Calcutta High Court
Surindar Kaur (Rai) And Ors. vs Jyoti Ranjan Banerjee And Anr. on 16 May, 2001
Equivalent citations: (2001)3CALLT66(HC), 2001(3)CHN444, 2001 A I H C 3093, (2002) 1 ICC 739, (2001) 3 CAL HN 444, (2001) 3 CALLT 66
Author: B. Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT B. Bhattacharya, J.
1. This revisional application is at the instance of defendants in a suit of eviction and is directed against Order No. 32 dated August 17. 2000 passed by the learned Civil Judge, Junior Division, Ist Additional Court, Alipore in Title Suit No. 151 of 1965 thereby allowing an application for amendment of plaint.
2. The opposite party No. 1 filed a suit being Title Suit No. 151 of 1965 for eviction of the present petitioners on the ground of reasonable requirement. The said suit was decreed by the learned trial Judge.
3. Being dissatisfied, the petitioners preferred an appeal before the learned first appellate Court below and the said Court by the judgment and decree dated February 7. 1968 affirmed those passed by the learned trial Judge.
4. Being dissatisfied, the petitioners preferred a second appeal before this Court which was however ultimately allowed by this Court on August 17, 1994 thereby setting aside the judgment and decree passed by the learned Courts below and remanding the matter back to the learned trial Judge after allowing an application for amendment of plaint filed before this Court. In view of the decision of the apex Court in the case of B. Banerjee v. Anita Pain and subsequent decision of the said Court in the case of Balai Chandra Hazra v. Shewdhari Jadav , this Court remanded the matter back to the learned trial Judge after framing the following issues:-
1. Is the suit premises reasonably required by the plaintiffs/respondents for their own use and occupation and for the occupation of the members of their family?
2. Are the plaintiffs/respondents in possession of any reasonably suitable accommodation elsewhere?
5. After framing the aforesaid two issues this Court remitted the matter back to the learned trial Court to proceed afresh from the stage after the amendment of pleadings and framing of the issues. This Court permitted the parties to adduce fresh evidence on the question of reasonable requirement under section 13(1)(ff) of the West Bengal Premises Tenancy Act.
6. Subsequently when the matter went back to the learned trial Judge, the plaintiffs came up with an application for amendment of plaint thereby proposing to introduce the ground of violation of clauses (m), (o) and (p) of section 108 of the Transfer of Property Act.
7. By the order impugned herein the learned trial Judge has allowed such prayer.
8. Being dissatisfied, the defendants/tenants have come up with the instant revisional application.
9. Mr. Dasgupta, the learned counsel appearing on behalf of the petitioners contends that this Court while remanding the matter back to the learned trial Judge having reframed the issues and evidence only on the aforesaid issues, the learned trial Judge acted illegally and with material irregularity in allowing the amendment thereby permitting the landlord to introduce a new ground of eviction. According to Mr. Dasgupta, in view of the limited scope of remand, the learned trial Judge could not allow such amendment. In support of such contention Mr. Dasgupta has placed strong reliance upon the following decisions:-
1) Mohan Lal v. Anandi Bai and Others. ;
2) Brahma Dutta Chowdhury v. Ranjit Chowdhury, 1995(2) CLJ129;
3) Mira Rani Khamaru v. Sm. Durga Bala Das, 89 CWN 444:
4) Chhote Lal v. Kalyan Prasad and Others, ;
5) Mrs. V. Aviet v. Malik Zafar Ahmed and Another, 1987(2) CHN 436.
10. Mr. Banerjee, the learned counsel appearing on behalf of the respondent has on the other hand supported the order Impugned and has contended that subsequent events necessitated the said amendment and as such the learned trial Judge did not commit any error in allowing such prayer. Mr. Banerjee submits that for effective adjudication of the dispute involved in the suit such amendment was necessary and as such the learned trial Judge allowed such prayer.
11. After hearing the learned counsel for the parties, I am at one with Mr. Banerjee that in this case the learned trial Judge did not commit any mistake in allowing such application. After going through the said amendment prayed for by the plaintiffs I find that in paragraph 9D, the plaintiffs specifically stated that the petitioners made substantial addition and alteration without the consent of plaintiffs and had completed the construction by force. It was further stated that for the aforesaid reason the plaintiffs filed writ application before this Court and Justice V. K. Gupta vide order dated December 17, 1999 directed defendants not to raise any construction over the property in question without any sanction from Calcutta Municipal Corporation.
12. Mr. Dasgupta however by relying upon paragraphs 9A and 9B of the proposed amendment contends that the allegation of the plaintiffs was that during the pendency of the previous second appeal the petitioners made such construction. According to Mr. Dasgupta such being the position. It was the duty of the plaintiffs to apply for amendment before the High Court itself when the previous second appeal was pending. Mr. Dasgupta further contends that in the second appeal before this Court, the plaintiffs prayed for amendment incorporating a ground of sub-letting but ultimately did not press such ground. Thus, according to Mr. Dasgupta events pleaded by the plaintiffs cannot be said to be subsequent events and those were available to the plaintiffs even during the pendency of the second appeal.
13. After going through the entire amendments prayed for by the plaintiffs I find that if the amendments sought to be incorporated are read as a whole it will appear that the definite allegation of the plaintiffs is that during the pendency of the second appeal the defendant started illegal construction, as a result, the plaintiffs filed an earlier writ application being Number 822 of 1993 and against an order passed therein ultimately an appeal was preferred being FMAT No. 3418 of 1993. Subsequently, the defendants again having started unauthorised addition and alteration they filed another writ application being W.P. No. 2208 of 1999. Therefore, according to the plaintiffs unauthorised construction although started during the pendency of the second appeal but has been completed in 1999 after the disposal of the second appeal in 1994. Thus, in my view, the allegations of the plaintiff of unauthorised construction by the defendants cannot be said to be restricted to the period prior to the disposal of the second appeal.
14. The decisions relied upon by Mr. Dasgupta merely reiterate the well settled principles that if an appellate Court remands a matter back to the trial Court limiting the scope of a suit, the trial Court is bound to follow the directions contained in the order of remand and cannot extend the scope of remand. The aforesaid proposition of law is based on the need of giving finality to judicial decision. Therefore, It has been repeatedly held by judicial pronouncements that the principles of res judicata applies also between two stages in the same litigation to this extent that a Court, whether a trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.
15. Thus, If an appellate Court while remanding a case affirms any findings of the trial Court on some of the issues and directs the trial Court to decide some other specific points, parties will not be permitted to reopen the points already concluded by the appellate Court. But if in a given case, due to happening of an event subsequent to the order of remand, a new ground in support of the final relief claimed in the suit has accrued in favour of a plaintiff or a new defence against the final relief claimed has been made available to a defendant which the Court of appeal while making the order of remand had no occasion to consider, the trial Court can always permit the parties to take such additional plea notwithstanding the order of remand directing the trial Court to decide specific issue or issues.
16. Therefore, if a party comes up with a new plea after an order of restricted remand, all that a Court should consider is whether such plea is barred by the principles of constructive res judicata. If the answer is in affirmative, the prayer should be rejected; otherwise prayer should be allowed.
17. Let us take an instance. A suit for eviction on the ground of reasonable requirement is remanded by the appellate Court after affirming the finding of the trial Court on the question of reasonable requirement in favour of the plaintiff directing the trial Court only to consider whether there has been valid service of notice under section 13(6) of the Act after giving opportunity to the parties to lead evidence on that point. After the order of remand, legislature enacts a new law retrospectively prohibiting landlord to evict a tannate residing in the premises for more than a specified period. The tenant claims that he has been residing for more than the specified period and files an application for amendment of written statement incorporating such facts. The Court must allow such amendment and permit the parties to lead evidence on such additional plea although scope of remand is restricted to the question of service of notice.
18. In the instant case, Chatterjee, J. while remanding the case affirmed the findings of the Courts below on the question of legality, validity and service of the notice under section 13(6) of the Act and directed the trial Court to hear afresh on the issues of reasonable requirement and existence of reasonably suitable accommodation of the landlord elsewhere. The landlord has come up with an allegation of violation of Clauses (m), (o) and (p) of section 108 of the Transfer of Property Act after the order of remand claiming an additional ground of eviction allegedly accrued after the order of remand. Therefore, the Court should allow such prayer as this plea cannot be said to be barred by the principles of constructive res judicata because of the order of remand. The principle mentioned above is the same, whether such subsequent event occurred by operation of law or by act of parties.
19. It is preposterous to suggest that in such a situation the plaintiff should file a fresh suit for eviction on the new ground after giving another notice under section 13(6) of the Act and both the suits should continue simultaneously.
20. I now propose to deal with the decisions cited by Mr. Dasgupta.
21. In the cases of Mohanlal v. Anandi Bai and Ors. (supra), Mira Rani Khamaru v. Sm. Durga Prasad (supra), and Chhote lal v. Kalyan Prasad (supra), the Courts followed the well settled general principle that a trial Court cannot enlarge the scope of remand. But in none of the aforesaid cases, the Court had occasion to deal with a case of subsequent event after the order of remand. Thus, those decisions are not applicable to the facts of this case.
22. In the case of Brahma Dutta Chowdhury v. Ranjit Chowdhury (supra), while remanding a case, the appellate Court permitted the parties to give fresh evidence on the question of alternative accommodation made available to the plaintiff during the pendency of the suit. In spite of such opportunity being given, the plaintiff prayed for amendment of plaint incorporating those subsequent accommodation and contending that those were not reasonably suitable. The trial Court allowed such prayer. In revision at the Instance of the tenant, this Court set aside the order on the ground that the appellate Court after considering the plea of the parties having permitted them to lead fresh evidence, there was no necessity of amendment of plaint, more so, when the appellate Court did not grant such liberty. Therefore, the said decision cannot help the petitioner in any way.
23. In the case of Mrs. V. Aviet v. Malkin Zafar Ahmed and another [1987 (2) CHN 436] a Division Bench of this Court held that if a tenant is found to be defaulter for one month prior to the issue of notice, a Court cannot pass a decree on the ground of default after taking into consideration subsequent default. In other words, the Division Bench held that the ground of eviction must exist at the time of giving notice under section 13(6). In my view, the aforesaid decision of the Division Bench cannot be cited as an authority for the proposition of law that a ground accrued subsequent to issue of a notice under section 13(6) of the Act cannot be taken by way of amendment. The said Division Bench did not take into consideration the earlier Division Bench decision of this Court in the case of Dr. R.D. Anklesaria v. Kamala Roy (1977 CHN 394), taking a contrary view. Even the Supreme Court in Pasupuleti Venkateswaralu v. The Motor and General Traders permitted the landlord to take additional ground not existing at the time of filing of suit.
24. Thus, the said decision is also of no avail to Mr. Dasgupta's client as the same was passed per incuriam.
25. Thus, for complete adjudication of the disputes involved in the suit, the amendment was necessary and the learned trial judge rightly allowed the prayer. The petitioners are at liberty to file additional written statement within a fortnight from date.
The revisional application is thus dismissed. No costs.
Since the suit is pending from 1965, the learned trial Judge is directed to dispose of the suit within two months from date.
26. Application dismissed