Balai Chandra Hazra v. Shewdhari Jadav

The Judgment pf the Court was delivered by 151 DESAI, J.-This appeal by special leave arises from a suit filed by B the plaintiff respondent for eviction of defendant appellant from the ground floor of premises No. 16/IA, Ram Ratan Bose Lane, Shyam­ bazar, which the appellant was occupying as a tenant on a monthly rent of Rs. 37 /-, on the ground that the respondent required the· same for his own use and occupation. The suit ended. in a decree ill favour of the respondent and was confirmed in appeal by the Additional :l>istrict Judge. The appellant thereupon preferred Second Appeal to the High Court at Calcutta. In the second appeal the appellant sought permission to adduce additional evidence to the effect that the require­ ment of the landlord stood satisfied because he had recovered posses- sion of four rooms on the first and second floors of the same building. A contention was also raised by him that the suit filed by the landlord was Incompetent, it having been instituted within a period o( three years of the acquisition of his interest as landlord in the premises by D transfer and was accordingly hit by sub-section (3A) of section 13 of the West Bengal Premises Tenancy Act, 1956, as amended by the West Bengal Premises Tenancy (Second Amendment) Act, 1969. The contentions raised by the appellant in the second appeal were over­ ruled by the High Court and the appeal was dismissed and the decree for eviction was aflirmf'...d. Upon a certificate granted by the learned single Judge of the High Court the appellant preferred appeal under E clause 15 of the Letters Patent. When the appeal under clause 15 of the Letters Patent was pending in the High Court, respondent plaintiff sought and obtained leave to amend the plaint and consequently the appellant defendant filed additional written statement. Thereafter the court framed fresh issues arising from the amended pleadings as under : "1. Is the premises in dispute reasonably required by the plaintiff-respondent for his ow'n occupation and for the occupation of the members of his family ? 2. Is the plaintiff-respondent in possession of any reasonably suitable accommodation ?" Oral and documentary evidence was permitted to be adduced and thereafter the appeal was set down for hearing. Ultimately the appeal was dismissed affirming the decree for eviction. Hence, the present appeal by special leave. It is an admitted position that the building of which suit premises form part was purchased by the landlord on October 1, 1963 and notice H dated June 16, 1964 terminating the tenancy was served upon the tenant. The landlord filed title suit No. 198 of 1964 on August 27, 1964, against the tenant. By the amending Act 34 of 1969 West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the 'parent Act') was amended. Gause. (f) of sub-s. (1) of s. 13 of the parent Act was substituted by s. 4 of the Amending Act as under :- " (f) subject to the provisions of sub-section (3A) and sec!ion l3A, where the premises are reasonably required by the landlord for purposes of buildil1g or re-building or for making thereto substantial additions or alterations, and such building or re-building, or additions or alterations, can­ not be carried out without the premises being vacated; (ff) 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 tht occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reason- ably suitable accommodation;" ' A new sub-s. (3A) was added after sub-s. (3) of s. 13 as under : D "(3A) where a landlord has acquired his interest in the premises by transfer, no suit for 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 : Provided that a suit for the recovery of the possession of the premis·es may be instituted on the ground mentioned i'n clause ( f) of sub-section ( 1) before the expiration of the said period of three years if the controller, on the application of the landlord and after giving the tenant an opportunity of being heard, permits, by order, the institution of the suit on the ground that the building or re-building, or the addi­ tions or alterations, as the case may be, are necessary to make the premises safe for human habitation." By s. 13 of the Amending Act, the amendments in the parent Act introduced by ss. 4, 7, 8 and 9 of the Amending Act were made retroactive, being applicable to suits including appeals which were pendi'ng at the date of the commencement of tlie Amending Act. Constitutional validity of sub-s. (3A) introduced in s. 13 was challenged before a Division Bench of the Calcutta High Court in Sailendra Nath v. S. E. Dutt.(') The High Court voided only that part of sub-s. (3A) of s. 13 by which it was made retroactive by applying it to pending suits and appeals as being ultra vires of Art. 19(1) (f) of the Constitution on the ground of umeasonableness. The matter came before this Court and in B. Banerjee v. Anita Pan, (2 ) Krishna Iyer, J. speaking for the majority observed as under :- (1) A.LR. 1971 Cal. 331. (2) (1975] 2 S.C.R. 774. ---- • I - B. c. IIAZRA v. s. JADAV (Desai, J.) 153 "We see in the amendment Act no violation of Art. 19(1) (f) read with 19(5). The same High Court, in a later case Kalyani Dutt v. Pron:zila Bala Dassi, ILR (1972) 2 Cal. 660, came to the same conclusion by what it called independently considering the question'. We discern nothing substantially different in the analysis or approach to merit review of our result. We hold s. J 3 of the Amend­ ment Act valid and repel the vice of unreasonableness dis­ covered in both the reported rulings of the High Court." While upholding constitutional validity of sub-s. (3A) of s. 13, in order to work out the mechanics of the applicatio'n of amending provisions to pending actipns, with a view to avoiding multiplicity of litigation as well as protraction of litigation it was suggested that the plaintiff landlord may put in fresh pleadings wherever the suit is pend- C ing and the tenant should be giveh an opportunity to fil·o his written statement and the Court should dispose of the .matter after giving both sides the right to lead additional evidence. It was observed that it would certainly be opened 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 wi.h the Court in exer­ cising this discretion. The proviso to sub-s. (3A) can also be com- D plied with if the plaintiff gets the permission of th•o Rent Controller in the· manner laid down therein before filing his fresh pleadings. Pursuant to the decisioh rendered by this Court in B. Banerjee's case (supra), the High Court in the pending Letters Patent Appeal permitted the plaintiff to amond the plaint whereupon the defendant filed additional written statement and fresh issues were framed as here- E inbefore set out and after permitti'ng the parties to lead oral and doeumehtary evidence the appeal was disposed of as hereinabove men­ tioned. Mr. Niren De appearing for the respondent at one stage attempted to. contend that to the extent sub·s. (3A) of s. 13 is made retroac- tive it is uitra vires article l9(l)(f) and thus he wanted to reopen the F controversy settled by this Court in B. Banerjee's case. We were not persuaded by any such submission and we accept the ratio in B. Baner- . jee's case that the retroactive operation of sub-s. (3A) of s. 13 does riot offend article 19(1) (f) on the ground of unreasonableness. Mr. A. K. Seri 1earned counsel who appeared for the appellant vigorously contended that the Bench hearing appeal under clause 15 of the Letters Patent has no jurisdiction to take fresh evidence even if it permits amendment of the pleadings. While working out the mechanics consequent npon upholding the validity of sub-s. (3A) it was open to the Court hearing the appeal under clause 15 of the Letters Patent to grant permission to amend the pleadings. By a catena of decisions Order 6, Rule 17 of the Code of Civil Procedure has· been interpreted to mean that leave to amend may be granted at any stage of the proceedings which may include appeal or even second appeal. But, urged Mr. Sen, that the jurisdiction of the Court hearing an appeal under clause 15 does not extend to 11-2!!SCI/78 fl taking and appreciating evidence and recording findings of facts on issues that may_have to be determiued arising from amended plead­ ings. It was said that Order 41, Rules 25 and 27 are exhaustive of the powers of the appellate court to take additional evidence. Simul­ taneously it was pointed out that s. l 00 prescribes the peripheral limits of the Court's jurisdiction while hearing a second appeal. Sec­ tion 100 as it stood at the relevan! time permitted a second appeal to the High Court from every decree passed in appeal by any Court subordinate to High Court on any of the following grounds, viz., (a) the decision being contrary to law or to soine usage having the force o~ law; (b) the decision having failed to determine some material issue of Jaw or usage having the force of law; (c) a substantial error or defect in the procedure provided by the Code or by any otl;er law for the time being in force, which may possibly have produced error or de­ fect in the decision of the case upon the merits. It was submitted that if this is the peripheral limit of jurisdiction of a court hearing s<cond appeal, it is just not conceivable that a Bench hearing an appeal under clause 15 of the Letters Patent upon a certificate granted by the single Judge could have a wider jurisdiction than the court hearing the second appeal. There is a near concensus amongst the various High Courts that ordinarily an appellant is not entitled in an appeal under clause 15 to be heard on points which have not been raised before the judge from whose judgment the appeal is preferred. Now, if in second appeal the findings ,df fact recorded by the first appellate couif are taken as binding un!ess fresh additional evidence is permitted to be led when again appreciation of evidence to record a finding of fact would become necessary, that position is not altered even if amendment of pleadings is granted which puts into controversy some new facts al­ leged in amended pleadings and therefore the Court hearing the second appeal after granting amendment could not take over the func­ tion of the trial court or the first appellate court and undertake appre­ ciation of evidence and record finding< of facts.· That is not the function envisaged by the Code of the Court hearing second appeal under s. 100. This becomes crystal clear from the provision contained in s. 103 which defines the po_wer of the High Court to determine a qnestion of fact while hearing. second appeal. But this power of the Court is limited to evidence on record which again is sufficient to determi~e an issue of fact necessary for disposal of the appeal and which has not been determind by the lower appellate Court or which has been wrongly determined by such court. When pleadings are amended at the stage of the appeal under clause 15 of the Letters Patent and fresh allegations of facts arc thus introduced in the contro­ ver<'J wl1ich necessitate additional evidence being permitted it would not be open to the Court to proceed to record evidence and to ap­ preciate the evidence and record findings of fact, a function which even ordinarily iS not undertaken by the High Court hearing the second appea], milch less can it be done while hearing an appeal under clause 15 of the Letters Patent. When on account of a subsequent change in law, amendment of the pleadings is granted which raises disputed question> of fact, the situation would not be one governed by Order \ - I j - B. c. HAZRA v. s. JADAV (Desai, J.) 15 5 41, r. 27. At that stage it could not be said that the appellate court is permitling production Of "additional evidence, oral or documentary on !be ground that the court from whose decree the appeal is preferred has refused to adduce evidence which ought to have been admitted or the appellate court requires any documents to be produced or any witness to be .~xamined to enable it to pronounce judgment. Nor would the situation be one which could be covered under the expres- B sion "other substantial cause". Once pleading are permitted to b~ amended which bring fnto focus altogether new or fresh disputed questions of fact which have to be resolved on additional evidence that wouJ.d. be necessary to be led, the function is one of appreciation of evidence more appropriately to be undertµken by the trial court or at the most the first appellate court but not the High Court hearing the ~econd appeal or an appeal under clause 15 of the Letters Patent. It is not for a moment suggested that at the stage at which leave to amend pleadings has been granted the High Court was not competent to grant it. ln fact, in an identical situation in B. Baner;ee's case (supra) this Court had in terms indicated that to avoid hardship to the plain- tiff landlord tbe appropriate thing would be to grant leave to amend the pkading and give an equal opportunity to the defendant to cont­ rovert if be so chooses what the plaintiff contends by amended plead­ ing, But once lhat is done immediately the question of jurisdiction of the court h~aring the appeal under clause 15 of the Letters Patent would arise and if the appeal was entertained against the judgment ren­ dered by the High Court in second appeal tbe limitations on the power of the Higll Court hearing the second appeal will ipso facto limit and circumscribe the jurisdiction of the appellate Bench. If the High Court while 11earing second appeal, conceding that it could have al!ow­ cd amendment of pleading, where tbe amended pleadings substantially raise disputed questions of fact which need resolution afresh after additional evidence, could not undertake the exercis'e of recording evidence and appreciating it and recording findings of fact, but could appropriately remand the case to the trial court, the Bench hearing the appeal against the judgment in second appeal could not enlarge its jurisdiction b~undertaking that forbidden exercise. It would, there­ fore, appear that when a Bench of a High Court is bearing an appeal preferred upon a certificate granted under clause 15 of tbe Letters Patent by a single judge of" tbe High Court who by bis judgment has disposed of the second appeal tbe appellate bench would be subject to the limitation on its power and jurisdiction to appreciate or re­ appreciate evidence and to record findings of fact which were never raised before the trial court or the first appellate court as tbe plead­ ings w,re permitted fo be amended by it and tbe question was raised for the first time before it, to tbe same extent as the High Court hear­ ing second appeal with constraints of ss. 100 and 103 of tbe Code. It must be distinctly understood that admitting evidence is entirely diffe­ rent from appreciating it and acting upon it. The Judicial Committee -of the Privy Council in Tndrajit Pratap Sahi v. Amar Singh & Ors.,(') was concerned with tbe ambit of jurisdiction of tbe appellate court to admit evidence under Order 41, r. 27. It was held that tbe jurisdic- (]) Law Report' 50 I.A. 183. 156 SUPREME COURT REPORTS (1978] 3 s.c.R- tio.n can be exercised at the instance of a party and the Jndicial Com­ llllttee has unrestricted power to admit documents where sufficient !!f?~nds have, been .s~oY:'n for the!r h!lving not been produced at the llllhal stage 01 the lit1gal!on. ThIS view was affirmed by this Court in Surinder Kumar & Ors. v. Gian Chand & Ors.(') But that has no relevance to the situation under discussion here. · Mr. De, however, contended that the appellant had agreed or in fact had never objected to the appellate Bench examining witnesses and recordJng findings of fact on appreciation of evidence and that it would not now be open to the appellant to resile from the position adopted by him and he is estopped from doing it. This contention raises the vexed question whether consent can confer jurisdiction on a court which lacks inherent jurisdiction. If the Court lacks inherent iiuisdiction no amount of consent can confer jurisdiction. This is settled by a long line of decisions commencing from Ledgard v. Bull,(2) wherein the Jndicial "Cpmmittee was examining the question whether a District Jndge could entertain a suit complaining infringe~ ment of patent not upon institution before him but by transfer from the Court of the subordinate Jndge where it was instituted. It was accepted that if the suit was instituted in the court of the District Judge, the Distt. Jndge had jurisdiction to entertain it but a very narrow and limited question was examined whether the Dist!. Judge could enter­ tain it on transfer from the Court of the Subordinate Jndge. It was also pointed out that the defendant who had raised a contention as to the jurisdiction of the Distt. Jndge to hear the snit had given }!is positive consent to the transfer of the suit. Even then the Judicial Committee held as under : "The District Judge was perfectly competent to enter­ tain and try the suit, if it were competently brought, and their Lordships do not doubt that, in such a case, a defendant may be barred, by his own conduct, from objecting to irregulari­ ties in the institution of the suit. When the Judge has no inlwrent jurisdiction over the subject-matter of a suit, the parties cannot, by their mutual consent, convert it into a proper judicial process, although they may constitute the Judge their arbiter, and be bound by his decision on the merits when these are submitted to him". Consent in such a situation could not be interpreted as waiver of the objection nor could it confer jurisdiction where the Court inherent­ ly lacked jurisdiction to try the suit. This very principle was re-affirmed in Meenakshi Naidoo v. Subramaniya Stistri;\3) wherein the High Court in appeal against the order of the District Judge had set aside the order of the Distt. Judge appointing the appe!Tant on the Committee of the Pagode in the Madras Presidency. When the matter was before the High Court it was never (I) [1958] S.C.R. 548. (2) Law Reports 13 I.A. 134 at p. 145. (3) Law Reports, 14 I.A. 160. I \ .. - I B. c. HAZRA v. s. JADAV (Desai, J.) 157 £ontended that the appeal was incompetent and such a contention was raised before the Judicial Committee for the first time. Following the decision in Ledgard v. Bull (supra), it was held that when the Judge has no inherent jurisdiction over the subject matter of a suit, the parties cannot by their mutual consent convert it into a proper judi­ <:ial process, although they may constitute the Judge their arbiter, and be bound by his decision on the merits when these are submitted to him. Therefore, the failure on the part of the appellant to object to the High Court hearing an appeal under clause 15 of the Letters Patent taking oral evidence in respect of the amended pleadings would not clothe the Bench with jurisdiction to record fresh oral evidence and proceed to appp2ciate the same and record findings of facts. Mr. De next contended that the contention now raised by the '3ppellant is not open to him in view of the limited leave granted by this Court under Article 136 of the Constitution. While granting -special [eave to appeal against the judgment of the Division Bench .of the High Court, this Court made an order as under : "Special leave is granted limited only to grounds Nos. 2 and 5 of the special leave petition." Grounds Nos. 2 and 5 are as under : "2. For that the impugned judgment of the High Court is vitiated by manifest error in Jaw that by granting amendment of plaint on July 11, 1975 which was origi­ nally filed on June 16, 1964 within 3 years from the purchase of the suit premises by the landlord, the suit can be taken out of the mandatory prohibition laid down in sub-section (3A) of section 13 of the W.B. Premises Tenancy Act. 5. For that the impugned judgment is vitiated by a mani­ fest error of law and the learned judges failed to take into consideration the provisions of section 17E of the W.B. Premises Tenancy Act introduced by the W.B. Pre­ mises Tenancy (Amendment) Act, 1970 to the effect that even the decrees passed in earlier suits in contravention of the provisions of sub-section (3A) of section 13 of the Act should be vacated." A very narrow, lite.ral and verbal interpretation of grounds Nos. G 2 and 5. may prima facie indicate that tl~e question in terms now rais- ed would not be covered by ground either 2 or 5. But it would not be proper to put too narrow an interpretation on tl)e language employ- ed in grounds _nos. 2 and 5. When leave is limited to certain grounds it would not be appropriate to put a very narrow and gram­ matical construction of the grounds as if we were construing a statute ), or some rule, regulation or order of a public authority. More often H it is our experience while hearing applications for special leave that -grounds set out in special leave application are overlapping and fairly often repeated, and even occasionally vague. Therefore, as far as 158 SUPREME COURT REPORTS (1978) 3 S.C.R. possible, the grounds should not be very strictly construed or should not be construed in such a manner as to make the special leave grant­ ed under Article 136 self-defeating. Attempt of the Court must be t.o find out what was the .grievence or contention that was being put tortl1 before the. COOJt which appealed to the Court in granting: special !eave under Article 136. . Article 136 confers power on this Court irr 1t~ d1~cret10n to grant specrn! leave from any judgment, decree, deter­ mmat10n, se.ntence or order m any case or matter, passed or made by any court or tribunal in the territory of India. Ordinarily once spe­ cial le~ve is granted iJ; is against tbe judgment, decree, etc. However, by practice this Court sometimes limits the leave to certain specific points. If the leave is limited to specrlic points, obviously the whole case is not open before the Court hearing the appeal. In Nafe Singh & Anr. v. State of Haryana,( 1) this Court declined to examine the question whether O!l evidence the case was proved to the satisfaction of the Court, because special leave was limited to the question of sen­ tence. Similarly, in Jagdev Singh & Anr. v. State of Punjab,("} leave was limited to the applicability of the Probation of Offienders Act and a<;cordingly this Court did not permit enlargement of the leave observing that the scope of the leave was confined to the limitations spec;ified in the order granting special leave and will not be enlarged for considering the correctness of the conviction for the particular offence. It was, however, urged that where a certificate is granted by the high Court under Article 133 specifying the question of law in respect of which the certificate is granted, this Court did not limit the scope of the appeal to the terms of the certificate. In Addagada Raghavamma· & Anr. v. Addagada Chenchamma & Anr.(3), while negativing a pre­ liminary objection to the effect that the certificate granted by the High Court under Article '133 (1) must govern the. scope of the appeal to· the Supreme Court for otherwise the said certificate would become otiose, the Court held that the terms of the certificate did not circums­ cribe the scope of the appeal and once a proper certificate is granted the Supreme Court undoubtedly has power as a court of appeal tO' consider the correctness of the decision appealed against from every stand point whether of questions of fact or law. It was held that if the certificate is good, the provisions of Article 133 did not confine the scope of the appeal to the certificate. This decision cannot help the· appellant because when a certificate is granted l!llder Article 133(1) as it stood prior to the Constitution (Thirtieth Amendment) Act, 1972, an appeal lay to the Supreme Court from any judgment, decree or final' order, if the High Court certified the case falling under clauses (a), (b) or ( c) . Once a certificate is granted this Court undoubtedly has the power as a Court of Appeal to consider the correctness of the·decision appealed against from every standpoint whether on questions of !act or law. It may in its'wisdom not interfere with the concurrent findmgs of fact but there is no bar to its jurisdiction from interfering with the same. But when an appeal is preferred under Article 136 and the· leave is limited to the specific grounds, the scope of appeal can.not be (1) [1971] 3 s.c.c. 934. (2) A.LR. 1973 S.C. 2427. (3) [1964] 2 S.C.R. 933. \ - i - - ,, B, c. HAZRA V, s. JADAV (Desai, !.) 159 enlarged so as to extend beyond what is permissible to be urged in support of the grounds to which the leave is limited. Undoubtedly, therefore, the scope of the appeal would be limited to the grounds in respect of which the leave is granted, but having said this, it must be made distinctly clear that the grounds must be broadly construed to ascertain the real question raised therein and not in a narrow or pedan­ tic manner by literal interpretation of the language used. Again, it must be borne in mind that, although, an order of this Court confining special leave under article 136 to certain points would imply a rejection. of it so far as other points are concerned, yet, this Court has a cons'.1tutional power under article 137 of reviewing its own order, This power may, in· very exceptional cases, consistently with, rules made under article 145 of the Constitution, be so exercised, in the interests of justice, as to expand the leave itself subject to due notice to the respondents concerned that fair opportunity to meet the results of an extension of groµnds of appeal. The appellant tenant was substantially contending that in view of the introduction of sub-section (3A) of s. 13, the suit when instituted was incompetent and that on a proper construction of s. l 7E introduc-­ ed in the parent Act by s, 4 of the West Bengal Premises Tenancy (Complete) Act, 1970, the decree would be unenforceable. The con­ tention was that by amendment of pleading a suit when instituted was incompetent, should not have been rendered competent. From that springs the question about the court's jurisdiction to deal with, the suit subsequent to amendment of pleadings, If it is one compact ground it can be said that the contention raised herein, if not explicit, would certainly be implicit in the grounds limited to which special leave wa~ granted and, therefore, we cannot refuse to entertain it. It was lastly urged that ultimately whether the High Court should appreciate the evidence. and record findings of fact or remand it to the trial Court is a matter within the discretion of the High Court and that if the High Court has exercised the discretion one way, this Court, should not interfere with the same, It was further said that rules of procedure are not made for the purpose of hindering justice but for advancing substantial justice. It was, further said that the appellant tenant was given full opportunity to produce his evidence and had the benefit of appreciation of evidence by a Bench of two judges of the High Court and that it would be paying undue and undeserved respect to the rules of procedure to remand the matter at this stage, Once the amendment is allowed, the basic approach to the suit would undergo a change, Sub-section (3A) of s, 13 bars a suiti for eviction on any of the grounds mentioned in clauses (f) and (ff) of sub-s. (l l of s, 13 for a period of three years since the acquisition of interest by landlord in the premises. The suit should, therefore, have been filed three years after the purchase of property by the respondent. The respondent would have been then required to show as to whether he required the premises and whether he had other reasonably suitable accommodation. The enquiry would have been related to the time when the suit could have been competently instituted. After focusing attention on this point, the trial court would appreciate evidence and record findings of fact which can be re.-examined by the first appellate court being the final court of facts. This very opportunity was·denied to, the appellant by the Bench arrogating the jurisdiction to itself to record evidence ai;id to proceed to appreciate the same and reach conclusions of fact which become final. Therefore, considerable prejudice was caused to the appellant by the procedure followed by the court and this Court will be amply justified in interfering with the same. The remand, there­ fore, is inevitable. Uefore concluding the judgment, we must advert to one contention raised by Mr. De_ for the respondent. It was urged that the appellant tenant havmg faded to take advantage of s. 17E introduced by the '.'V~st Bengal Pren;iises Tenancy Amendment (Complete) Act, 1970, it. 1s not open to bun to challenge the decree of eviction passed against him. By s. 17E power was conferred upon the court to set aside cer­ tain decrees passed in suits brought by transferee landlords within three years of the date of transfer. In fact this was the necessary corollary of the in'roduction of sub-s. (3A) in s. 13 and making it retroactive. There may be tenants· against whom decree· for eviction was made at the instance of traru;feree landlords whose suits would be otherwise incompeteat in view of sub-s. (3A) of s. 13. · Now, it may be that even though the decree for eviction was passed by the Court, the tenant may have continued in possession because some proceedings may be pending or for some other reason. In such a situation, upon an application made by the tenant within a period of 60 days· from the date of commencement of the Amending Act, the Court was required to set aside the decree for eviction. When appeal is pending it would be open to the tenant to raise the contention that the suit has \J~come incompetent, but where the appeal is not pending or an execution application is pending and the tenant is still not physically evicted, it would be open to him to take advantage of the provisions contained in s. 17E. The present appellant appears to have made an application purporting to be under s. 17E on 25th April 1970 in the Court of Additional Muru;if at Sealdah. On this application notice was ordered to be issued to the other side. Notice of the application appears to have been refused by the respondent looking to the order sheet of the learned Munsif dated 9th September 1970. This was treated as pro­ per service and the present appellant was directed to take steps to pro­ duce certain unpunched court-fee stamps. The appellant appears to have failed to take necessary steps and the application was rejected for want of prosecution. It was contended that once the appellant applied under s. 17E for setting aside the decree of eviction, the decree has become binding and it is not open to him to question the correctness of the decree. There is no merit in this connection because the appeal In which the ·decree was questioned was still pending. The provision contained in s. 17E provides an additional remedy covering classes of cases of tenants agairu;t whom decree for eviction was made but there was no pending appeal against the decree. If the submission of Mr. De is accepted, t,he provisions contained in s. 17!'J would be rendered nugatory. We specifically asked Mr. De a question as to what would \ .. - B. c. HAZRA v. s. JADAV (Desai, J.) 161 be the position where a decree for eviction is made on two grounds, A one nuder s. 13(1) (f) and the other under other provisions of s. 13 and the appeal of the tenant is pending. Would the appeal become in­ competent if the .tenant does not apply under s. 17E ? If the tenant applies under s. 17E he can get relief on the only ground that the dec- ree was on the gr1olmd mentioned in clause (f) of suh-s. (1) of s. 13 and not the other grounds because relief was sought to be granted by the provisions contained in s. 17E to those tenants against whom B decree for eviction was made under s. 13(1) (f). Would the appeal in such a situalion become incompetent in part and remain competent for the other part ? Therefore, it could not be said that once a specific remedy under s' .. 17E is provided for the benefit of tenants under a decree for eviction on the ground mentioned ins. 13(1) (f), that is the only way and no other in which he could get relief. If so, his appeal , C would become incompetent. Remedy under s. 1 7E is an additional remedy. More particularly it appears for the benefit of those tenants against whom decree for eviction was made under s. 13 (1) (f) and appeal by whom was not pending so that they could protect themselves against eviction by landlords whose suits had become incompetent in view of the provisions contained in sub-s. (3A) of s . .13. Accordingly, this appeal is allowed and the decree for eviction made by all the Courts against the appellant is set aside and the suit is remanded to the trial court to proceed further from the stage after amendments of pleading• were granted by the High Court and the rele­ vant issues were framed pursuant to the amended pleadings. In the circumstances of this case there shall be no order as to costs of appeal .in this Court. .S.R. Appeal allowed : Case remanded .