Mohini Devi Bajoria vs Juideyee Devi

N.K. Sen, J.—This is a Rule on an application u/s 115 of the CPC and Article 227 of the Constitution of India made at the instance of the Petitioners who were tenants-Defendants in an ejectment suit being Suit No. 4016 of 1947 of the Court of Small Causes at Calcutta. The suit was instituted by the Plaintiff opposite party against one Madanlal Bajoria, predecessor-in-interest of the Petitioners in this Court on August 21, 1947. When the suit was instituted, the Calcutta Rent Control Ordinance of 1946 was in force, and a tenant was entitled to get protection under the provisions of the said Ordinance in certain circumstances against ejectment proceedings to be started against him by his landlord.

As soon as the above mentioned suit became ready for bearing the Defendant obtained a stay order from this Court passed in its Original Side in Suit No. 879 of 1948. This suit was instituted by the tenant-Defendant Madanlal Bajoria against the opposite party in this Rule, viz. his landlord, the Plaintiff in the said Small Causes Court suit by an order of the High Court passed in its Original Jurisdiction. The ejectment Suit No. 4016 of 1947 instituted by the opposite party in the Court of Small Causes, Calcutta, was stayed indefinitely. During this time the Calcutta Kent Control Ordinance, 1946, as extended by the West Bengal Expiring Laws Act, 1948, was repealed by the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, with effect from December 1, 1948. It was provided in this temporary Act of 1948 by Section 1, Sub-section (4) thereof that it was to remain in force up to March 31, 1950, in the first instance but it was liable to be continued by resolution to be passed by the State Legislature but in any event it would not continue to be in force after March 31, 1953. This temporary Act of 1948 was not continued till the last day of its expiry and in fact it was repealed by another Temporary Act of 1950, viz., The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, which came into force on March 31, 1950. When the above stay order was vacated in consequence of the dismissal of the High Court suit instituted by the Defendant in the ejectment suit which was by the order of the High Court stayed and which remained pending in the Small Causes Court. The Act of 1950 came into force by which certain reliefs were given to a tenant against the freedom of a landlord to start ejectment proceedings against him.

Both the parties took up the accepted position that the procedure to be adopted in this suit should he on the basis of 1948 Act in accordance with Section 45, Sub-section (2) of 1948 Act the relevant portion of which is quoted below:

Section 45(2).-Any proceedings commenced or deemed to have been done, take or Commenced under any of the provisions of the said Ordinance shall continue in force in so far as they are consistent with the provisions of this Act and shall be deemed to have been made, done, taken or commenced under the corresponding provisions of this Act.

Accordingly, the suit proceeded with following the procedure mentioned in the 1948 Act, although when the suit became ready for hearing after the release of the Stay Order, the 1948 Act and the West Bengal Rent Control Temporary Provisions Act, 1950, were about to expire but kept alive by some amending legislation extending its life from time to time.

One of the grounds of ejectment made in the plaint of the suit was that the premises were bona fide required by the landlord for her own occupation as per proviso (d) of Section 12 of the Calcutta Rent Ordinance of 1946. The corresponding provisions of the 1948 Act deemed to be applied in view of the above mentioned provisions of Section 45, Sub-section (2) is Sub-section (f) of the proviso to Section 11 of the said Act of 1948, viz. "(f) where the premises are bona fide required by the landlord... for his own use."

In the 1948 Act special procedure for suits and proceedings for eviction of tenant was provided for in Section 17 of the said Act, The relevant portion of the said section runs as follows:

Notwithstanding anything contained in any other law for the time being in force, in every suit or proceeding for the recovery of possession of any premises on one or more of the grounds specified in the proviso to Sub-section (1) of Section 11 the Court shall at the first hearing of such suit... or as soon as may be thereafter after giving the parties an opportunity of being heard and considering any affidavit which they may file, decide first if there is sufficient cause for proceeding with the suit or proceeding.

Pursuant to this provision of law providing a special procedure for suit for eviction several affidavits were filed on behalf of both sides in between the period March 30, 1954, and September 17, 1954. In the affidavit filed on behalf of the Plaintiff landlord one Purusattam Das Saha, the youngest son of the Plaintiff, stated about the extreme insufficiency of accommodation available to the Plaintiff and her family in premises No. P. 11, Chitpur Spur as well as to the default made by the Defendant, whereas in the affidavit of opposition made by one Nagarmul Manpuria on behalf of the Defendant simply denied the statement made in the said affidavit filed on behalf of the Plaintiff. In support of this affidavit evidence was also adduced on behalf of both the parties. Purusattam Das Saha, the son of the Plaintiff who swore the affidavit on behalf of his mother, the Plaintiff, was examined and cross-examined on April 10, 1955, and he supported and substantiated all these statements made in Lis affidavit. On behalf of the Defendant tenant the said Nagarmul Manpuria was examined and cross-examined on the same date by the Plaintiff''s side. Besides supporting the statement of denial made in his affidavit he did not add any further statement that could throw any light as to whether further accommodation had in the meantime been available to the Plaintiff on or before that day, that is, April 19, 1955.

After considering the affidavits filed by the parties and also discussing in details the evidences adduced by them and considering the circumstances of the case the learned Judge, Small Causes Court, came to the definite conclusion and found as a fact that the Plaintiff required the suit premises for her own use and occupation and for the members of his family and accordingly, the Defendant was not entitled to claim any protection from eviction under the Rent Control Act, 1948. After this judgment was passed on April 30, 1955, on the preliminary issue, the parties adduced further evidence on the other issues and the final judgment decreeing the Plaintiff suit for khas possession was passed on May, 20, 1955.

The tenant Defendant thereafter filed an appeal against the said decree under the provisions of 1948 Act before the Special Bench of the Small Causes Court, Calcutta, and the said appeal was registered as Special Appeal No. 144 of 1955 and was placed before the Appellate Bench consisting of three Judges for necessary orders as to its admission evidently under the provisions of the said Act of 1948. The Special Bench heard the appeal and in the judgment delivered on October 4, 1955, the learned Judge discussed all the facts and circumstances of the case, considered the evidence, affidavits and other materials on record and found that the Plaintiff bona fide required the suit premises for her own use and occupation and for the occupation of her sons and children and dismissed the appeal on contest.

Against the aforesaid order of the Special Bench passed in Special Appeal No. 144 of 1955 on October 4, 1955, the Petitioners who are heirs of the original tenant Defendant who had died in the meantime moved this Court on July 2, 1956, an application u/s 115 of the CPC and under Article 227 of the Constitution of India and obtained the present Rule and an order for ad interim stay was also granted. In paragraphs 13 and 14 of the petition for revision made to this Court the Petitioners made out a case for the condonation of the delay in making the application within ninety days of the order passed against them. In paragraph 15 of the revisional application the Petitioners challenged the jurisdiction of the Trial Judge as well as of the Appellate Court and they stated that the suit filed against them in 1947 could not be converted into a suit under the provisions of the Rent Act of 1948 and that the provisions of said Act were inapplicable to this case. In the grounds taken in their revisional application the Petitioners have challenged the jurisdiction of the Courts below and further stated that the Plaintiff has failed to bring the case within Section 12 of the Calcutta Rent Ordinance of 1946. During the pendency of this Rule a supplementary affidavit was sworn to by one of the Petitioners Deoki Nandan Bajoria on August 13, 1957, i.e., more than one year after the Rule was issued by this Court on July 2, 1956. In this affidavit the deponent who described himself to be 24 years old stated that the entire third floor had been lying vacant since last two years and six months and was in the possession of the Plaintiff. Although the affidavit was sworn to on August 13, 1947, it is seen that a copy of the same was not served on the Advocate for the opposite party till the 1st week of May, 1958. The opposite party how-ever has not given any reply in opposition to the statement made in the said supplementary affidavit. The supplementary affidavit sworn to in August, 1957 refers to the existence of state of things before two years and a half, i.e., sometimes in February, 1955, and that would be before the evidence on the preliminary issue was led by the parties on April 19, 1955, and the date of the preliminary judgment passed on April 30, 1955. This supplementary affidavit is relied on on behalf of the Petitioners for the purpose of inducing me to look into and consider subsequent events for the purpose of doing complete justice and to shorten litigation. I shall have to consider this point later on.

Mr. Ranjit Kumar Banerjee appearing for the Petitioners has raised three points for my consideration in support of the Petitioners'' case, viz.:

(1) in the facts and circumstances of the case and upon the evidence and materials on record, it has not been disclosed that the Plaintiff bona fide required the premises in suit.

(2) proceedings for ejectment started in 1947 when the Rent Ordinance 1946 was in force, cannot be proceeded with in law after the termination of the Rent Act of 1948 and the Courts below had no jurisdiction to entertain and decide against the Petitioners;

(3) in view of the subsequent facts disclosed in the supplementary affidavit sworn to on August 13, 1957, the question of bona fide requirement of the premises by the landlord at the present moment does not arise, and this Court should take into consideration this fact in order to do complete justice and shorten the litigation between the parties.

Mr. Banerjee submitted with a good deal of force that on each of the grounds stated above his client should succeed. The first and third points have been elaborated by Mr. Banerjee and developed together in his submissions to this Court. I have already disclosed above that both the Courts below considered in detail the facts and circumstances of the case and the evidence and materials on record and came to the conclusion that the Plaintiff-landlord bona fide required the premises in suit for her own use and for the use of the members of her family. So far as the concurrent findings of facts arrived at by both the Courts below are concerned, in my opinion they cannot be re-considered and reversed by me sitting in revision exercising jurisdiction either u/s 115 of the CPC or under Article 227 of the Constitution of India.

Mr. Banerjee has argued that the facts mentioned in the supplementary affidavit sworn t0 on August 13, 1957, by one of his clients, viz., the Petitioner No. 2, Deoki Nandan Bajoria, should be given proper consideration by this Court by taking notice of it for the purpose of shortening litigation between the parties and for doing complete justice to the parties. In support of his contention Mr. Banerjee has relied upon a decision of this Court [Raja Kamala Ranjan Roy v. Baijnath Bajoria (1948) 53 C.W.N. 329] presided over by Harries, C.J., and Bijan Kumar Mukherjee, J. In delivering the judgment of the Court, Mukherjee, J., held at p. 336 of the said report: "It has been held in more cases than one that for the purpose of shortening litigation and doing complete justice to the parties, the Court is not precluded from taking into consideration facts which happened after the suit was filed."

This proposition of law has been considered by this Court in several other reported Bench decisions earliest of which, as was pointed out to me by Mr. Banerjee was the case of Ram Retan Sahu v. Bishnu Chand (1907) 11 C.W.N. 732, decided on April 30, 1907 by Sir Ashutosh Mookerjee and Holmwood, JJ. Mukherjee, J., held at page 734 of the report as follows:

As a general rule, a Court of appeal in considering the correctness of the judgment of the Court below will confine itself to the state of the case at the time such judgment is rendered but will not take notice of any facts which may have arisen subsequently. But it is equally well settled that the Court will in exceptional cases depart from this Rule, specially where by so doing it can shorten litigation and best attain the ends of justice.

Mookerjee, J''., at page 735 of the said report quoted Mr. Justice Gray of the United States Supreme Court giving the unanimous opinion of the nine Judges of the said Court to the following effect, viz:

It is not only in the power but it may sometimes be the duty of a Court of appeal to take notice of events which have happened during the pendency of the appeal and that such events when not appearing on the record may be proved by extrinsic evidence.

This proposition of law has been followed in later decisions of this Court, amongst others, in the case of Rai Charan Mandal v. Biswanath Mandal (1914) 80 C.L.J. 107, decided by Mookerjee and Beachcroft, JJ., on May 13, 1914, the case of Sm. Balak Bala Dassi v. Jadunath Dm (1930) 34 C.W.N. 634, decided by M.N. Mookerjee and Guha, JJ. on January 28, 1930 and the case of Tarak Chandra Das v. Anukul Chandra Mukherjee (1945) 49 C.W.N. 716, decided on July 5, 1945, by B.K. Mukherjee and Sharpe, JJ.

In all these decisions it has been uniformly held that as a general rule a Court of appeal should not take into consideration anything that may have happened subsequent to the institution of the suit or at any rate after the termination of the proceedings of the Trial Court but there are cases in which tins Rule may and should be departed from. One justifiable reason for such departure is where it will shorten the litigation and best attain the ends of justice by preserving the rights of both parties.

Mr. Hari Prasanna Mukherjee who appeared on behalf of the opposite party to show cause submitted that he did not dispute the proposition of law as enunciated in the cases cited above by this Court but he submitted that the facts alleged in the supplementary affidavit, dated August 13, 1957, filed in the Court does not disclose any happenings subsequent to the disposal of the suit. In fact the relevant allegations made in paragraph 4 of the affidavit are to this effect that the entire third floor is lying vacant since the last two years and six months and is in the possession of the landlady. Mr. Mookherjee pointed out that in accordance with the said allegations the said flat became vacant and came to the khas possession of the Plaintiff in February, 1955, which would be two years and a half from the date of affidavit. The Defendant''s witness deposing on her behalf subsequent to that date, i.e., on April, 1955 did not mention a single word about it and so the said allegations made in the supplementary affidavit did not only relate to antecedent facts but they were untrue as well. I have also made a mention of this fact in an earlier part of my judgment. Mr. Mookerjee further submitted that the matter has to be sent back again for further enquiry if this supplementary affidavit is taken notice of and given effect to and that will result in prolonging the case further rather than to shortening it and on a ground which was apparently based on incorrect facts. I agree with Mr. Mukherjee''s submissions and in my opinion, I cannot find in this particular case any just reason to depart from the general rule that the Court of appeal, specially a Court sitting in its revisional jurisdiction should not take into consideration a supplementary affidavit of this nature. The Defendant has so far been successful in prolonging this litigation for about 11 years and in my opinion, it will do further injustice to the Plaintiff if this litigation is delayed and any further opportunity is given to the Defendant upon allegations which are on the face of it not at all convincing. In my opinion, there is therefore no substance in this contention of Mr. Banerjee.

In connection with the question of "bona fide requirement", Mr. Banerjee in support of his contention submitted that bona fide requirement must mean something more than the mere wish or desire on behalf of the Plaintiff-landlord and must involve an amount of need. He referred to a decision of this Court, a judgment of Buckland, J., reported in the case of Rekhabchand, Doogaar v. J.R. D''Cruz (1922) 26 C.W.N. 499 and the relevant passages appear at pages 502-503 of the said report. In my opinion this case will not assist Mr. Banerjee''s client in any way. Here in this case the Plaintiff-landlord has been able to prove to the satisfaction of both the Courts below and both the Courts below came to the concurrent findings of facts on very cogent and justifiable reasons, that the Plaintiff required the premises in suit bona fide for her own use and for the use of the members of her family. I do not find any reason whatsoever to disagree with the Courts below on this point and come to a. different conclusion.

The last point urged by Mr. Banerjee is that on expiry of the terms of the West Bengal Premises Rent Control Act, 1948, the Courts'' below ceased to have any jurisdiction to decide this suit instituted at a time when the Calcutta Rent Ordinance 1946 was in force. In other words, Mr. Banerjee''s contention is that such a suit of ejectment being a proceeding commenced under the provisions of the said Ordinance was to be continued in force and shall be deemed to have been made under the corresponding provisions of the 1948 Act [vide Section 45(2) of the West Bengal Rent-Control (Temporary Provisions) Act, 1948]. According to Mr. Banerjee the Rent Control Act, 1948, was repealed and lost its force by the enactment of 1950 Act since March 31, 1950 and in any event the 1948 Act being a Temporary Act cannot continue after March 31, 1953 [vide Section 1(4) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948], According to Mr. Banerjee the learned Small Causes Court as well as the Special Appellate Bench had no jurisdiction to try the suit in April or May, 1955. In support of his contention Mr. Banerjee drew my attention to the recent Full Bench decision of this Court in the case of Tarak Chandra Banerjee v. Ratan Lal Ghosal (1956) 61 C.W.N. 263. My attention was particularly drawn by Mr. Banerjee to the following passage appearing at page 281 of the judgment of Chakravartti, C.J., viz.:

With reference to the Act of 1948 which was also a temporary Act, I was able to find an intention that the rights, liabilities and remedies under it should survive its expiry because as I pointed out, the Act even as originally passed provided that it might be extended up to 31st March 1953... There was thus evidence of a legislative intention evinced by the Act of 1948 itself that the benefits pro-Tided by it should remain available up to the end of March, 1953.

Mr. Mukherjee in reply submitted that in view of the provisions of Section 8(c) and (e) of the Bengal General Clauses Act relating to the effect of repeal of any enactment, the procedure to be adopted and followed was as that provided for in the 1948 Act. These relevant Sub-sections of Section 8 of Bengal General Clauses Act as adopted run as follows:

Section 8.-Where... any West Bengal Act made after the commencement, of this Act repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears the repeal shall not,

(c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under any enactment so repealed there under, or,

(e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced... as if the repealing Act had not been passed,

In fact, the suit for eviction brought by the Plaintiff in 1947 was deemed to have been made, done, taken or commenced under the corresponding provisions of this Act, i.e., Rent Act of 1948 by virtue of Section 45, Sub-section (2) of the latter Act. According to Mr. Mookherjee, the said proceedings as deemed to have been made, done, taken or commenced under the 1948 Act should be proceeded and in fact it was so proceeded with following the provisions of the said Act.

In the judgment of Chakravartti, C.J., in the above Full Bench decision, a reference is made to an earlier Full Bench decision wherein His Lordships'' view of Section 8 in connection with the repeal of the Act of 1948 by the Act of 1950 has been expressed. On going through the earlier Full Bench case of T.S.R. Sarma v. Nagendra Bala Chowdhury (1962) 57 C.W.N. 1, it is found that at page 16 of the said report, His Lordship, Chakravartti, C.J., considered this point in the following manner, viz.:

I may point out that Mr. Roy Chowdhury was not right in contending that on expiry of the temporary Act of 1948, all proceedings commenced during its time would automatically lapse. As a matter of fact, the Act of 1948 did not expire but was repealed. But the real answer to Mr. Roy Chowdhury''s contention is that so far as suits for ejectment referred to in the Rent Act of 1948 are concerned they are not brought under that Act but were brought under the Transfer of property Act and therefore, repeal or expiry of the Rent Act would not affect the life of the suits.

In this case also the present proceeding instituted by the Plaintiff is a suit for eviction simpliciter and a temporary Act under the temporary Emergency Statutes supplementing the Transfer of Property Act give some sort of protection to the tenant against proceeding of eviction under the the relevant provisions of the temporary Statutes. If the contention of Mr. Banerjee prevails, viz., that 1948 Rent Act nor any other subsequent Act was applicable to the case, there will be no defence against the claim of eviction made in the suit instituted against his clients after proper and lawful service of notice of ejectment. The appeal preferred by Mr. Banerjee''s clients to the Special Bench of the Calcutta Small Causes Court would be at once held to be not maintainable both on its merits and in form and the Petitioners should also be out of Court in their revisional petition before this Curt. This point also urged by Mr. Banerjee is without any substance.

The result is that all the contentions of Mr. Banerjee fail and the Rule is discharged with costs.

The Defendants-tenants have been resisting so far the Plaintiff''s claim for eviction since 1947, i.e., about eleven years and in my opinion no further time than that of one month from this date should be allowed to them to vacate the premises and on expiry of one more month from this date the Plaintiff will get vacant possession by executing this order or decree in accordance with law.