ANANDILAL BHANWARLAL Vs. KASTURI DEVI GANERIWALA

JUDGEMENT

(1.) THE judgment of the court was delivered by

(2.) A decree for eviction was passed against the appellants, original defendants 1 and 2, in Ejectment Suit No. 1247 of 1964 by the City Civil court at Calcutta. A division bench of the High court of Calcutta has confirmed the decree passed by the trial court. A certificate of fitness having been granted by the High court, under Article 133 (1) (a) of the Constitution of India, the appellants are before this court.

(3.) THE building in which the suit premises are situated was purchased by the respondent-landlord on 13/03/1963. THE suit for eviction giving rise to the present appeal was instituted on 23/06/1964. Admittedly, the suit was instituted within the period of three years from the date of the purchase. Under the circumstances the suit was incompetent at the point of time when it was instituted. THE decree for eviction on the ground of requirement for personal occupation could not therefore have been lawfully passed against the appellants. THE appellants should have succeeded on this ground in <PG>444</PG> the High court itself but for the fact that the High court was of the opinion that S. 13(3-A) introduced by the second amending Act in 1969 to the extent that it was given retrospective effect was ultra vires being violative of Article 19(l)(f) of the Constitution of India. In B. Banerjee v. Anil Pan this court has upheld the constitutionality of the said provision even insofar as its retrospective operation is concerned. THE appeal must therefore succeed and the decree for eviction on this ground must be set aside. Of course, the respondent-plaintiff could have been permitted to file a fresh plaint claiming eviction under S. 13(1)(ff) of the amended Act and the matter could have been remanded to the trial court. But in the facts and circumstances of the case it would not be appropriate to adopt this course.. Twenty years have passed by. THE claim will have to be tested in the light of the situation as it exists now in 1984. It is therefore more appropriate to accord liberty to file a fresh suit on the ground that the premises are reasonably required by the landlady for her own occupation and that she is not in possession of any reasonably suitable accommodation as envisioned by S. 13(1) (ff) of the Act. It must be made clear that the question as regards the reasonableness of the requirement and the validity or otherwise of the claim on merits will have to be examined afresh in the light of the evidence that may be adduced at the trial in case the landlord files a fresh suit for eviction on this ground as per the liberty being granted.