Sub-section (3A) of section 13(1) of the West Bengal Premises Tenancy Act, which barred suits for eviction instituted within 3 years from the date of purchase, was ultra vires the Constitution and could not be applied to pending suits.

Chakrabarti, J.: Theses are two appeals at the instance of the same defendant arising out of two suits for eviction being Ejectment Suit Nos. 1609 and 1610 of 1965 of the City Civil Court at Calcutta. Both the suits were decreed by the learned Court of first instance and affirmed by this Court in appeal. The defendant has thereupon preferred the present two appeals.

2. The two tenancies in respect of which the two suits were instituted are put different portions of premises No. 11/B, Ramesh Dutta Street, Calcutta. One of the premises carries a rental of Rs. 100/- per month and the other Rs. 6 per month. The case of the plaintiff in both the suits is that she requires the suits premises for the purpose of building and rebuilding. The plaintiff claimed to have determined both the tenancies by service of notice dated May 5, 1965 requiring the defendant to quit and vacate with the expiry of the month of June, 1965. The defendant not having complied with the notice the plaintiff was obliged to institute the suits.

3. The defendant contested both the suits by tiling written statements. The defence is that the plaintiff is merely a benamdar and not the owner of the premises in suits. The plea of reasonable requirement for purposes of building and rebuilding was denied. The defendant further took a plea that the tenancy in respect of Suit No. 1609 carrying a rental of Rs. 100/- per month is not a tenancy running according to English Calender month. The positive case of the defendant in this regard is that the tenancy commenced on March 10, 1949 and the month of tenancy is from the 10th of a month to the 9th of the .succeeding month according to English Calender.

4. The learned Judge in the City Civil Court having found against the defendant on all the points, decreed both the suits by a common judgment.

5. The defendant preferred appeals to this Court. During the pendency of the appeals the original defendant having died, his heirs were substituted and brought on record. It appears that at the hearing of the appeals to this Court the defendant did not challenge the finding that the plaintiff reasonably required the suit premises and that she has the means to construct the proposed building. A plea was taken, however, that the plaintiff having purchased the suit premises on July 31, 1963 and having instituted the suit within 3 years from the date of the purchase, the suits were barred in view of the provisions of sub-section (3A) of section 13(1) of the West Bengal Premises Tenancy Act as amended in 1969. It was contended in appeal that the tenancy in respect of the subject-matter of Ejectment Suit No. 1609 ran from 10th of month to the 9th of the succeeding month and as such the notice asking the defendant to vacate with the expiry of the month of June, 1965 was bad in law and insufficient. Those are the two points on which the appeals were fought in this Court. The learned Single Judge relying on a Bench decision of this Court in (1) Kalyani v. Pramila, ILR 1972 (2), Calcutta 660 held that sub-section (3A) in so far as it has been sought to be applied to pending suits and appeals is ultra vires the Constitution and hence it could no longer be urged that the suits though instituted within 3 years from the date of purchase, the suits which were pending at the date of the commencement of the amendment in 1969 were barred. With regard to the other point the learned Judge found that the plaintiff's categorical statement in evidence that the tenancies ran according to English Calender month was not challenged in cross-examination. He found that the rent was all along paid according to English Calender month, although defendant had stated that he had paid rent in that fashion for the sake of convenience only. Upon a reference to the specific case made out in paragraphs 17 and 18 of the written statement, the un-impeached evidence of the plaintiff, and the mode of payment, it was held that the defendent failed to prove that the rent was