Sudhindra Mohan Guha, J.@mdashThis appeal arises out of the decision of Shri A.K. Nandi, learned Sub-ordinate Judge, Asansol, reversing the judgment and decree of the Munsif, 1st Court Asansol, in the suit being T. S. No. 123 of 1966 for ejectment. The plaintiff purchased the suit property on 20.4.64 for her own use and occupation. The defendant was a tenant in respect of the suit premises on a monthly rental of Rs. 60/- payable according to English calendar month from before purchase of the same by the plaintiff. The defendant attorned to the plaintiff by payment of rent and otherwise. The plaintiff determined the tenancy on the expiry of the month of August, 1865 on the ground of reasonable requirement. The plaintiff commenced the suit, as the defendant failed and neglected to vacate inspite of the service of the notice to quit.
The defendant contested the suit. The reasonableness of requirement was disputed.
2. The learned Munsif on trial found that the tenancy had been determined by a valid notice to quit. It transpired in evidence that the plaintiff had been residing at a rented house at Masterpara, Hutton Road, Asansol, which was said to be insufficient for plaintiff''s requirement. Plaintiff''s husband who was on business had no go-down or office room in the rented house. During trial evidence was led to establish that the plaintiff had to vacate this rented house and had been living in the house of her father with her husband. In the above facts and circumstance the plaintiff''s requirement for the suit premises was found to be reasonable. In short the suit was decreed.
3. The defendant came in appeal. The first appellate court opined that there had been a change in the state of affairs after the institution of the suit. As the plaintiff had been living in the house of her father with her husband, the learned first appellate court confirmed the findings of the Munsif regarding reasonable requirement. But the suit premises had been described as holding No. 30 though the sale deed show that the plaintiff had purchased holding no. 31 under the sale deed Ext. 4. The suit was accordingly sent on remand for fresh trial within a limited scope with a direction that the plaintiff would be at liberty to amend the plaint on payment of costs to the defendant and both parties would be entitled to adduce fresh evidence as to the identity of the holding.
4. There was an argument on behalf of the appellant that the suit was not maintainable, as that had been brought within 3 years from the date of acquisition of title. The point was left unadjudicated and the trial Court was directed to come to a finding of his own on the point.
5. So the tenant defendant has come up in second appeal. Mr. Satyanarayan Roy, the learned Advocate for the appellant contends that in the facts and circumstances of the case the learned first appellate Court fell into an error in confirming the findings as to reasonable requirement. It is argued by him that it is not sufficient for the landlord to merely state that he requires the premises for his own occupation, but he has to establish that he has no other reasonably suitable residential accommodation. The plaint is said to be: silent as to the fact whether the landlord has any other reasonably suitable residential accommodation. In the absence of such an averment, according to Mr. Roy the plaintiff would not be entitled to any decree for eviction. In support of his arguments Mr. Roy relies on the decision in the case of Abdul Hamid v. Nur Mohammed, reported in AIR 1976 Del 328.
6. Next Mr. Roy refers to the Division Bench decision of this Court in the case of
7. The provisions of clauses (sic) and (ff), sub-section 3A were given retrospective operation and they would have effect in respect of suits, and appeals which were pending at the date of commencement of the Amending Act which came into operation on 14th November, 1969. The trial Court decreed the suit on 20th November 1968 and the appeal was disposed of on 17th March, 1971. So the amending Act came into force during the pendency of the appeal.
8. So after the amendment a landlord in order to obtain a decree for eviction must prove (1) that the landlord is the owner of the premises in suit, (2) that the premises are reasonably required by him for his own occupation and (3) that the landlord is not in possession of any reasonably suitable accommodation. According to Mr. Roy the third condition remains unagitated. True as stated earlier the plaint is silent as to the third point. Undoubtedly the onus in on the plaintiff to prove her case. The Supreme Court had occasion to consider this aspect in the case of B. Banerjee v. Anita Pan, reported in AIR 1975 S.C. 1144. In this case section 13 of the Amendment Act giving retrospective effect to section 13 (3A) was found to be valid. Again at page 1155 of the report their Lordships observed as follows :
There is no doubt that the purpose of the law is to interdict, for a spell of three years, institution of suits for eviction on grounds (f) and (fi) of sub-s. (3A). Section 13 of the Amending Act makes it expressly applicable to pending actions, so much so the operation of the prohibition is not simply prospective as in the Kerala case cited before us, Neelakandhayya. Pillai v. Sankaran. (1961 Ker LT 755) Section 13, fairly read, directs that the amendment made by S. 4 shall have effect in respect of suits, including appeals, pending at the commencement of the Act. We are therefore bound to give effect to Section 4 in pending actions, regardless of isolated anomalies and individual hardships. As earlier noticed, Section 4 has two limbs, It amends a Section 13 of the basic Act by substituting two new clauses (f) and (ff) in place of the old clause (f) of sub-sec. (1) of Section 13. Secondly, it forbids, for a period of three years from the date of acquisition, suits by new acquirers of landlord''s interest in premises, for recovery of possession on any of the grounds mentioned in cl. (f) or clause (ff) of sub-s. (1). The result of these two mandatory provisions has to be clearly understood. For one thing, although the old cl. (f) is substantially similar to the present cls. (f) and (ff) the latter impose more severe restrictions protecting the tenants Much more has to be proved by the landlord now before he can not eviction then when he was called upon the earlier corresponding provision of the basic Act. Moreover, the three years prohibition against institution of the suit is altogether new. It follows, therefore, that on the present allegations and evidence the landlord may not get a decree, his suit having been instituted at a time when he could not have foreseen the subsequent enactment saddling him with new conditions.
9. Thus it follows on the present averments and evidence the plaintiff cannot get a decree for ejectment, her suit having been filed at a time, when she could not have contemplated ground No. 3 mentioned before. After the amendment, she is to incorporate in the plaint that she is not in possession of any reasonably suitable accommodation.
10. In this view of the matter the findings of the learned first appellate Court as to reasonable requirement cannot be sustained and are vacated. The suit has been sent on remand by the first appellate Court, but the trial Court would now try the suit afresh on all points after giving the plaintiff an opportunity to amend the plaint not only on the point of identity of suit property, but also by inserting the words "That the plaintiff is not in possession of any reasonably suitable accommodation" -- on payment of costs, if any. It goes without saying that the defendant would be entitled to file additional written statement. Both parties would be at liberty to adduce fresh evidence. In view of the foregoing findings this appeal is allowed without costs. The judgment and decree of the first appellate Court are set aside and the suit is sent back on remand for fresh trial according to the observations made above.
Appeal allowed without costs.
