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Attorney(S)
  • Promotha Nath Mitter
  • Ranajit Kumar Banerjee
Judges
  • N.C Mukherji, J.
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Attorney(S)
  • Promotha Nath Mitter
  • Ranajit Kumar Banerjee
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  • N.C Mukherji, J.
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This appeal challenges the judgment and decree dated 30 January 1968 of Sri P.K. Banerjee, Additional District Judge, Alipore (Title Appeal No. 1000 of 1967), which affirmed the judgment dated 4 May 1967 of Sri R.K. Ghatak, Munsif, Sealdah (Title Suit No. 483 of 1963). The plaintiff originally instituted a suit seeking possession of the suit premises on the ground that she required them for her own personal use and occupation. The defendant contested the suit. The learned Munsif found that the plaintiff had failed to prove reasonable requirement and dismissed the suit; the Additional District Judge also dismissed the plaintiff's appeal. The present appeal followed from that dismissal.

While the second appeal was pending, the plaintiff filed an application (20 September 1976) to amend the plaint following the Supreme Court decision in B. Banerjee v. Anita Pan (reported (1975) 1 SCC 166 : AIR 1975 SC 1146). Paragraph 6-A was incorporated then, and additional issues were framed. Later, on 9 August 1977 the plaintiff applied to further amend the plaint to add paragraphs (labelled 7-A and 7-B in the petition) alleging that during the pendency of the appeal (in 1974) the defendant sublet a portion of the premises to one Satyendra Kumar Roy who ran a business there and obtained a trade licence. The respondent opposed that application and filed affidavits denying the subletting. The court was required to decide whether the application to take into account such subsequent events and amend the plaint at this stage should be allowed.

Legal Issues Presented

  1. Whether an application to amend the plaint to plead a subsequent event (alleged subletting occurring during the pendency of appeal) can be allowed in a second appeal.
  2. Whether the taking into account of subsequent events would change the cause of action or the nature of the suit for eviction (i.e., whether allowing the amendment would impermissibly alter the suit).
  3. If amendment is permitted, whether the plaintiff must be permitted to adduce fresh evidence on the subsequent events and whether the matter should be remitted for recording such evidence.

Arguments of the Parties

Appellant's Arguments (Mr. Promotha Nath Mitter)

  • The court can allow amendment to add grounds based on subsequent events so as to shorten litigation and do justice; reliance placed on decisions such as Tinkari Das v. Jamuna Bala Dasi and Ayesha Khatoon v. Durga Sahaya, which permitted consideration of subsequent events and amendment where the nature and character of the suit was not affected.
  • Under the West Bengal Premises Tenancy Act a statutory tenant may be liable to eviction for subletting or wrongful user even after contractual tenancy has been determined; therefore pleading subletting does not change the nature of an eviction suit (relying on Dr. R.D. Anklesaria v. Mrs. Kamala Roy and related reasoning).
  • Authorities (including Sikharchand Jain v. Digamber Jain Praband Karini Sabha and Pasupuleti Venkateswarlu) establish that courts may take notice of events occurring after institution of the suit to do complete justice and shorten litigation; allowing the amendment would not change the cause of action because the suit is for eviction after notice under the Premises Tenancy Act and it is not necessary to state grounds of ejectment in the notice.
  • If amendment is allowed, it will not change the cause of action and will avoid multiplicity of proceedings; the plaintiff can therefore rely on subsequent events in this suit rather than instituting a fresh suit.

Respondent's Arguments (Mr. Ranjit Kumar Banerjee)

  • The facts are different from the cases relied upon by the appellant: where a subsequent event is admitted it may be taken into account, but where the subsequent event is disputed the court should not permit a late amendment that substantially changes the case.
  • The proposed amendment would change the nature of the suit (from reasonable requirement to a ground based on subletting occurring long after institution and after decrees below) and would necessitate fresh evidence and effectively a rehearing; reference was made to S. Rajagopal v. C.M. Armugam to show limitations on taking new material at appeal stage.
  • If the allegation of subletting is correct, the plaintiff could institute a fresh suit for ejectment on that ground; permitting the amendment now would unfairly prejudice the defendant because new evidence would be required and the case would change in character.
  • Reliance was also placed on decisions such as ILR (1969) 1 Cal 582 (S.B. Sen v. Tejendra Chandra Bhow-mik) to argue that subletting must be proved and that concurrent findings below on reasonable requirement cannot be lightly disturbed.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court in this Opinion
B. Banerjee v. Anita Pan, (1975) 1 SCC 166 : AIR 1975 SC 1146 Used as a reason why an amendment of the plaint became necessary during the pendency of the appeal. The court notes that an amendment application was filed in view of this decision and had been allowed earlier to insert paragraph 6-A; it forms part of the procedural history leading to the present amendment application.
Tinkari Das v. Jamuna Bala Dasi, AIR 1973 Cal 448 The court may allow an amendment to add an additional ground based on a subsequent event (e.g., determination of tenancy by efflux of time) where the nature and character of the suit for recovery of possession remains unaffected; taking subsequent events into consideration shortens litigation and serves ends of justice. Relied on by appellant to support allowing the amendment for subletting; the present court considered this principle in favour of permitting subsequent events to be pleaded.
Ayesha Khatoon v. Durga Sahaya, (1976) 3 Cal HC (N) 674 : AIR 1977 Cal 108 Bench decision reiterating the same principle as Tinkari Das: courts can consider subsequent events and allow amendments without affecting nature of the suit. Relied upon by appellant and treated as supportive authority for taking into account subsequent events in eviction suits under relevant tenancy law.
Dr. R.D. Anklesaria v. Mrs. Kamala Roy, (reported 1977) Under the West Bengal Premises Tenancy Act, a statutory tenant who continues as a tenant after contractual tenancy is determined can be evicted for subletting or wrongful user under Section 13; therefore pleading subletting does not change the nature of an eviction suit and subsequent acts attracting Section 13 can be considered. The court relied heavily on this distinction between a Transfer of Property Act tenant and a statutory tenant under the Premises Tenancy Act to conclude that subletting alleged during pendency is a permissible ground to be added and will not change the nature of the suit for eviction.
Sikharchand Jain v. Digamber Jain Praband Karini Sabha, (1974) 1 SCC 675 : AIR 1974 SC 1178 General principle: ordinarily suit is tried based on cause of action as at institution, but court may take notice of events after institution to afford relief in changed circumstances, do complete justice, and shorten litigation. Invoked by appellant to show courts (including appellate courts) may take notice of events occurring after institution; the present court cites this principle in support of allowing the amendment to plead subsequent subletting.
Pasupuleti Venkateswarlu v. The Motor and General Traders, (1975) 1 SCC 770 : AIR 1975 SC 1409 Where a subsequent event during pendency of a rent-control or related proceeding has material bearing on the landlord's right to evict, appellate courts may take cognizance of the new development. Appellant relied on it; the court cited it to support the proposition that new events materially affecting eviction rights may be considered on appeal.
Nuri Mian v. Ambica Singh, 20 Cal WN 1099 : AIR 1917 (Cal) Decrees should conform to parties' rights as of institution but courts may take notice of events since institution to mould decrees where relief originally claimed is inappropriate due to changed circumstances or to shorten litigation and do justice. Referenced by respondent but the court observed that the principles stated did not advance the respondent's position; the court used the general maxim to support its approach of moulding relief in changed circumstances when appropriate.
Ram Ratan Sahu v. Mohant Sahu, (1907) 6 Cal LJ 74 Earlier articulation of the principle that courts may adapt decrees to events occurring after institution where necessary to do justice. One of the older authorities cited by respondent; the court found these older formulations did not support refusing the amendment in the facts before it.
Rai Charan Mandal v. Biswa Nath Mandal, 20 Cal LJ 107 : AIR 1915 Cal 103 Similar statement of the principle permitting courts to mould relief in light of subsequent events. Cited among older authorities; the court did not find these authorities decisive against allowing the present amendment.
Sm. Balak Bala Dassi v. Jadu Nath Das, 34 Cal WN 634 : AIR 1931 Cal 45 Another Calcutta decision recording the general approach to moulding decrees in light of changed circumstances. Cited by respondent; the court concluded these authorities did not preclude allowing the present amendment.
S. Rajagopal v. C.M. Armugam, AIR 1969 SC 101 Caution against summoning fresh documentary or other evidence at the appellate stage under Order 41, Rule 27 where doing so would require substantial oral evidence and would be unjustified; appellate courts should be cautious about permitting entirely new evidence/issues at appeal stage. Relied upon by respondent to argue against permitting the amendment because it would require fresh evidence and potentially a rehearing; the court considered this point but permitted amendment subject to remittance for recording evidence rather than deciding the merits at appeal stage.
ILR (1969) 1 Cal 582 (S.B. Sen v. Tejendra Chandra Bhow-mik) Held that sub-letting need not subsist until date of institution; it suffices that sub-letting without landlord's written consent is proved; concurrent findings below on subletting will not be disturbed in second appeal. Relied upon by respondent to stress proof requirements for subletting; the court noted the rule but allowed amendment so that proof can be led and the issue determined (including by courts below on remand).
Surya Properties Pvt. Ltd. v. Bimalendu Nath Sarkar, AIR 1964 Cal 1 (Special Bench) It is not necessary to mention the grounds of ejectment in a notice under S.13(6) (read with Section 106 Transfer of Property Act); the tenant is determined by such notice and grounds need not be stated in the notice. The court observed this authority supports the proposition that adding a ground later does not change the cause of action for an eviction suit; the decision assisted the appellant's position and supported allowing the amendment.

Court's Reasoning and Analysis

The court framed the narrow procedural question before it: whether an application to amend the plaint so as to plead a subsequent event (alleged subletting in 1974 occurring during the pendency of the appeal) could be allowed at the stage of the second appeal. The court did not decide the factual question whether subletting in fact occurred; instead it focused on the legal permissibility of admitting such an amendment and of taking into account subsequent events in the context of a statutory eviction suit governed by the West Bengal Premises Tenancy Act.

The court surveyed competing authorities. It accepted the principle that ordinarily a suit is determined on the cause of action as it existed at institution, but that courts (including appellate courts) may take notice of events occurring after institution in order to do complete justice and to shorten litigation (citing Sikharchand Jain and related authorities). The court also relied on decisions from the Calcutta High Court and the Supreme Court which held that where subsequent events do not change the nature and character of the suit, amendment and consideration of such events are permissible (Tinkari Das, Ayesha Khatoon).

Critically, the court emphasized the statutory context: under the West Bengal Premises Tenancy Act (as explained in Dr. R.D. Anklesaria) a statutory tenant who remains a tenant after contractual tenancy has been determined may be liable to eviction for acts like subletting under Section 13. Therefore, pleading subletting as a ground for eviction does not alter the nature of the suit for eviction under the Premises Tenancy Act; the suit remains one for recovery of possession. The court considered the respondent's contention that a disputed subsequent event should not be permitted to be added at appeal stage and that allowing the amendment would necessitate fresh evidence and rehearing. The court acknowledged the caution in S. Rajagopal but concluded that this did not preclude permitting the amendment where justice and avoidance of multiplicity of proceedings pointed in favour of allowing the new ground to be pleaded and tried.

On balance and applying these principles, the court held that it was not prevented, even in a second appeal, from taking into consideration the fact of subletting as alleged by the plaintiff. The court therefore allowed the amendment application, but made clear that the plaintiff must prove the alleged subletting by adducing evidence and that the defendant may adduce evidence to disprove it.

Because fresh evidence would be required, the court remitted the matter to the learned Munsif for the recording of fresh evidence on (a) whether the plaintiff has any other reasonably suitable accommodation in Calcutta besides the suit premises and (b) whether the defendant in 1974 sublet a portion of the suit premises to Satyendra Kumar Roy. After the Munsif records such evidence, a report is to be sent back to the appellate court. The appeal itself was kept pending and the court requested expedition due to the long pendency.

Holding and Implications

Core Holding: Application allowed; amendment of the plaint to plead the subsequent event (alleged subletting) is permitted, and the matter is remitted for recording fresh evidence.

Implications for the Parties

  • The plaintiff's application filed on 9-8-77 is allowed; the paragraphs proffered (7-A and 7-B in the petition) are to be added to the plaint as paragraphs 6-B and 6-C.
  • The plaintiff must prove by evidence the alleged subletting and the other matters arising from the earlier amendment (filed 20-9-76).
  • The defendant is permitted to adduce evidence to disprove the alleged subletting.
  • The appeal is kept pending and the record is remitted to the learned Munsif to give both parties an opportunity to adduce fresh evidence on (i) reasonable accommodation elsewhere in Calcutta and (ii) whether the defendant sublet part of the premises in 1974 to Satyendra Kumar Roy; the Munsif is to send the report back expeditiously.

Broader Legal Implications

The opinion does not purport to lay down a novel legal rule beyond applying and synthesizing existing authorities: it follows established principles that courts may, in appropriate cases, take into account events occurring after institution of a suit and allow amendment where the nature of the suit is not changed and where doing so avoids multiplicity of proceedings and secures justice. The decision's direct effect is procedural in the present litigation; it permits an amendment and remits the matter for evidence rather than deciding the alleged subletting on the merits. The opinion does not state that it is creating a new precedent beyond applying the cited authorities.

Order: Application allowed.

Show full summary ...

    Pronati Mitra v. Sachindra Nath Chatterjee Opposite Party.

    1. This appeal is directed against the judgment and decree dated 30th January, 1968 passed by Sri P.K Banerjee, Additional District Judge, 7th Court at Alipore in Title Appeal No. 1000 of 1967 affirming those dated 4th May, 1967 passed by Sri R.K Ghatak, Munsif, 2nd Court at Sealdah in Title Suit No. 483 of 1963.

    2. The plaintiff filed the suit on the ground that she requires the suit premises for her own personal use and occupation. The defendant contested the suit.

    3. The learned Munsif found that the plaintiff failed to prove that she requires the said premises for her own use and occupation. In that view of his finding the suit was dismissed. The plaintiff preferred an appeal before the learned Additional District Judge and the learned Additional District Judge dismissed the appeal. Being aggrieved, the present appeal has been filed.

    4. During the pendency of this appeal on September 20, 1976 an application was filed for amendment of the plaint which became necessary in view of the decision of B. Banerjee v. Anita Pan (Smt), reported in (1975) 1 SCC 166 : AIR 1975 SC 1146. The application was allowed and paragraph 6-A was incorporated in the plaint. Additional issues were also framed. Another application was filed on 9th of August, 1977 for further amendment of the plaint for the purpose of taking into consideration some subsequent events which happened during the pendency of the second appeal. This application is very much opposed by the respondent. In this application it is stated that in the month of June, 1976 the petitioner has come to know that in the year 1974 during the pendency of the second appeal the opposite party has sublet a portion of the suit premises to one Satyendra Kumar Roy, who is running a business there named and styled as “M/s. Innervias View X-Ray and Electro Therapy” and has taken out a trade licence from the Calcutta Corporation for running the said business in the suit premises. The petitioner states that the said subletting was done without the knowledge and prior consent of the petitioner and as such the opposite party has disentitled himself to the protection of the West Bengal Premises Tenancy Act and rendered himself liable to ejectment. It has further been stated that in the interest of justice and in order to shorten the litigation and avoid multiplicity of proceedings it is necessary for the petitioner that the plaint should be amended by inserting two new paragraphs therein after paragraph No. 6-A. Those new paragraphs have been numbered as 7-A and 7-B in the petition. Previously a similar application was filed and while disposing of the application on July 7, 1977 it was stated that the other application will be considered at the time of hearing of the appeal. The said application was opposed by the respondent and an affidavit of the respondent dated 2nd February, 1977 and an affidavit of S.K Roy dated 1st of March, 1977 were filed: In those affidavits the story of subletting has been completely denied. It is not now necessary for me to decide whether in fact the respondent sublet the premises as alleged by the appellant. I am only required to consider whether such an application for taking into consideration the subsequent events of subletting can be allowed at this stage.

    5. Mr. Promotha Nath Mitter, learned Advocate appearing on behalf of the appellant, in support of his contention first refers to a decision reported in AIR 1973 Cal 448 (Tinkari Das… v. Jamuna Bala Dasi….). In this case it was a suit for recovery of possession of leased property on eviction of tenant on the ground of forfeiture of property. It was held that the Court could allow the amendment to add the additional ground of determination of lease by efflux of time. It was further held that for shortening the litigation and for ends of justice the Court is entitled to take into consideration the subsequent events even if there was a change in the ground of eviction where the nature and character of suit, which was for recovery of possession of the suit property on eviction of the defendant was not in any way affected.

    6. Mr. Ranjit Kumar Banerjee, learned Advocate appearing on behalf of the respondent, submits that the facts of this case are completely different. Here forfeiture of property by efflux of time could not be disputed by the defendant and as such the Court could take notice of such an event. But the case will be different where the alleged subsequent event is very much challenged by the other side.

    7. The next case relied on by Mr. Mitter has been reported in (1976) 3 Cal HC (N) 674 : (AIR 1977 Cal 108) (Ayesha Khatoon v. Durga Sahaya). It is a Bench decision and their Lordships laid down the same principle as in the case referred to above. Mr. Mitter very much relies on a decision reported in (1977) 4 Dr. R.D Anklesaria v. Mrs. Kamala Roy). This was a suit for ejectment under West Bengal Premises Tenancy Act on the ground of building and rebuilding. During the pendency of the suit the plaintiff made an application for amendment of the plaint by inserting other grounds, e. g. sub-letting, using the premises for a purpose other than residential for which it was let out. The application for amendment was allowed. The defendant came up to this Court challenging the order on the ground that the proposed amendments would change the cause of action and nature of the suit and the subsequent events could not be permitted to be introduced, if such introduction results in changing the nature and character of the suit or the cause of action on which the suit is based. Their Lordships after considering several decisions held that “under the West Bengal Premises Tenancy Act a tenant whose contractual tenancy had been determined by a valid notice to quit but against whom no decree for eviction has been passed remains a tenant under the Premises Tenancy Act. Consequently a statuory tenant who continues to be the tenant under the Premises Tenancy Act because of special definition of the tenant is liable to be evicted under the said Act if he commits any illegal act of subletting and/or wrongful user of the suit premises within the meaning of Section 13 of the Premises Tenancy Act. In this context, a tenant governed by the Transfer of Property Act simpliciter and a tenant governed by the West Bengal Premises Tenancy Act stand on altogether different footing. In the former case, after the determination of the contractual tenancy the tenant ceases to be a tenant any further; as such raising of unauthorised structure by such person cannot attract the provisions of Section 108 of the Transfer of Property Act and no suit for eviction of a tenant for such wrongful act can be filed. But in the case of a statutory tenant under the West Bengal Premises Act, an act of sub-letting attracts the provisions of Section 13 of the Premises Tenancy Act and such tenant is liable to be evicted on the ground of subletting even if such sub-letting is made after the determination of contractual tenancy. Accordingly, the nature and character of the suit namely the suit for eviction of a tenant is not changed in the case of a tenant governed by the Premises Tenancy Act”. It was further held that “In the circumstances of the case, the Court cannot ignore the subsequent events on the statutory principle of avoiding multiplicity of legal proceedings, shortening the course of litigation and achieving the ends of justice.”

    8. Mr. Mitter next refers to a decision reported in (1974) 1 SCC 675 : AIR 1974 SC 1178 (Sikharchand Jain v. Digamber Jain Praband Karini Sabha). It was held that “Ordinarily, a suit is tried in all its stages on the cause of action as it existed on the date of its institution. But it is open to a Court (including a court of appeal) to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances to do complete justice between the parties and to shorten litigation.”

    9. Mr. Mitter also refers to a decision reported in (1975) 1 SCC 770 : AIR 1975 SC 1409 (Pasupu-leti Venkateswarlu v. The Motor and General Traders). It was held that “Where during the pendency of a proceeding under Rent Control Legislation by the landlord for permission to evict the tenants, a subsequent event in the facts of the case takes place which has a material bearing on the landlord's right to evict, the approach of the High Court in revision, in taking cognizance of the new development cannot be said to be wrong or illegal”. Mr. Mitter submits that if this amendment be allowed then it will not in any way change the cause of action. The suit was brought for eviction by determining the tenancy after serving notice according to law. It was not necessary for the landlord to state the grounds of eviction in the notice for ejectment. The cause of action for the suit will remain unchanged and that being so, in order to shorten litigation and for doing justice the amendment must be allowed.

    10. Mr. Banerjee contends that a subsequent event which is admitted can be taken into consideration by the court, but a fact which is very much challenged should not be allowed to be added by the plaintiff. The proposed amendment will change the nature of the suit completely. The suit is one for reasonable requirement, that having failed the plaintiff now cannot add a ground in the plaint which is said to have taken long after the institution of the suit and long after the decrees of the courts below were passed. Mr. Banerjee in support of his contention refers to several decisions. He first cites to a decision reported in 20 Cal WN 1099: (AIR 1917 Nuri Mian…Defendant, Petitioner, v. Ambica Singh…Plaintiff, Opposite Party, .). It was held: “The decree in a suit should ordinarily conform to the rights of the parties as they stood at the date of its institution. But there are cases when it is incumbent upon a Court of Justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made. This principle will be applied where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate or that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties”. The same principle has been laid down in (1907) 6 Cal LJ 74 (Ram Ratan Sahu v. Mohant Sahu), 20 Cal LJ 107: (AIR 1915 Cal 103) (Rai Charan Mandal v. Biswa Nath Mandal) and 34 Cal WN 634: (AIR 1931 Cal 45) (Sm. Balak Bala Dassi v. Jadu Nath Das) cited by Mr. Banerjee. I do not see how the principles of law enunciated in the above cases support Mr. Banerjee's contention.

    11. Mr. Banerjee next relies on a decision reported in AIR 1969 SC 101 (S. Rajagopal v. C.M Armugam). In this case before the Supreme Court request was put forward during the hearing of the appeal to direct the production of a batismal register. Their Lordships were of opinion that there was no justification under O. 41, R. 27 of the Code for summoning it at this stage, particularly because even if that register is brought, a lot of oral evidence would have to be recorded in order to have the register properly proved and to give an opportunity to the party, against whom inferences follow from it, to meet those inferences. In the circumstances, the prayer was refused. Mr. Banerjee submits that in this case also if the amendment be allowed then the case will have to be heard afresh and new evidence will have to be adduced. If the plaintiff's allegation is correct that the defendant has sublet without the consent of the plaintiff then the plaintiff can very well bring a fresh suit for ejectment. Mr. Mitter joins issue and contends that there is absolutely no reason why the plaintiff will be compelled to bring another suit if the matter can be decided in this suit and that would avoid multiplicity of proceedings, shorten litigation and would meet ends of justice.

    12. Mr. Banerjee next relies on a decision reported in ILR (1969) 1 Cal 582 (S.B Sen v. Tejendra Chandra Bhow-mik). In this case it was held: “Sub-letting need not subsist till the date of institution of the suit, it is sufficient if the fact of sub-letting without the written consent of the landlord is proved”. It was further held: “Sub-letting was found concurrently by the Courts below which cannot be interfered with in a second appeal”. Mr. Banerjee submits that the question whether the plaintiff reasonably requires the premises or not has been concurrently found by the courts below against the plaintiff and that being so, that question cannot be made in this appeal. As has already been stated at the present moment I am not hearing the appeal on merits. I am now dealing with the application filed by the plaintiff for further amendment of the plaint seeking to add a ground of subletting. Mr. Banerjee also relies on a Special Bench decision reported in AIR 1964 Cal 1 (Surya Properties Private Ltd. v. Bimalendu Nath Sarkar). It has been held in this case that “It is not necessary to mention in a notice under S. 13(6) the ground or grounds of ejectment for which a suit is to be instituted for recovery of possession. There is, however, nothing to prevent the landlord from setting out such grounds in the notice. The notice, however, will not be a notice of such grounds”. This case without helping Mr. Banerjee rather helps Mr. Mitter. A tenancy is determined by serving a notice under S. 13(6) read with Section 106 of the Transfer of Property Act and as soon as a tenancy is determined, the cause of action for the suit arises. It has been clearly laid down that it is not necessary to state the grounds of ejectment in the notice.

    13. In such circumstances, if any ground is added subsequently that cannot change the cause of action or the nature of the suit. The suit remains one for eviction as it was at the date of commencement of the suit. Taking into consideration the principles of law enunciated in the decisions referred to above I am of opinion that in the facts and circumstances of the present case the Court is not prevented even in a second appeal to take into consideration the fact of sub-letting which, according to the plaintiff, has taken place during the pendency of the appeal. I, therefore, allow the application filed by the appellant on 9-8-77.

    14. The paragraphs marked as 7-A and 7-B in paragraph 7 of the petition be added in the plaint as paragraphs 6-B and 6-C. The plaintiff will have to prove the fact of sub-letting by adducing evidence. The defendant may also adduce evidence to disprove the fact. The plaintiff is also required to adduce evidence for the amendment which has already been allowed on her application dated 20th September, 1976. For the purpose of adducing fresh evidence I think that the case should be sent back to the learned Munsif. The appeal is kept pending. Let the records go down to the learned Munsif who will give the plaintiff an opportunity to adduce fresh evidence on the question whether the plaintiff has any other reasonably suitable accommodation in Calcutta besides the suit premises and whether the defendant in 1974 has sublet a portion of the suit premises to one Satyendra Kumar Roy. The defendant will also be permitted to challenge these facts by adducing evidence. After recording such evidence as may be adduced by the parties the learned Munsif will send the same to this Court. As the matter is pending for a long time, the learned Munsif is requested to send the report as early as possible.

    15. Application allowed.

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    Comments

    Pronati Mitra v. Sachindra Nath Chatterjee Opposite Party.
    (Sep 7, 1977)