A.M Bhattacharjee, J.:—A landlord, himself residing in a rented premises, has filed two suits against two of his tenants for the recovery of possession of the two premises occupied by them, each tenant occupying one floor of the three-storied premises owned by the landlord. The case of the landlord is that he reasonably requires both the premises for his own occupation and the occupation of the members of his household and that the rented premises occupied by him is both insufficient and unsuitable for his requirement. Both the Courts below having concurrently held in favour of the landlord and having decreed both the suits on such finding, the tenants-defendants have preferred these two second appeals, which have been heard together and are now being disposed of by this judgment.

2. As we have pointed out in some earlier cases, including that of A.K Mukherji v. Prodip Ranjan Sarbodhikary (1987-2 Calcutta Law Journal 229 at 234), while the purpose of requirement by the landlord may involve a question of law, the extent of his requirement would, by and large, be a question of fact. Under s. 13(1)(ff) of the West Bengal Premises Tenancy Act, if a landlord is the owner of the tenanted premises, his reasonable requirement to furnish a ground of ejectment must be a requirement “for his own occupation”. Whether the avowed requirement of the land lord would, in law, amount to a requirement “for his own occupation” may involve a question of law. But once such a requirement is, in law, held to be a requirement “for his own occupation” the extent of accommodation reasonably required to satisfy such requirement would be a question of fact.

3. As a result of the decision of the two Judge Bench of the Supreme Court in Mattulal v. Radhelal (AIR 1974 SC 1956 (at 1601-1602), an impression has gained ground that in view of the four-Judge. Bench decision of the Supreme Court in Sarvate T.B v. Nemichand (1966 Madhya Pradesh Law Journal 26), it must be taken to be settled law that finding as to the Page: 183landlord's reasonable requirement of the tenanted premises is a finding of fact and that the decision of the three-Judge Bench of the Supreme Court in Kamla Soni v. Rup Lal Mehra (1970 Rent Control Journal 34) to the effect that such a finding is a mixed question of law and fact, is no longer good law being per incuriam of Sarvate T.B (supra) and also on principle. The impression, in our view, is erroneous. It is true that there are some observations in Sarvate T.B (supra) as well as in Mattulal (supra), which if considered divorced from the context, may lend some assurance to such an impression. But it should be noted that even while following Sarvate T.B (supra) and holding Kamla Soni (supra) not to have laid down good law in view of the larger Bench decision in Sarvate T.B (supra), it has nevertheless been laid down in Mattulal (supra), at 1601 that a finding as to the landlord's reasonable requirement of the tenanted premises would be assailable in second appeal if the same has been arrived at on an erroneous application of law, thereby clearly implying that in a given case a finding as to reasonable requirement may very well involve a question of law Mattulal (supra) has clearly laid down that finding as to the reasonable requirement can be assailed in second appeal only if there is an error of law in arriving at such finding or if the finding is based on no evidence at all or is such that no reasonable person can arrive at it on the materials on record. As would be shown hereafter, these two appeals would fail by these tests.

4. In the cases at hand, the requirement put forward by the landlord is for the purpose of occupation for the residence of himself and his wife, of his daughter and son-in law and two of their children and also for carrying on medical profession by the landlord himself and his son in-law. It has been found by both the Courts below that the daughter is the only child of the plaintiff landlord end his wife and that the said daughter and her husband along with their two children are residing with the plaintiff and his wife as members of their household at least since 1967. It has also been found that the son-in-law, who was in service, has qualified himself as a medical practioner and assists the plaintiff in his medical prefessior. It has been further found by the Courts below that the plaintiff and his wife are quite old and require to be looked after and to be taken care of by their daughter who is their only child and her husband and that the plaintiff also requires the assistance of his son-in law in his profession. Under these facts and circumstances, it has been held by the first appellate Court, relying on a Division Bench decision of this Court in Parimalbala v. S.K Bhattacharjee (88 Calcutta Weekly Notes 510), that the daughter and her husband and their children are the members of the household of the plaintiff.

5. We do not think that whether a married daughter and her husband Page: 184and their children can be members of the household of her father is a question of law and can have a strait-jacket answer. It may be, as pointed out by the Supreme Court in Sawan Ram v. Kalawanti (AIR 1967 SC 1961 at 1765), though in a different context, that “after a female is married, she belongs to the family of her husband”. But here we are not concerned with the connotation of the expression “family” stricto sensu, that not being the term used in s. 13(1)(ff) of the West Bengal Premises Tenancy Act and all that we are concerned with is to ascertain as to whether, in a given context, a married daughter and her husband can be members of the household of the father and we have no hesitation in returning an affirmative answer. While a son and his wife may not always be the members of the household of the son's father, a daughter and her husband, in a given case, may very well be such members of the household of the daughter's father. Even as to the expression “family”, we would like to note that the Supreme Court in S.N Sudalimuthu v. Palanivandayan (AIR 1966 SC 469 at 470) has relied on the meaning given in Webster's New World Dictionary to the word “family” as “a group of people related by blood or marriage, relatives’ and, therefore, a daughter, even though married, and her husband may very well be members of the family of the former's father and the latter's father-in-low. Be that as it may, if the Courts below have found, as they have, that the plaintiff's daughter and her husband and their children are residing with the plaintiff at least since 1967 and have in fact become members of the plaintiff's household, they have not only arrived at a finding of fact on the evidence on record, involving no question of law. But even that apart, we are also inclined to hold that where, as here, the old landlord and his aged wife have only a married daughter as their only child and require that tenanted premises for the occupation of that daughter and her family so that they may live with them and they may be properly locked after and taken due care of in their old age, such requirement would not, in law, be the requirement of that daughter or her family, but would amount to requirement of the landlord “for his own occupation” within the meaning of s. 13(1)(ff) of the West Bengal Premises Tenancy Act.

6. A landlord obviously can not reasonably require a tenanted premises for his own occupation if he is already in possession of any other reasonably suitable accommodation. That was the law even under clause (f) of s. 13(1), as it stood before the 1969 Amendment; but the present clause (ff), as inserted by the Amendment Act of 1969, has now imposed a statutory obligation on the landlord to plead and to prove that he “is not in possession of any reasonably suitable accommodation” in order to entitle him to recover possession of any tenanted premises on the ground of his requirement for own occupation. The Courts below have taken into consideration the number of rooms and other spaces available in the premises now occupied by the landlord on the basis of the report of the Commissioner and other Page: 185evidence on record and have held that in view of the number of members of the landlord's household and their various requirements, including the professional requirements of the landlord, the accommodation available therein is both insufficient and unsuitable. As to the unsuitability of the accommodation, the Courts below have also taken into consideration the fact that the same is surrounded by open bathing place and open urinal used by all and sundry and a motor garage where repair works and spray printing of motor vehicles are carried on and have held that all these are not only adversely affecting the efficacy of the Homeopathic medicines stored by the landlord for his rather extensive medical practice, but also are making the premises otherwise unsuitable for him, particularly in view of his old age and the position and status enjoyed by him and the members of his family. Whether the existing accommodation now available to the landlord is sufficient and suitable would, by and large, be a question of fact. And since we do not find the finding to be vitiated by any erroneous application of law, nor to be based on no evidence at all, nor to be such as could not be arrived at by any reasonable person, we must hold the finding to be unassailable in second appeal in accordance with the tests formulated by the Supreme Court in Mattulal (supra).

7. As to the extent of accommodation which the landlord may reasonably require, the first appellate court, in agreement with the trial court, has held as hereunder:—

“That brings us to the final question as to how much of the accommodation in New Alipore residence would be necessary. We find from the Commissioner's report and the evidence of P.W 1, P.W 6, D.W 1 and D.W 2 that there are 3 living rooms each on the 3 floors besides privy, bath and balcony etc. It is the positive case of the plaintiff that the ground floor would be required for the chamber of his son in law for storing medicines, 1 room to be used as drawing room and 1 room where the private tutors would come and coach the grand children. The other accommodation available in the Mazzanine floor would be occupied by the driver of the plaintiff, the first floor would be required for the residence of the plaintiff and his wife, one room the hall for the waiting place of the patients, one room as chamber of the plaintiff and another room for his compounder, of the 3 bed-rooms available on the second floor, one would be occupied by the daughter and son-in-law and ore each by the 2 grandchildern. Besides that the kitchen and the dining hall for the family are to be provided on the second floor. This demand has been supported on oath both by the plaintiff p.w 1 and p.w 6.

………………………………………………………………………………………………………..

Thus considering the entire facts and circumstances and the evidence on record I am in agreement with the learned Munsif that the plaintiff actually requires the suit holding including the 2 sets of suit premises”

8. As already stated, the finding as to the extent of accommodation reasonably required by a landlord would be a finding of fact and according to the dictum in Mattulal (supra), such a finding cannot be challenged in second appeal unless there has been an erroneous application of the relevant law or the finding is based on no evidence or is such as no reasonable person could come to it and it is not for the Second Appellate Court to ascertain whether the evidence on record is sufficient and adequate to sustain the findings. Since the findings as to the insufficiency and to the unsuitability of the existing accommodation of the landlord and as to the requirement of the landlord for both the tenanted premises, do not suffer from any of the infirmities as aforesaid, we must leave them undisturbed and must accordingly hold that the findings of the courts below to the effect that both the suit-premises are reasonably required by the landlord for his own occupation are beyond challenge.

9. While both the suits have been decreed in favour of the landlord plaintiff on the ground of reasonable requirement, the suit being No. T.S 418 of 1977 against the tenant-appellant D.N Boobna, giving rise to the second appeal no. 163 of 1985, has also been decreed by both the courts below on the ground of default in payment of rent. On an application filed under s. 17(2) of the West Bengal Premises Tenancy Act, the tenant appellant was directed to deposit the arrears of rent together with interest in 13 monthly instalments and while it is not disputed that all the 12 instalments were duly deposited in accordance with the direction of the court, there was however, some delay in depositing the 13th instalment. The matter, however, remained unnoticed until it was urged on behalf of the plaintiff-landlord during the course of the argument, when an application was filed on behalf of the tenant-appellant under s. 151 of the Code of Civil Procedure for acceptance of that delayed deposit on condonation of delay. The application was rejected by the trial court and such rejection has also been approved by the first appellate court which has held that such an application “is neither maintainable in law nor should it be allowed in the facts and circumstances of the present case” It appears that the first appellate Court has treated the Division Bench decision of this Court in Bhuban Mohan v. Asha (1978-1 Calcutta Law Journal 41) as an authority for the proposition that, in law, no such application can ever be entertained at the stage of argument. It is true that there are some observations in that decision (in paragraph 5), which, if considered out of the context, might appear to support such a proposition. As would appear from that judgment (paragraph 5) the application for condonation in that case “was made after the argument was concluded in the suit”, while in this case the application was made during the course of the argument and before the hearing was a concluded. That apart, as it would further appear from that judgment (paragraph 6), Page: 187as to the contention “that the court has always the inherent power in appropriate circumstance” to condone the delay in proceeding under s. 17 of the West Bengal Premises Tenancy Act, “if the defaulting party on the facts of his case” can “establish that there has been no negligence or inaction on his part”, the Division Bench observed that “there can not be any dispute about the proposition in law”, but the Division Bench, however, held that “on the facts of this case”, condonation could not be allowed, as “the application for condonation of delay only shows that there are laches on the part of the defendant” and “as no sufficient ground has been made out”. But the further observations of the Division Bench to the effect that “in not making the deposit in time, the penal consequences of s. 17(3) must be fastened on the defendant and the defence against the delivery of possession must be struck out”, are no longer good law in view of a series of decisions of the Supreme Court to the contrary, the latest being in B.P Khemka v. Birendra Kumar (AIR 1987 SC 1010) where it has been clearly ruled that, however mandatory the provisions of s. 17(3) may sound to be because of the word “shall” used therein, the Court is not obliged to strike out defence because of non compliance with the provisions of sub-ss. (1), (2) or (2A) of s. 17, but has only a discretion to do or not to do so and, therefore, has the further discretion to condone the delay and extend the time for payment or deposit. The first appellate Court, therefore, was wrong, in holding that the application for condonation was not maintainable in law. It is true that after observing that “applying the ratio of the decision (i.e Bhuban Mohan v. Asha (supra) to the present case I am also of the view that the application for condonation of delay is neither maintainable in law”, the first appellate court has added further that “nor should it be allowed in the facts and circumstances of the present case” and the latter finding being a finding on facts would have otherwise been unassailable in second appeal. But the court has neither discussed any of the relevant “facts and circumstances” and has spelt out no reason for arriving at such a finding on facts and the judgment of the first appellate court leaves us in no doubt that it's decision that the application was not to be allowed was solely based on the decision in Bhuban Mohan (supra), which was regarded by the first appellate court as a blanket authority for the proposition that no such application, in law, can be allowed at the stage of argument. As already noted, neither Bhuban Mohan (supra) appears to have laid down any such straight jacket proposition, nor such a view can be sustained in view of the decisions of the Court including that in B.P Khemka (supra). The finding of the Appellate Court having thus been vitiated by an error of law, we would have considered the question of over-turning that finding whether by remanding the relevant question for consideration afresh in accordance with law or otherwise. But since we are affirming the impugned decree of ejectment on the Page: 188ground of reasonable requirement, we have decided not to take such a course as the same would have been an exercise in futility.

10. Though the trial court held to the contrary, the first appellate court has also held the tenant appellant Boobna to have violated the provisions of clause (o) of s. 108 of the Transfer of Property Act and thus to be liable to be evicted under s. 13(1)(b) of the West Bengal Premises Tenancy Act on the ground that the tenant has fixed air conditioners in the premises. Under clause (o) of s. 108 of the Transfer of Property Act, a tenant has been directed to use the tenanted property as a person of ordinary prudence would use it if it were his own and the tenant has been commanded not to pull-down or damage the building belonging to the landlord or to commit any other act which is destructive or permanently injurious thereto and under clause (p), the tenant has been mandated not to erect on the property any permanent structure, except for agricultural purposes. As pointed out by one of us in the Division Bench decision of this Court in Dhanapati v. Gita (1986-2 Calcutta High Court Notes 292 at 296), it is not the law that a tenant can not in any event construct any structure or make any addition to or alteration of the tenanted premises without the consent of the landlord. A combined reading of these two clauses would rather indicate that while the tenant can not put up any construction by way of addition or alteration, which is a permanent structure or which is destructive or permanently injurious to the tenanted premises, he can, within the limits of clauses (o) and (p), add to the premises and make alterations thereto to suit his needs. That is precisely what was also pointed out by Milter, J. in the Special Bench decision of this Court in Surya Properties (AIR 1964 Calcutta 1 at 27) in his separate but concurring judgment. According to the trial Judge, “indications are not available that any actual damage has taken place”. The first appellate court, has, however, thought that when the tenant, after the termination of the tenancy, would remove the airconditioning machines fitted to the windows, the windows would remain “blank and open” and “that would obviously damage the property within the meaning of clause (o) s. 108 of the Transfer of Property Act”. As to the argument on behalf of the tenant that he would, on the termination of the tenancy, restore the windows in as good condition as they were at the commencement of the tenancy, the first appellate court repelled the same on the ground that the tenant had not done so after the receipt of the notice of suit or even after the filing of the suit. If, as held by the trial Judge, there is no indication of any damage having been caused to the tenanted premises, then the apprehesion of the first appellate court that the tenant would not restore or would not be able to restore the premises to its original condition at the termination of the tenancy, would appear to be rather conjectural. If improvements are made by the tenant on the property, the tenant is Page: 189entitled to remove the improvement and if after such removal is made, the tenanted premises can be and is restored to the original condition, the landlord can not have any cause of action. The finding of the first appellate court on this score appears to be based on no evidence and must be overturned.

11. We would accordingly affirm the decrees for eviction in both the suits, giving rise to these two appeals, only on the ground of reasonable requirement by the landlord for his own occupation and would accordingly dismiss both the appeals with costs.

12. As already stated, we have so long applied the principles of s. 100 of the Code of Civil Procedure as it stood before the Amendment Act of 1976, as reiterated by the Supreme Court in Mattulal (supra), AIR 1974 SC 1596 at 1601 at 1602), the principles being that a finding of fact can still be assailed in second appeal if the same—(a) was arrived at on an erroneous application of law, or (b) was based on no evidence at all, or (c) was such as could not be arrived at by any reasonable person. That s. 100 now stands substituted by the present section introduced by the 1976 Amendment, whereunder a second appeal would lie only “if the High Court is satisfied that the case involves a substantial question of law”. The Law Commission, which recommended this substitution, made it clear in its Report (54th Report on the Code of Civil Procedure, 1908) that it did so with the obvious and avowed purpose of circumscribing the ambit and to narrow the scope of second appeal so that a second appeal may not become a third trial on facts and “yet another dice in the gamble”. The Law Commission was convinced that “the wide language of s. 100 (as it stood then) and the somewhat liberal interpretation placed judicially on it, have practically resulted in giving a go-bye to the basic principle that on questions of fact, decisions of the courts of first instance should be final, subject to one appeal” and that as “a wide scope is not contemplated for the jurisdiction of the High Court” in second appeal, further “limitations on the right of second appeal were desirable”.

13. A rather fastidious view was once prevalent that Report of Law Commission could not be used in interpretating even an enactment enacted or amended on the basis of the recommendation in its Report. This view is now being steadily discarded end as would appear from the decision of the Supreme Court in Udayan Chinuvai (AIR 1977 SC 1219), the Supreme Court referred to the relevant observations in the Report of the Law Commission in construing s. 12 of the Limitation Act, 1963 which was recast and recommended on the basis of that Report.

14. Under Article 133(1) of the Constitution, as it stood before its Amendment by the Constitution (30th) Amendment Act of 1972, where the judgment, decree or final order appealed from affirmed the decision of Page: 190the court immediately below (in any case other than a case covered by sub-clause (o) thereof), an appeal could lie to the Supreme Court if the High Court certified that the appeal involved some “substantial question of law”. Construing that expression, a five Judge Constitution Bench of the Supreme Court observed in Chunilal V. Mehta v. Century Spinning & Manufacturing Co. (AIR 1962 SC 1314 at 1318, paragraphs 5 and 6) as hereunder:—

“The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well-settled and there is a mere question of applying those principles or that the plea raised is palpably absurd, the question would not be a substantial question of law”.

15. In A.K Mukherji v. Prodip Raman Sarbadhikary (1987-2 Calcutta Law Journal 229 at 232-233), we have pointed out that if these tests, as laid down in Chunilal V. Mehta (supra) for determining whether a case involves a “substantial question of law”, are also to apply to s. 100 of the Code of Civil Procedure for ascertaining as to whether there is a substantial question of law to sustain a second appeal, then a second appeal may no longer be available solely on the ground that (a) the finding has been arrived at on no evidence, or (b) the finding is such as could not be arrived at by any reasonable person on the materials on record, or that (o) the finding has been arrived at on an erroneous application of law which is otherwise well-settled. In A.K Mukherji (supra), however, we have not noted that she question as to whether these tests laid down by the Supreme Court in Chunilal V. Mehta (supra) are also to be applied to s. 100 of the Code of Civil Procedure, has been considered by a later three-judge Bench of the Supreme Court in Mahindra & Mahindra v. Union of India (AIR 1979 SC 798 at 812) and it has been held that whether there is a substantial question of law within the meaning of s. 100 of the Code, as it now stands, is to be determined in accordance with the tests laid down in Chunilal V. Mehta (supra). To quote from Mahindra & Mahindra (supra, at 812), “what should be the tests for determining whether a question of law raised in an appeal is substantial has been laid down by this Court in Sri Chunilal V. Mehta v. Union of India (AIR 1962 SC 1314)”.

16. It, however, appears that in an earlier three-Judge Bench decision of the Supreme Court in Hoogly Jute Mills v. Their Employees (AIR 1957 SC 376 at 377), rendered much before Chunilal V. Mehta (supra), a somewhat Page: 191different note was struck and a rather liberal test was applied. There the Supreme Court was considering the provisions of s. 7 of the Industrial Disputes (Appellate Tribunal) Act, 1950 (now repealed) whereunder also an appeal was to lie to the Appellate Tribunal only on a “substantial question of law”. But the Supreme Court appears to have observed that even though an appeal was to lie only on a “substantial question of law”, yet the Appellate Tribunal could set aside the finding of fact reached by the Industrial Tribunal if there was no evidence at all on which such finding could be based or the finding reached by the Industrial Tribunal was perverse or was such as no reasonable body of men could have arrived at it.

17. Which tests to go or to be governed by? We are inclined to think that once a three Judge Bench decision of the Supreme Court in Mahindra & Mahindra (supra) has applied the tests laid down in Chunilal V. Mehta (supra) in determining the question as to whether there is a substantial question within the meaning of s. 100 of the Code of Civil Procedure, we would have to go and to be governed by those tests in all appeals governed by s. 100 of the Code and not by the tests laid down in the earlier three Judge Bench decision in Hoogly Jute Mills (supra). The first and the most obvious reason is that observations in Hoogly Jute Mills (supra) were made in the context of a different statute, while the observations in Mahindra & Mahindra (supra) have been made directly in the context of s. 100 of the Code of Civil Procedure, as it now stands. And the second reason is that if a larger Bench, as in Chunilal V. Mehta (supra) and also a smaller Bench, as in Hoogly Jute Mills (supra) have construed the very same expression in different ways, we would obviously have to be governed by the larger Bench construction. And more so here, where another later Bench of a jurisdiction co-ordinate with the earlier smaller Bench has directly adopted the larger Bench construction in construing the very provisions of s. 100 of the Code of Civil Procedure, with which we are concerned here. And there is possibly no scope for doubt that if we are to construe s. 100 of the Code, as it now stands, in accordance with the tests laid down in Chunilal V. Mehta (supra), as extracted hereinabove, no second appeal would lie solely on the ground that the finding has been arrived at on no evidence, or is such as could not be arrived at on the evidence on record by any reasonable person, or even on the ground of the finding having been arrived at on an erroneous application of law which is otherwise well settled. For if a court arrives at a finding which is based on “no evidence”, it only, at the best, makes an erroneous application of the law, which is otherwise well settled, namely, that a Court should decide a case only on the evidence on record and should not decide a case on “no evidence”.

18. Learned Counsel for the tenant-appellant have very strongly urged that the relevant observations in Mahindra & Mahindra (supra) in respect Page: 192of s. 100, as it now stands, were clearly obiter as those were not necessary for the disposal of that case. It is true that since the Supreme Court in Mahindra & Mahindra (supra) held (at 811-812) that s. 55 of the Monopolies and Restrictive Trade Practices Act, 1969, was an instance of legislation by incorporation, incorporating s. 100 of the Code of Civil Procedure as it stood on the date of that Act in 1969 and that the appeal under s. 55 of that Act are therefore to be governed by s. 100, as it stood then, it was not necessary for the Supreme Court to decide further that even according to the tests to be applied under s. 100, as it now stands, the appeal was also maintainable. But even then, as would appear from the judgment in Mahindra & Mahindra (supra), (paragraph 9), though the appeal could have been disposed of without any reference to s. 100 as it now stands, the Supreme Court nevertheless referred to that s. 10 considered those provisions in appreciable details and after holding that the tests laid down in Chunilal V. Mehta would apply to that Section, held the appeal to be maintainable also under that new Section according to those tests. A mere judicial declaration, unacompanied by judicial application, may be obiter’. But the Supreme Court in Mahindra & Mahindra (supra) not only made a declaration of law as to the true scope of and the tests applicable to the present s. 100 of the Code of Civil Procedure, it also applied that law so declared in deciding the maintainability of the appeal on an additional ground. Therefore, since the law on the point was nor only declared, but was applied also, the judicial declaration, so accompanied by judicial application, can not be ranked as obiter.

19. But even assuming arguendo that the relevant observations in Mahindra & Mahindra (supra) are obiter, what binds the Court subordinate to the Supreme Court under Article 141 of the Constitution is the “law declared” therein, and “law declared” by the Supreme Court does not cease to be so merely because the declaration does not strictly form part of the ratio decidendi. That is why it has become accepted as a settled law that even obiter dictum in the judgment of the Supreme Court, that is, declaration of law even though unaccompanied by actual application, would bind all the courts under Article 141 of the Constitution.

20. ??? have taken due note of a rather recent decision of the Supreme Court in Budhwanti v. Gulab Chand Prosad (AIR 1987 SC 1484) where a two Judge Bench of the Supreme Court appears to have observed that the High Court in second appeal would be justified in setting aside the finding, even though factual in character, if the same is based on assumptions and no evidence. But we are, however, inclined to think that this observation should be read in the contest of further observation in the judgment (vide, the last sentence in paragraph 11) which would indicate that the two Judge Bench was inclined to hold that the conclusion of facts reached therein were arrived at on erroneous application of legal tests applicable thereto as would Page: 193appear from its observation that “it can not be predicated as to how far the Appellate Judge's conclusion was influenced by the mistaken tests applied by him to determine the issue”. It is true that in Budhwanti (supra) the second appeal in the Patna High Court having been filed against the Appellate Decree no. 51 of 1982, was obviously to be governed by the provisions of s. 100 of the Code of Civil Procedure, as it now stands after the 1976 Amendment. But the decision has nowhere expressly referred to s. 100 as amended and has in no way decided the scope of that Section as a result of the amendment. The classical dictum of Lord Halsbury in Quinn v. Leatham (1901 AC 495), quoted with approval by the Supreme Court in State of Orissa v. Sudhansu Sehkar Misra (AIR 1968 SC 647 at 657-662), is that a case is an authority only for what it actually decides and not “for a proposition that may seem to follow logically from it”. Logically it may follow that Mudhwanti (supra) having been decided at a time when s. 100 as amended in the governing law, is an authority under that Section. But expressly it is not. But even if it is to be taken as such an authority and to have laid down a proposition contrary to or inconsistent with the proposition laid down in the larger Bench decision in Mahindra & Mahindra (suara), following the yet larger Bench decision in Chunilal V. Mehta (supra), its authority would stand outweighed by those larger Bench decisions. We would, therefore, hold that these two second appeals would also fall as they involve no “substantial question of law” within the meaning of s. 100, as amended, in view of the decisions of the Supreme Court in Mahindra & Mahindra (supra), following Chunilal V. Mehta (supra).

21. As we have pointed out in A.K Mukherji (supra), and also in some other cases, and as also has been pointed out by the Law Commission in its Report (supra, page 73) it may be that sitting in second appeal, we may feel that justice has not been done and that there has been failure of justice in a particular case in determining issues of facts and that a decree following upon a grossly erroneous appreciation of evidence has caused serious injustice. But, however laudable our anxiety to do justice may be, sitting in a Second Appellate Court we would have to fold our hands if the case does not involve a “substantial question of law” and if there is none, then, as pointed out by the Supreme Court in Madamanchi Ramappa v. Muthaluru Bojjappa (AIR 1963 SC 1633 at 1637), consideration of justice and fair play and equity, however important they otherwise may be, must yield to the clear and express provisions of s. 160 of the Code of Civil Procedure. In our endeavour to redress injustice by interfering with questions of fact, we can not in any way violate the express provisions of s. 100 of the Code. As pointed out by the Supreme Court in Madamanchi Ramappa (supra), quoting with approval Deity Paltabhiramaswamy (AIR 1959 SC 57 at 59), sitting in a Second Appellate Court, our anxiety to redress injustice without proper Page: 194advertence to the limitations imposed by s. 100 of the Code of Civil Procedure, might introduce a “gambling element in litigation and confusion in the mind of the litigant public”, “an element of disconcerting unpredictability which is usually associated with gambling”, and “that is a reproach which judicial process must consistently and scrupulously endeavour to avoid”.

22. In the result, we would dismiss both the second appeals with costs, affirm the decrees under appeal, but would allow the tenants time to vacate the tenanted premises till 31st March, 1988, if they undertake in writing to do so within a month from this date.

Ajit Kumar Nayak, J.:—I agree.

Both the appeals dismissed.