Pradip Kumar Biswas, J.
1. This appeal is directed against the judgment and decree of confirmation dated November 31, 2000 passed by the ld. Additional District Judge, 13th Court, South 24-Parganas, Alipore in Title Appeal No. 207 of 2000. By his judgment and decree the ld. Judge was pleased to affirm the judgment and decree dated June, 13, 2000 passed by the ld. Civil Judge (Sr. Division), 9th Court in Title Suit No. 39 of 1991.
2. The plaintiff/respondent of this suit came up with this suit with the prayer for ejectment on evicting the defendant and for mesne profits etc.
3. The case of the plaintiff/respondent in short is as follows.
4. Plaintiff became the owner of flat No. 1D in question by virtue of purchase by a registered deed of purchase dated 22.7.1990. It has been alleged by the plaintiff that the defendant was a tenant under the plaintiff since 2nd August, 1982 in respect of the suit flat described in schedule 'A' to the plaint with fittings and fixtures described in schedule 'B' to the plaint at a rental of Rs. 2,400/- per month together with hire charges at the rate of Rs. 1000/- per month and Rs. 600/- per month as service charge for multi-storied building and Rs. 200/- per month for the open car parking space in the ground floor of the said building in terms of agreement in the form of a letter dated 2.8.1981.
5. Subsequently, the rent was enhanced to Rs. 4,510/- per month but defendant No. 1 did not pay the same and as such he was a worst defaulter since February, 1991. Further, it has been alleged in the plaint that the flat in question was let out to the defendant for residential purpose and the same is now reasonably required for her own use and occupation also for the use and occupation of the family members of the plaintiff as they have no suitable accommodation elsewhere. The family of the plaintiff consists of herself, her husband, one daughter and a son, who are now residing in a rental flat in the 3rd floor of the premises No. 537, Raja Basanta Roy Road at a rental of Rs. 525/- per month.
6. It has further been alleged by the plaintiff that both plaintiff and her husband are aged persons and as such they are feeling inconvenience in negotiating the staircase in their rental flat in the absence of any lift and husband of the plaintiff is also facing inconvenience in negotiating the staircase on his health ground under the advice of the doctor being a heart patient and as such it would be most convenient for the husband of the plaintiff to have the suit premises for their use and occupation since the same is having lift facilities as otherwise for negotiating the staircase, in absence of any lift, in their present accommodation, it may cause loss of life of the plaintiffs husband since he is a heart patient.
7. In consequence thereof, the tenancy of the defendant was determined by a notice dated 21.6.1991 requesting the defendant No. 1 to vacate the same but despite the receipt of the notice, the defendant did not vacate the suit premises. Hence, this suit.
8. This suit was, however, contested by defendant by filing written statement denying all the material averments as made out in the plaint. It was, inter alia, contended by the defendant that the suit was not maintainable and the notice of ejectment was invalid and insufficient and the same was not properly served upon the defendant.
9. It was specifically alleged by the defendant that the said flat was let out to the defendant No. 1, a partnership firm and it was never let out for any residential purpose and the defendant had also denied that he ever defaulted in payment of rent nor the plaintiff ever required the suit premises for the use and occupation of her family and the suit was filed only with a view to put pressure upon the defendant when he refused to accede to the request made by the plaintiff for the enhancement of rent. With all these, the defendant has prayed for the dismissal of this suit.
10. In this second appeal, the one substantial question of law was formulated which is as under:
'Whether in view of the bar under Section 13(3A) of the West Bengal Premises Tenancy Act, 1956 in which institution of the suit on the ground of reasonable requirement within three years from the date of purchase of the suit premises was barred, the Court below erred in law by not holding that in view of such bar the suit ought to have been dismissed or not?'
11. Sri S.P. Roy Chowdhury, the learned senior counsel appearing for the appellant has frankly conceded that the findings of facts being concluded by both the Courts below he is not in a position to assail any of those finding of facts, as arrived at by the Courts below. But drawing my attention to the provisions of Section 13(3A) of the W.B.P.T. Act as per the Second Amendment Act of 1969, it has been contended by him that to obtain a decree for ejectment on the ground mentioned in Clauses (f) and (ff) of Sub-section (1) of Section 13 the landlord must have to prove and establish the followings:
'Firstly, the landlord must not have any other reasonably suitable accommodation and secondly, the suit had to be instituted by him after the expiry of three years from the date of acquisition of interest.'
12. He has further submitted that in the instant case, it is the admitted position that the suit property was purchased by the plaintiff on 22.07.90 and the plaint was filed before the concerned Court on 09.08.91 and as per the recital in the plaint the notice to quit was given on 21.6.91 and that being the position the instant suit was clearly hit by Section 13(3A) of the West Bengal Premises Tenancy Act.
13. Sri Roy Chowdhury has fairly conceded that with regard to the aforesaid facts the plea was not, however, taken by the appellant/defendant in the written statement and both the Courts below did not in fact deal with the aforesaid questions in their judgment but even then when this suit has been filed in clear violation of the provisions of law namely Section 13(3A) of the West Bengal Premises Tenancy Act, 1956 the same goes to the very root of the matter and as such that being the very essential and substantial question of law that could be raised for the first time even in the second appeal.
14. Sri Roy Chowdhury has submitted that as per the purchase deed, executed in connection with this case, it clearly transpires that the suit property was purchased on 22.07.90 and the plaint of the suit was filed on 09.01.81 and it was also disclosed in the plaint that notice to quit was given on 21.06.96. So, from the aforesaid admitted position, it is absolutely and abundantly clear that the suit is clearly hit by Section 13(3A) of the West Bengal Premises Tenancy Act and on that score also, the appeal in question should be allowed by setting aside the judgments passed by the Court below and also by the Court of First Appeal.
15. Sri Roy Chowdhury has further contended that this being essentially a question of law which cuts at the very root of the suit itself in granting the decree under Section 13(1)(ff) of the West Bengal Premises Tenancy Act, 1956, no decree in favour of the plaintiff could be granted by the ld. Courts below since Section 13(1)(ff) clearly stipulates that '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'.
16. So, it has been submitted by him that the mandate of the section itself is to take into consideration, the provisions of Sub-section (3A) before granting the decree on the ground of reasonable requirement i.e., precisely under Section 13(1)(ff) and Sub-section (3A) stipulates that where a landlord has acquired his interest in the premises by transfer, no suit of the recovery of possession of the premises on any of the grounds mentioned in Clause (f) or Clause (ff) of Sub-section (1) shall be instituted by the landlord before the expiration of a period of three years from the date of his acquisition of such interest.
17. It has, therefore, been contended on behalf of the appellant that since this question of law, which are vital and substantial in nature, has not been taken into consideration by the Courts below and in a situation like this the Courts below could not and should not have granted any decree to the plaintiff praying for ejectment grounded on Clause (ff) of Section 13( 1) of the West Bengal Premises Tenancy Act.
18. In support of his contention, Sri Roy Chowdhury has placed his reliance on a number of decisions out of which the following decisions would be helpful for proper adjudication of the present matter in issue.
19. Placing his reliance on a decision reported in : [1955]2SCR374 in the case of M.K. Ranganathan and Anr. v. Govt. of Madras and Ors. it has been contended on behalf of the appellant that it was held in the aforesaid decision by the Apex Court that respondent may rightly be allowed to raise a question even on appeal stage when it involves pure question of law.
20. Placing his reliance on another decision reported in : [1973]1SCR850 in the case of J. C. Chatterjee and Ors. v. Shri Shri Kishan Tandan and Anr. it has been contended by Sri Roy Chowdhury that a question as to the termination of the tenancy by valid notice being essentially one of law can be allowed as a new plea in the second appeal. So, placing reliance on the aforesaid decisions, it has been contended by Sri Roy Chowdhury although the question regarding the issue that the present suit is hit by Section 13(3A) of the West Bengal Premises Tenancy Act or not, even being not taken at the trial stage or at the 1st appellate stage, there is no legal impediment in taking up of the aforesaid plea, which is essentially one of law in the second appeal as new plea since it goes to the very root of the matter and affects jurisdiction of the Courts in granting such decree grounded on Clause (ff) of the Act and as such it should be regarded as substantial question of law.
21. Placing his reliance on another decision reported in : [2001]251ITR84(SC) in the case of Santosh Hazari v. Puruskottam Tiwari (deceased) by L.Rs., it has been forcefully contended by Sri Roy Chowdhury, ld. senior counsel appearing for the plaintiff that the substantial question of law is a question having substance, essential, real, of sound-worth, important or considerable and a question of law must be dependable, must have material bearing on the outcome of the case and the pure question of law would not be substantial unless it went to the root of the matter.
22. Referring to the aforesaid decision, it has been contended by him that Sub-section (3A) of Section 13 of the West Bengal Premises Tenancy Act, 1956 inserted by the West Bengal Premises Tenancy (Second Amendment) Act puts an embargo to landlord's institution of suit grounded on Clauses (f) and (ff), when the landlord has acquired his interest in the premises within 3 years preceding the filing of the suit. And, that being the position, in the matter of granting decree grounded on Clauses (f) & (ff) and failure to consider those aspect, certainly cuts at the very root of the foundation of the decree grounded on the aforesaid clauses.
23. He has, however, frankly conceded that had it been a question of fact simpliciter, it could not have been looked into until and unless specific plea in this regard were taken in the pleadings and in such a situation, it could not have been entertained at the appellate stage, but here this being a question of law, which is essentially substantial question of law, the same should have been gone into by the Courts below, whether or not such a plea was taken by either of the parties in their pleadings before the Trial Judge and also before the First Appellate Judge as there was clear prohibition against the institution of the suit by the transferee landlord within three years from acquisition of interest in the demised premises by way of transfer. It has, therefore been contended by him forcefully that the suit must, therefore, be straightaway dismissed, as the institution of the same is quite invalid and illegal.
24. This prayer of the appellant has seriously been opposed resisted by the respondent alleging that the question whether or not the suit is hit by Section 13(3A) of the West Bengal Premises Tenancy Act being a legal point simpliciter and not being a substantial question of law and such point being not taken earlier, the defendant/appellant should not be allowed to take this point in the second appeal before the High Court for the first time.
25. Sri Goutam Chakraborty, ld. senior counsel appearing for the respondent in this connection has placed his reliance on a number of decisions out of which the following decisions would be helpful for the proper appreciation of the matter in controversy.
26. Placing his reliance on the decision reported in 1995 (Supple) 1 SCC 202 (K. Chelliah Servai v. P. Nuthusami Servai), it has been contended that the question neither pleaded nor dealt with by the Courts below cannot be gone into by the High Court as the same would be beyond the jurisdiction of the High Court under Section 100 of C.P.C.
27. Placing his reliance on a decision reported in : [1987]3SCR1075 (Shanti Sharma and Ors. v. Ved Prabha and Ors.) and another decision reported in : AIR1992SC1590 (Swadesh Ranjan Sinha v. Haradeb Banerjee), it was contended by Sri Chakraborty that the word 'owner' ordinarily denotes that the concept of ownership may be absolute, but in the moral context other than the absolute ownership, there may be 'owners' who had a right to possess the premises for a period of 99 years being allotted of the land on the strength of allotment or long lease from the lawful owner itself and they can also be regarded as 'owners' for the purpose of instituting a suit either under Section 13(1)(f)(ff) and in a suit of said nature what the plaintiff needs to prove that he has a better title than the defendant.
28. In this regard reliance has also been made by them on a decision reported in : AIR2002SC67 in the case of K.D. Dewan v. Harbhajan S. Parihar and with reference to the above decision, it has been contended on behalf of the respondent that to claim eviction under Section 13(3)(a) of the East Punjab Urban Rent Restriction Act on grounds that landlord required residential building for his own occupation a person must be a landlord within the meaning of the terms in Section 2(c), his being owner of the premises is neither a prerequisite nor a relevant factor. To be a landlord within the meaning of Clause (c) of Section 2, a person need not necessarily be the owner and in a vast majority of cases an owner will be a landlord but in many cases a person other than an owner may as well be a landlord.
29. Placing reliance on a decision reported in AIR 1966 SC 1024 in the case of Krishnapasuba Rao Kundapur v. Dattatraya Krishna Karani, it has been submitted on behalf of the respondent that the plea not raised in Trial Court or in First Appellate Court, the party cannot raise it for the first time before the High Court and in this connection it was contended by the respondent that in connection with the above it was held by the Apex Court that the Trial Court and the First Appellate Court concurrently found that the claim for eviction under Section 13(1)(i) of the Bombay Rents, Hotel and Lodging House Rates Control Act was not barred by res judicata and the plea of res judicata was not taken before the High Court and is no longer open to them. Before the High Court, the appellants attempted to raise a plea under Section 13(3) of the Act and this plea was not raised in the first two Courts and was rightly rejected by the High Court.
30. With reference to a decision reported in : [1999]2SCR728 in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors., it has been contended on behalf of the respondent that in the aforesaid case it was held by the Apex Court that if the question of law termed as substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its mere wrong application to facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first Appellate Court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal treating it as substantial question of law.
31. Now placing their utmost reliance on the aforesaid decisions and in view of the fact that the plea with regard to the prohibition regarding filing of the suit within a period of three years by the transferee landlord grounded on Clause (f) or (ff) being barred under the provisions under Section 13(3A) of the West Bengal Premises Tenancy Act having not taken either before the Trial Judge or before the First Appellate Court, in any event, that cannot be termed as a substantial question of law, and in fact in the instant appeal no such substantial question of law, however, exists so as to interfere with the judgments passed by the Courts below by the High Court invoking its jurisdiction under Section 100 of CPC and as such High Court in the instant case should not also interfere with the judgment of affirmation passed by the First Appellate Judge, confirming the judgment of the Trial Court.
32. So, according to them, the appeal should be dismissed.
33. I have given my anxious consideration with regard to the submissions made by the parties and I have also looked into the decisions cited at the Bar.
34. It is needless to say that the scope of the High Court in second appeal has been limited by effecting amendment in Section 100 of C.P.C. and now the jurisdiction of the High Court is only confined to entertain such appeal as involves a substantial question of law specially set out in the memorandum of appeal and formulated by the High Court, Here, in this case, at the time of the admission of appeal, substantial question of law has been formulated and parties went on with the hearing of this appeal on such substantial question of law making claim and counter-claim or in other words, it has been contended by the appellant that there exist substantial question of law and the respondent contends that none of the substantial question of law exists in the appeal.
35. But, upon assessing the entire materials available on record and upon perusal the judgments of the Court below and having due regard to the provisions as contained in Section 13(3A) of the West Bengal Premises Tenancy Act in view of the pronouncement of the Apex Court in its various decisions including those cited in connection with this case, it is almost clear that an important question of law has been raised in this appeal, for the purpose of intervention of the High Court in the second appeal. Now, the question would be whether such question of law should be regarded as a substantial question of law and for determining as to whether a question 'involves' a substantial question of law the test is not merely the importance of the question, but its importance to the case itself, necessitating a decision on the question.
36. But, here in this particular case, the prohibition imposed by enacting Section 13(3A) of the West Bengal Premises Tenancy Act certainly relates to the jurisdiction of the Court in granting decree for eviction in a suit grounded either under Clause (f) or under Clause (ff) of Section 13(1) of the West Bengal Premises Tenancy Act instituted by the transferee landlord within the prohibited period of three years and in my humble opinion, the aforesaid provisions cuts at the very root of the jurisdiction in granting decree by the Courts where there is violation of the provisions of Section 13(3A) of the West Bengal Premises Tenancy Act or in other words it puts an embargo to the landlord's institution of suit grounded on Clauses (f) and (ff) when the landlord has acquired his interest in the premises within three years preceding of the filing of the suit.
37. Here, in this particular case, as per the recital in the plaint and the fact as has come out from the materials available, the suit is filed by the landlord within a period of three years from the date of purchase of the same.
38. So, in my humble opinion, upon consideration of the entire materials and having due regard to the laws applicable in the connected matter, I hold that since grant of decree of ejectment in a suit grounded on Clause (ff) of Section 13(1) was prohibited by inserting Sub-section (3A) of Section 13 of the West Bengal Premises Tenancy (Second Amendment) Act, this was certainly touching the jurisdiction of the Court in that way it was certainly a substantial question of law.
39. Moreover, in view of my findings recorded in the foregoing paragraphs, it will be crystal clear that both the Courts below were in error in granting the decree for eviction grounded on Clause (f) and Clause (ff) of Section 13(1) of the West Bengal Premises Tenancy Act.
40. In a decision reported in AIR 1975 SC 1147 in the case of B. Banerjee v.Anita Pan, the Apex Court evolved a way out to get rid of the impasse as manysuits on the date of W. B. Act XXXLV of 1969 introducing Sub-section (3A) weremore than three years old but these were instituted within three years ofacquisition of interest.
41. In the aforesaid decisions, it was pointed out by the Supreme Court that the plaintiff-landlord can seek amendment of the plaint filing fresh pleadings setting the grounds under Clauses (f) and/or (ff) of Section 13(1) on that date and it is only when they put in such a pleading setting out the specific ground covered by Sub-section (3A) of Section 13 that the Court can say that he has begun or instituted a suit for the recovery of possession of the premises on that ground. Institution of a suit earlier has to be ignored for the purpose since that was not based on ground covered by Clauses (f) and/or (ff) and is not attracted by Sub-section (3A).
42. Sub-section (3A) opens with the words 'Where a landlord has acquired his interest in the premises by transfer'. Bar, in fact, has been imposed on institution of suit on the ground of Clauses (f) and/or (ff) on transferee-landlords acquiring interest by transfer within three years preceding the institution of suits.
43. Now, here in this particular case, the suit of the plaintiff on the ground of reasonable requirement having been filed within three years of purchase when three years have passed during the pendency of the suit then, the plaint certainly may be allowed to be amended treating that the suit was filed as a fresh suit from the date of the amendment and I am rather prompted to hold so in view of the decision of the Apex Court reported in AIR 1975 SC 1147 (supra). For better appreciation, the relevant portion of the judgment of the Apex Court is quoted hereinbelow with approval :
'The bigger roadblock in the way of plaintiff in a pending action lies in the prohibition of the institution of the suit within three years of the transfer from the landlord. Indeed, such prohibitions are common in rent control legislation as has been noticed by the Calcutta High Court and is found even in agrarian reforms laws (vide Malabar Tenancy Act, as amended by Act VII of 1954, Madras). Section 13 of the Amendment Act compels the postponement of the institution of the suit (including appeal) for a period of three years from the date of the transfer. In both the cases before us, the suits were instituted within the prohibited period of three years. The argument therefore is that the suits must be straightaway dismissed, the institution being invalid. We do not think that this consequence is inevitable. 'To institute' is to 'begin or commence', in plain English. The question then is whether the suit can be said to begin on the date it was filed in 1961 or 1964 as the case may be. Here we have to notice a certain nice but real facet of Sub-section (3'A). The prohibition clamped down by Sub-section (3A), carefully read is on suits for recovery of possession by transferee landlords on any of the grounds mentioned in Clause (f) or Clause (ff) of Sub-section (1). Obviously the suits with which we are concerned are not for recovery on grounds contained in Clauses (f) and (ff). They were based on the repealed Clause (f) of Section 13 of the basic Act. Strictly speaking, Sub-section (3A) brought in by Section 4 of the Amending Act applies only if (a) the suit is by a transferee landlords; (b) it is for recovery of possession of the premises and, (c) the ground for recovery is what is mentioned in Clauses (f) and (ff) of. Sub-section (1). Undoubtedly, the third condition is not fulfilled and therefore Sub-section (3A) is not attracted. This does not mean that the suit can be proceeded with and decree for recovery passed, because Section 13 of the basic Act contains a broad ban on eviction in the following words :
'13(1) Notwithstanding anything to the contrary in any other law, no orderor decree for the recovery of possession of any premises shall be made byany Court in favour of the landlord against a tenant except on one or moreof the following grounds, namely': (emphasis ours)
Since the new Clauses (f) and (ff) are included by the Amendment Act in Section 13 of the basic Act and since the suits we are concerned with, as they now stand, do not seek eviction on those grounds they will have to be dismissed on account of the omnibus inhibition on recovery of possession contained in Section 13 itself.
A just resolution of this complex situation was put by us to counsel on both sides and the learned advocate representing the State readily agreed that the policy of the legislation and the conditions in the Amendment Act would be fulfilled if the interpretation we proposed were to be accepted. We are satisfied that as far as possible Courts must avoid multiplicity of litigation. Any interpretation of a statute which will obviate purposeless proliferation of litigation, without whittling down the effectiveness of the protection for the parties sought to be helped by the legislation, should be preferred to any literal, pedantic, legalistic or technically correct alternative. On this footing we are prepared to interpret Section 13 of the Amendment Act and give effect to Section 4 of that Act. How do we work it out? We do it by directing the plaintiffs in the two cases to file fresh pleadings setting out their grounds under Clauses (f) and/or (ff) of Sub-section (1) if they so wish. On such pleading being filed we may legitimately hold that the transferee landlord institutes his suit on grounds mentioned in Clauses (f) or (ff) of Sub-section (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 premises on that ground. Institution of a suit earlier has to be ignored for this purpose since that was not based on grounds covered by Clauses (f) and/or (ff) and is not attracted by Sub-section (3A). He begins proceedings on these new grounds only when he puts in his pleading setting out these grounds. In spirit and in letter he institutes his suit for recovery on the new grounds only on the date on which he puts in his new pleading. We cannot be ritualistic in insisting that a return of the plaint and a representation thereof incorporating amendments is the sacred requirement of the law. On the other hand, social justice and the substance of the matter find fulfilment when the fresh pleadings are put in, subject of course to the three-year interval between the transfer and the filing of the additional pleading. Section 13 of the Amendment Act speaks of suits including appeals. It thus follows that these fresh pleadings can be put in by the plaintiff either in the suit, if that is pending, or in appeal or second appeal, if that is pending. Thereupon, the opposite party, tenant, will be given an opportunity to file his written statement and the Court will dispose of it after giving both sides the right to lead additional evidence. It may certainly be open to the Appellate Court either to take evidence directly or to call for a finding. Expeditious disposal of belated litigation will undoubtedly be a consideration with the Court in exercising this discretion. The proviso to Sub-section (3A) can also be complied with if the plaintiff gets the permission of the Rent Controller in the manner laid down therein before filing his fresh pleading'.
44. Here, in this particular case, however, from the side of the plaintiff/ respondent, an application has been filed praying for acceptance of the additional evidence under Order 41 Rule 27 of C.P.C. and/or for taking into account the facts disclosed in the aforesaid application as subsequent events alleging therein that on 14th July, 1976, a sale agreement was executed between the promoter, Ashoka Housing Corporation and the purchaser, Smt. Illora Sarkar and that applicant from 16-07-76 to 31-05-1977 made payments to the promoter through A/c. payee cheques a total sum of Rs. 1,47,718/- and on 31.05.1977, Smt. Illora Sarkar paid Rs. 500/- for electric meter and Rs. 1000/- for taking possession of the flat.
45. It has also been alleged in the aforesaid application that on 31st May, 1977 all payments were made and possession of the suit premises was given in the 1st week of June, 1977 by the promoter Ashoka Housing Corporation in favour of Smt. Illora Sarkar, the plaintiff/applicant.
46. On 2nd August, 1982, an agreement was made between the landlord and the tenant for taking suit flat on rental basis and on and from 2nd August, 1982, the tenant/defendants have been giving the rent to the landlord plaintiff Smt. Illora Sarkar.
47. Further, it has been stated that Calcutta Municipal Corporation had taken Municipal Tax with effect from 2nd quarter of 1977-78 for the suit flat from Smt. Illora Sarkar.
48. Income-tax Department had also accepted that Smt. Illora Sarkar had purchased the Flat from Ashoka Housing Corporation and in the year 1986, two certificates were issued by the Ashoka Flat owners organization and Ashoka Co-operative Housing Society Ltd. respectively to Smt, Illora Sarkar which would clearly reveal that Smt. Sarkar is the owner of the said flat since 1987-88 and the present defendants/appellants have never challenged in the Court below the aforesaid factum of acquisition of suit property by the plaintiff as owner on and from 1st week of June, 1977 on payment of full consideration money and delivering of possession of the flat and as such the plaintiff was not advised to file those papers and documents in the Court below.
49. From the recitals of the aforesaid application it will be crystal clear that the chain of events as disclosed in the petition cannot at all be regarded as the subsequent events because those as alleged, have clearly taken place prior to the institution of the suits and the plaintiff/appellant herself has admitted this in the said petition. So, that being the position, in any event, those cannot be regarded as a subsequent event for taking into consideration without the same being pleaded by way of amendment.
50. Again, for invoking provisions of Order 41 Rule 27 of C.P.C. conditions embodied in (a) and (aa) shall have to be satisfied by the parties, first as Clause (b) of Rule 27 gives power only to the Court to act on its own motion, to admit such documents to be produced or any witnesses to be examined to enable it to pronounce judgment - or for any other substantial clause.
51. Here, in this particular case, to get those documents admitted under Order 41 Rule 27, the plaintiff/respondent admittedly, however, could not fulfil the conditions as laid down in Clauses (a) and (aa) of Order 41 Rule 27 of Civil Procedure Code. And that being the position, the aforesaid conditions incorporated in those clauses not being satisfied, those cannot be allowed to be taken or be produced as additional evidence before the Appellate Court. So, this application under Order 41, Rule 27 cannot at all be entertained.
52. Now, to conclude in the matter following the dictum of the Apex Court in AIR 1975 SC 1147 (supra), I am of the clear opinion that there is no other way out than to refer the matter to the Trial Court with a direction upon the Trial Judge to decide the issue, 'Is the suit barred by Sub-section (3A) of Section 13 of the West Bengal Premises Tenancy Act?' -- after giving an opportunity to the plaintiff/respondent to seek amendment of the plaint filing fresh pleadings for setting out the grounds under Clause (ff) and Section 13(1) and/or on the line as has been set out in their application under Order 41 Rule 27 of C.P.C. and if the plaintifff landlord seeks such amendment of the plaint filing fresh pleadings as directed above, the Trial Court shall allow the same and give an opportunity to the defendant/appellant to file additional written statement and thereafter opportunity shall also be given to the parties to adduce/produce fresh evidence if any, in respect of the amended pleadings and thereafter taking into consideration the evidence, so adduced and the evidence which are already on record, shall decide the aforesaid issue with utmost expedition preferably within 6 months from the date of communication of this order and thereafter shall return the evidence to this Court together with its findings and reasons therefor along with the lower Court record and other connected papers.
53. Let it also be made clear that excepting the aforesaid issue, parties will not be allowed to agitate any other issue before the aforesaid Court.
54. The matter is accordingly referred to the Trial Court and the ld. Trial Judge is directed to dispose of the above issue in the light of the directions and observations, made in the body of this judgment.
55. Send down the lower Court record at once to the Trial Court.
56. This second appeal will be taken up for final disposal after the findings of the Trial Court is received on the aforesaid issue.