the O. C. Suit No. 40 of 1966 was dismissed, the O. C. Suit No. 24 of 1966 was decreed. On appeal, the O. C. Suit No. 40 of 1966 was decreed in reversal of the decree of dismissal of the suit by the trial Court, while the appeal against decree for possession in O. C. Suit No. 24 of 1966 was dismissed. These appeals are against the aforesaid decisions.

( 4 ) THE ground of eviction was under the original Clause (f) of Section 13 (1) of the West Bengal Premises Tenancy Act, 1956. This Clause was substituted by Clauses (f) and (ff) by the West Bengal Premises Tenancy (Second Amendment) Act, 1969. Since these clauses have been made applicable to pending proceedings even in second appeal, the Supreme Court in B. Banerjee v. Anita Pan, while upholding the constitutional validity of amending provision of Sub-section (3a) of Section 13 with retrospective effect, gave liberty to the plaintiff to file fresh pleadings setting out his grounds under Clause (f) and Clause (ff) if they were so advised with opportunity to the tenant to file his written statement. The court thereafter was directed to dispose of the suit after giving both sides the right to lead additional evidence. The Court further laid down that it would be open to the appellate court either to take evidence directly or to call for a finding.

( 5 ) IN these appeals also, the plaintiff filed before this Court, as the appeals came before hearing, applications for fresh pleadings in the plaints in the two suits incorporating the requirement of the amended Clause (f) to which there was no opposition as there could be none. The amendments were allowed by this Court on Jan. 19, 1978 and are by addition to that paragraph of the plaint which describes the premises as being in very old and dilapidated condition and as such the plaintiff reasonably required the premises for building or rebuilding. Fresh pleadings were to the effect that the plaintiff's reasonable requirement of the premises for building or rebuilding could not be carried out without the suit premises being vacated by the tenant. After the amendments were allowed the tenants appellants filed their respective written statements.

( 6 ) THIS Court also framed an additional issue on the fresh pleading in both the suits which is as follows :--"whether the plaintiff landlord reasonably requires the suit premises for building or rebuilding and if so, whether such building or rebuilding cannot be carried out without the premises being