Prova Sen v. Jagadish Chakraborty — 1980 DIGILAW 364 (CAL)

JUDGMENT : The judgment of the court was as follows :- This appeal is form the judgment and decree passed by the Additional District Judge, 7th Court at Alipore, reversing those of the learned Munsif, 2nd Court at Alipore. 2. The plaintiffs who are the respondents in the present appeal brought against the defendant-appellant a suit for eviction in respect of the suit premises, being the ground floor of premises No. 50B, Hazra Road, P.S. Ballygunge, Calcutta. The case of the plaintiffs as disclosed in the plaint is as follows :- They are the owners of the suit premises and they reside at the second floor of the same building where the suit premises are situate. The rest of the premises was let out to different tenants. The defendant is a monthly tenant under them in respect of the ground floor flat at a rental of Rs. 145/- per month payable according to English Calendar month. The plaintiff no.1 who is a practicing Doctor and has his Chamber at 25A, Kali Temple Road, Calcutta intends to set up a Chamber at the suit premises for the purpose of treating patients as the accommodation available in his said Chamber at 25 A, Kali Temple Road is wholly inadequate. The plaintiff No. 1 is a Specialist in skin diseases veneral diseases and leprosy. For the purpose of his chamber the plaintiff No. 1 required one room as a sitting room for patients, one room for surgery and one room for examination of patients and for storing instrument required for purposes of examination of the patients. The diseases referred to above are contagious and infections. The patients attending the Chamber would accordingly require a bath room. In the suit premises there are 3 rooms with kitchen, bath and privy. A notice terminating her tenancy was duly served on the defendant. The defendant failed to vacate the suit premises as required by the notice and the plaintiffs had to institute the present suit. 3. The defence case is as follows :- The truth of the material allegations in the plaint was denied. Further it is specifically stated that the suit was bad for defect of parties as the premises belonged to one Smt. Lilabati Chakraborty, since deceased who was the mother of the plaintiff and who left on her death two sons and 3 daughters on all of whom the property devolved. Further it is specifically stated that the suit was bad for defect of parties as the premises belonged to one Smt. Lilabati Chakraborty, since deceased who was the mother of the plaintiff and who left on her death two sons and 3 daughters on all of whom the property devolved. As the daughters were not made parties the suit was bad for defect of parties, under the Medical Rules and the Municipal Act the suit premises cannot be used for treatment of leprosy and other contagious diseases as they were situate in a residential area. The suit was accordingly liable to be dismissed. 4. The learned Munsif who initially heard the suit found that as the plaintiffs failed to show that they were the absolute owners of the suit property, the suit was not maintainable. The learned Munsif while considering the question of reasonable requirement of the plaintiff No.1 held that as proper segregation was not possible in a residential area, the plaintiff No.1 cannot be lowed to start a chamber in residential area for the treatment of such infectious and contagious diseases as aforesaid. In the circumstances aforesaid the learned Munsif dismissed the suit. 5. On being aggrieved by the decision of the learned Munsif the plaintiffs preferred an appeal. The learned judge who herd the appeal allowed the same, set aside the judgment and decree appealed form and decreed the suit for eviction. On the basis of the grant of probate (Ext. 2) the learned judge found that one Jnanesh Chandra Chakraborty, the testator appointed said Lilabati and the plaintiff No. 1 as Executors, that Smt. Lilabati Chakraborty and the plaintiff No.1 took out probate of the will and that it appears form the avernments in the will that the property in question which was constructed by Lilibati Chakraborty form the fund of the testator was to vest absolutely in the plaintiffs after the cessation of life interest that Lilibati had under the will. In the circumstances the learned judge found that the learned Munsif was wrong in holding that the plaintiffs had not filed anything to show that they were the absolute owners of the suit premises. The learned judge accordingly found that the plaintiffs only were entitled to the suit premises and the suit was not bad for defect of parties. In the circumstances the learned judge found that the learned Munsif was wrong in holding that the plaintiffs had not filed anything to show that they were the absolute owners of the suit premises. The learned judge accordingly found that the plaintiffs only were entitled to the suit premises and the suit was not bad for defect of parties. The learned Judge further found that the plaintiffs succeeded in proving that they reasonably required the suit premises for their own use and occupation, i.e. for the use of the suit premises as doctor’s chamber by the plaintiff No.1. He also set aside the learned Munsif’s finding that a chamber for the treatment of the diseases referred to above could not be set up in a residential area. In this view of the matter the court of appeal below decreed the suit. 6. On being aggrieved by the decision of the court of appeal below the defendant preferred the present second appeal before this Court. 7. During the pendency of the present appeal there was an application filed on behalf of the plaintiffs/respondents for amendment of the plaint when the present appeal came up for hearing before A.N. Bnerjee J. the learned judge in view of the decision of the Supreme Court in (1) B. Banerjee v. Smt. Anita pan. A.I.R. 1975 SC 1146 allowed the prayer for amendment and also gave the defendant-appellant an opportunity of filing n additional written statement. On the basis of the amendment effected in the plaint and the additional written statement there was a new issue framed by this court to the following effect :- "Are the plaintiffs in possession of any reasonably suitable accommodation for meeting the requirements of the plaintiff No. 1" 8. By his order dated May 4, 1978 A.N. Banerjee, J. set aside the judgments and decrees of both the trial court and the court of appeal below and remanded the case to the trial court for disposal of the suit on merits. It is observed by A.N. Banerjee, J. in the said order dated May 4, 1978 that the trial court will give both the parties an opportunity to adduce evidence on the additional issue framed by this court and the trial court after taking into consideration the additional evidence and the evidence already on record should dispose of the matter finally. It is observed by A.N. Banerjee, J. in the said order dated May 4, 1978 that the trial court will give both the parties an opportunity to adduce evidence on the additional issue framed by this court and the trial court after taking into consideration the additional evidence and the evidence already on record should dispose of the matter finally. The learned Munsif was directed also to dispose of the suit within six months form the date of arrival of the records in his Court. Thereafter, by another order dated May 25, 1978, A.N. Banerjee, J. modified the said order dated May 4, 1978, and passed the following order :- "Let the records be remitted to the trial Court for giving an opportunity to both the parties to adduce additional evidence, if any, on the additional issues framed by this court. The trial court will record its findings on such additional issue as framed and remit the case back to this court after arriving at its finding in the light of the observations made above. The trial court is directed to dispose of the matter within three months form the date of arrival of records in its Court." 9. On the submission made by the learned lawyer appearing for the plaintiff-respondents to the effect that the decision in (2) Balai Chandra Hazra v. Shivdhari Jadav, AIR 1978 SC 1062 does not contemplate remand of the whole case of the trial court, A.N. Banerjee, J. modified the order dated May 4, 1978 and passed the order dated May 25, 1978 referred to above. 10. After the learned Munsif recorded additional evidence and sent back to this Court the records of the case along with his findings it was pointed out by the learned lawyers appearing for the parties that the learned Munsif in recording his findings did not take into consideration the materials which were already there on record before the aforesaid order of remand was made and accordingly it was submitted that the matters should go back to the learned Munsif and he should be required to record his findings after considering not only the additional evidence brought on record after the said remand but also the materials which were already there on record form before such remand. By an order dated October 25, 1979, this court required the learned Munsif to record fresh decision on the issue in question after considering the evidence which was brought on record both before and after the order of remand referred to above. The learned Munsif was directed to dispose of the matter after hearing the learned advocates for the parties within two months form the date of arrival of the records in this Court. 11. After the learned Munsif recorded evidence in terms of the said limited order of remand dated May 25, 1978, he found that the plaintiffs were not in possession of any reasonably suitable accommodation for meeting the requirements of the plaintiff No. 1. This is how the additional raised on fresh pleadings referred to above was disposed of by the learned Munsif. 12. The records were thereafter received back along with the fresh findings of the learned Munsif in terms of the directions given by this Court. 13. Mr. Ranjit Kumar Banerjee, the learned Advocate appearing for the appellant, contended in the first place that the said order of remand dated May 25, 1978, was bad in law and this Court had no jurisdiction to make such an order of remand. Mr. Banerjee asserted that the order of remand dated May 25, 1978, whereby the second appeal was not wholly disposed of and the case was lent back to the trial court for recording additional evidence and the trial court finding thereon and for sending back the case records along with the additional evidence and the findings of the learned Munsif to this Court, deprived the defendant-appellant of her right to prefer an appeal before the first appeal court which would be the final court of facts. By the said order of remand dated May 25, 1978, a valuable right of the defendant-appellant was taken away and that this Court bad no jurisdiction to do. It is the further contention of Mr. Banerjee that the decision in the case of Balai Chandra Hazra (Supra) did in no way justify such an order of remand as the one that was made by A.N. Banerjee. J. On the other hand, according to Mr. Banerjee the decision in Balai Chandra Hazra's case (supra) strongly deprecates such a procedure and prohibits the recording and appreciation of evidence by this Court while hearing a second appeal. J. On the other hand, according to Mr. Banerjee the decision in Balai Chandra Hazra's case (supra) strongly deprecates such a procedure and prohibits the recording and appreciation of evidence by this Court while hearing a second appeal. In the case of Balai Chandra Hazra (supra) there Will an appeal under Clause 15 of the Letters Patent from the decision of a single Judge of this Court rendered in a second appeal. In the said appeal under Clause 15 of the Letters Patent this Court allowed amendment of the pleadings, framed additional issues on the bull thereof and recorded additional evidence without sending the case back on remand either to the trial court or the court of first appeal. In the case of Balal Chandra Hazro (supra) it was rightly observed by their Lordships of the Supreme Court that the High Court while hearing such an appeal under Clause 15 of the Letters Patent did not have powers larger than those possessed by this Court while hearing a second appeal. Their Lordships further pointed out the constraints which were imposed by the provisions of sections 100 and 103 of the Code of Civil Procedure on the powers of this Court when it hears second appeals. I feel tempted in this regard to quote the following passages from the decision in Balai Chandra Hazra's case (supra) :- "Now, if in second appeal the findings of fact recorded by the first Appellate Court are taken at binding unless fresh additional evidence is permitted to be led when again appreciation of evidence to record a finding of fact would became necessary, that position is not altered even if amendment of pleadings is granted which puts into controversy some new facts alleged in amended pleadings and therefore the Court hearing the granting appeal after granting amendment could not lake over the function or a trial court or the first appellate court and undertake appreciation of evidence and record findings of facts. That is not the function envisaged by the Code of the Court hearing second appeal under section 100. This becomes crystal clear from the provision contained in section 103 which defines the power of the High Court to determine a question of fact while hearing a second appeal. That is not the function envisaged by the Code of the Court hearing second appeal under section 100. This becomes crystal clear from the provision contained in section 103 which defines the power of the High Court to determine a question of fact while hearing a second appeal. But this power of the Court is limited to evidence on record which again is sufficient to determine an issue of fact necessary for disposal of the appeal and which has not been determined by the lower Appellate Court or which has been wrongly determined by such Court. When pleadings are emended at the stage of the appeal under Clause 15 of the Letters Patent and fresh allegations of facts are thus introduced in the controversy which necessitate additional evidence being permitted it would not be open to the Court to proceed to record evidence and to appreciate the evidence and record findings of fact, a function which even ordinarily is not undertaken by the High Court bearing the second appeal, much less can it be done while hearing appeal under Clause 15 of the Letters Patent." "If the High Court while hearing second appeal, conceding that it could have allowed amendment of pleadings, where the amended pleadings substantially raise disputed questions of fact which need resolution afresh after additional evidence, could not undertake that exercise of recording evidence and appreciate 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 by undertaking that forbidden exercise. It would, therefore, appear that when a Bench of a High Court is hearing an appeal preferred upon a certificate granted under Clause 15 of the Letters Patent by a single Judge of the High Court who by his judgment had disposed of the second appeal, the appellate Bench would be subject on the limitation of 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 the pleadings were permitted to be amended by it and the question was raised for the first time before it, to the same extent as the High Court hearing second appeal with constraints of sections 100 and 103 of the Code." 14. In Balai Chandra Hazra's case (supra) it was contended on behalf of one of the parties that the High Court hearing an appeal under Clause 15 of the Letters Patent had no inherent jurisdiction to take oral evidence in respect of the amended pleadings. The learned Advocate for the other party tried to meet the question raised as aforesaid by saying that as the panics agreed to the examination of witnesses and the recording of findings of fact on appreciation of evidence, it would not now be open to any of the parties to resile from the position adopted by him and he is estopped from challenging that. Their Lordships of the Supreme Court held that if the Court lacked inherent jurisdiction no amount of content could confer such jurisdiction on it. That is an established principle of law. 15. When this Court while hearing a second appeal holds that amendments of pleadings should be allowed and after it frames additional issues on the strength of amended pleadings, it cannot itself take evidence and record its findings upon appreciation of evidence so taken by it. Such recording and appreciation of evidence arc not permitted even by the provisions of section 103 of the Code of Civil Procedure, for, only a limited power is conferred on the High Court hearing a second appeal to determine a question of fact. It is only when there is evidence already on record which is sufficient to determine a question of fact, when the determination of such a question is necessary for the disposal of the second appeal in question and when such a question of fact has not been determined or wrona1y determined by the Court of appeal below that the High Court hearing a second appeal can determine a question of fact on the strength of the powers it has under the provisions of the said section 103. 16. We have to keep in mind the law as laid down in the case of Balai Chandra Hazra (supra) referred to above and the soundness or otherwise of Mr. Banerjee's argument in the present case has to be tested by applying such law. 16. We have to keep in mind the law as laid down in the case of Balai Chandra Hazra (supra) referred to above and the soundness or otherwise of Mr. Banerjee's argument in the present case has to be tested by applying such law. In the present case as already pointed out the High Court in second appeal did not itself record evidence and appreciate the same but sent the case back to the trial court after framing an additional issue and required the trial Court to take additional evidence and to send the records of the case to this Court along with the findings of the trial court. In view of the law stated above I cannot but hold that this Court was lacking in inherent jurisdiction when it retained the second appeal on its file without wholly disposing it of and required the trial Court to send back the additional evidence recorded by it along with its findings. In so doing this Court deprived the party who would be aggrieved by the findings of the learned Munsif of his right to prefer an appeal before the first appellate Court which would be the final Court of facts. Further such a course wall forbidden by the Supreme Court and would lead to anomalies. When the find in. of the trial Court would be before this Court, such finding of facts could not be in any way disturbed by this Court in view of the constraints imposed on this Court by sections 100 and 103 of the Code of Civil Procedure. The findings arrived at by the trial Court would be sacresanct. The party aggrieved by the findings of the trial Court recorded after such remand would thus be not in a position to challenge the finding of fact before this Court at the time or hearing of second appeal after remand even though he did not have an opportunity of challenging the finding on facts before the first appellate court. Further, in the present case, when this Court was called upon by the learned Advocate appearing for the plaintiffs-respondents to modify its said order dated May 4, 1978, the learned Advocate appearing for the defendant-appellant objected to the limited remand. Such objection was overruled by this Court and the limited order or remand dated May 25, 1978, was made by this Court. Such objection was overruled by this Court and the limited order or remand dated May 25, 1978, was made by this Court. In the case of Balai Chandra Hazra (supra) both the parties consented to the recording and appreciation of evidence by this Court hearing an appeal under Clause 15 of the Letters Patent but in the present case inspite of the objection taken on behalf of the defendant/appellant, this Court modified the limited order of remand dated May 4, 1978, by the limited order of remand dated May 25, 1978. This course was deprecated and prohibited by their Lordships in Balai Chandra Hazra's case (supra). 17. Mr. R.N. Mitra, the learned Advocate Appearing for the plaintiff/respondents in answering the question raised by Mr. Banerjee for aforesaid challenging the jurisdiction of this Court to make a limited order of remand in the circumstances of the present case drew my attention to the following passage appearing in the case of B. Banerjee v. Smt. Anita Pan (supra) :- "It thus follows that these fresh pleadings can be put in by the plaintiff either in the suit, if that is pending, or in appeal or second appeal, if that is pending. Thereupon the opposite party/tenant will be given an opportunity to file hill written statement and the Court will dispose of it after giving both sides the right to lead additional evidence. It may certainly be open 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 with the Court in exercising this discretion." 18. On the basis of the aforesaid observation Mr. Mitra argued that there was nothing wrong on the part of A.N. Banerjee, J. in making the limited order of remand dated May 25, 1978. This contention of Mr. Mitra, to my mind, is not of any substance. The observation of the Supreme Court made in B. Banerjee's case (supra) as quoted above cannot be taken to have laid down the law that in the circumstances of the present case when pleading is permitted to be amended in a pending second appeal the High Court has powers to record the evidence itself and to appreciate the same. The observation of the Supreme Court made in B. Banerjee's case (supra) as quoted above cannot be taken to have laid down the law that in the circumstances of the present case when pleading is permitted to be amended in a pending second appeal the High Court has powers to record the evidence itself and to appreciate the same. It may be noted here that while making the comments referred to above the learned Judge did not take into consideration the provisions of sections 100 and 103 of the Code of Civil Procedure but when in Balai Chandra Hazra's case (supra) the Supreme Court laid it down that the High Court in second appeal or in an appeal under Clause 15 of the Letters Patent from the decision in a second appeal had no jurisdiction to record additional evidence and to appreciate such evidence itself it took note of the provisions of sections 100 and 103 of the Code of Civil Procedure and dwelt at length on the powers the High Court had while hearing second appeal. Tile observation made in the case of B. Banerjee (supra) and quoted above may at best be a passing comment made by the Supreme Court without considering the matter in question. Further, the decision in Balai Chandra Hazra's case (supra) was a later decision and should therefore prevail. 19. Mr. Mitra further argued that even if it be conceded though he did not intend to so concede that the limited order of remand dated May 25, 1978, made by A.N. Banerjee, J. was one made without jurisdiction the appellant at this stage could not assail the validity of that order in view of the fact that the question by now became res-judicata. In support of this contention of his, Mr. Mitra placed reliance on the decision in (3) Satyadhyan Ghosal & Ors. v. Smt. Deorajin Devi & Anr., AIR 1960 SC 941 . 20. Mr. In support of this contention of his, Mr. Mitra placed reliance on the decision in (3) Satyadhyan Ghosal & Ors. v. Smt. Deorajin Devi & Anr., AIR 1960 SC 941 . 20. Mr. Mitra contended that according to that decision the principle of res-judicata was based on the need of giving it finality to judicial decisions, that once a res was judicata it should not be adjudged again, that primarily the principle of res-judicata applied as between past and future litigations and that the principle also applied between two stages in the lame litigation to this extent that a Court, whether the trial Court or a higher Court, having at one earlier stage decided a matter in one way could not allow the parties to re-agitate the matter at some subsequent stage of the same proceeding. According to Mr. Mitra after the said limited order of remand dated May 25, 1978, was made this second appeal came up for hearing before this Court on October 25, 1979, and this Court by an order of that date lent back the records to the trial Court for a fresh finding as the trial Court in arriving at the finding after remand did not take into consideration the materials which were already there on record before the order of remand and also some important materials which were brought on record after remand. By that order this Court required the trial Court to arrive at a fresh decision on the issue in question after considering all the evidence which are brought on record either before or after the order of remand and to dispose of the matter after hearing the learned lawyers for the plaintiffs and the defendant with in two months from the date of arrival of the records in the trial Court. Mr. Mitra contended that when the second appeal came up for hearing on the aforesaid date, namely, October 25, 1979, the learned lawyer appearing on behalf of the appellant did not challenge the earlier order of remand dated May 25, 1978, and that accordingly that order dated May 25, 1978, should operate as res-judicata and would be beyond any further challenge. Mitra contended that when the second appeal came up for hearing on the aforesaid date, namely, October 25, 1979, the learned lawyer appearing on behalf of the appellant did not challenge the earlier order of remand dated May 25, 1978, and that accordingly that order dated May 25, 1978, should operate as res-judicata and would be beyond any further challenge. On October 25, 1979, within the second appeal came up for hearing both the parties wanted that the finding of the learned Munsif arrived at after remand should be set aside as the learned Munsif did not consider all the materials on record in arriving at a finding on the issue in question. The decision of the learned Munsif recorded after remand was accordingly set aside and the learned Munsif was required to decide the issue in question afresh after faking into consideration all the materials brought on record before and after the said earlier order of remand. Thus, the order dated October 25, 1979, was made on the basis of consent of both the parties and the second appeal was not argued at length on that date. In this view of the matter I find no substance in the contention of Mr. Mitra that the limited order of remand dated May 25, 1978, would operate al res-judicata and would preclude the defendant-appellant from challenging the validity of the order of remand dated May 25, 1978. Thus the case of Satyadhyan Ghosal (supra) has no application to the present case. Mr. Banerjee's contention in this regard Wall that when the question is one of jurisdiction and more particularly one of inherent jurisdiction, such a question could be raised before any court at any stage. Mr. Banerjee referred me to the following passage in (4) Kiran Singh & Ors. v. Chaman Paswan & Ors., AIR 1954 SC 340 :- "It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity and that it is invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties." 21. Further, the question of res-judicata raised by Mr. Mitra was effectually and validly met by Mr. Banerjee on the strength of the principle laid down in (5) Mathura Prasad Sarjoo Jaiswal & Ors v. Dassibai N.B. Jeejibhoy, AIR 1971 SC 2355 . There it is laid down that a question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. When a court by erroneous interpretation of the statute is of the view that it has no jurisdiction, such a view could not operate as res-judicata. In the same way when a Court assumes jurisdiction when it has no such jurisdiction under a statute, such assumption of jurisdiction cannot operate as res-judicata between the same parties, no matter whether the cause of action in the subsequent suit or proceeding is the same or not. This is the view taken in Mathura Prasad Sarjoo Jaiswal (supra). 22. Mr. Mitra also relied on the decison of Ghulam Hasan, J. in (6) Mohan Lal Goenka v. Benoy Krishna Mukherjee & Ors, AIR 1953 SC 65 for the proposition that the plea regarding want of jurisdiction of the executing Court would operate as constructive res-judicata and could not be allowed to be raised at a later stage when such plea was not raised at the time of the execution of the decree and the sales of the property in question held in course of such execution. But in view of the later decision in the case of Mathura Prasad Sarjoo Jaiswal (supra) this contention of Mr. Mitra has no substance, for it is by now well established that when Court assumed jurisdication which it did not have, the question of want of jurisdiction will not operate al res-judicata in a subsequent suit or proceeding no matter whether the cause of action in such suit or proceeding is the same as that in an earlier suit or proceeding. As already pointed out, a question relating to jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of that Court. 23. As already pointed out, a question relating to jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of that Court. 23. In the circumstances aforesaid, I cannot but hold that the contention of Mr. Banerjee to the effect that A. N. Banerjee, J. had no jurisdiction to make the limited order of remand dated May 25, 1978, is a valid objection and that question regarding jurisdiction in the circumstances of the present case as also in law cannot operate as res-judicata. 24. It was also contended that the order of remand dated May 25, 1978 would be a valid and legal order under the provisions of Order 41 Rule 27 of the Code of Civil Procedure. The remand order made in the circumstances of the present case cannot be laid to be an order made under the provisions of Order 41 Rule 27 of the Code of Civil Procedure, for, the circumstances in which an order of remand may be made under laid Rule 27 are quite different from those in which the impugned order of remand was made. This legal position was taken note of in Balai Chandra Hazra's Case (supra). There it was laid down that when because of subsequent change in law, amendment of pleadings was allowed and such amendment rallied disputed questions of fact, the situation so arising could not be one governed by the provisions of Order 41 Rule 27 of the Code of Civil Procedure, for, at that stage it could not be laid that the Appellate Court was permitting introduction of additional evidence, oral or documentary, on the ground that the Court from whole decree an appeal was preferred refused to allow evidence to be adduced which should have been admitted or the Appellate Court required any document to be produced or any witness to be examined to enable it to pronounce judgment. It was further laid down in that case that the situation would not also be covered by the expression "other substantial cause" appearing in clause (b) of sub-rule (1) of Rule 27 of Order 41 of the Code of Civil Procedure. Thus, this contention of Mr. Mitra also fails. 25. It was further contended by Mr. It was further laid down in that case that the situation would not also be covered by the expression "other substantial cause" appearing in clause (b) of sub-rule (1) of Rule 27 of Order 41 of the Code of Civil Procedure. Thus, this contention of Mr. Mitra also fails. 25. It was further contended by Mr. Banerjee that as the only around taken in the present suit was the ground of reasonable requirement of the plaintiffs and as the averment required by clause (ff) of subsection (1) of section 13 of the West Bengal Premises Tenancy Act was not there in the original plaint the plaint should have been rejected in according with the provision of Rule 11 of Order 7 of the Code of Civil Procedure. The suit was admittedly instituted after the amendment incorporating said clause (ff) was made by the legislature. At the plaint did not contain the laid averment the trial Court should have rejected the plaint after holding that the plaint disclosed no cause of action. In the facts and circumstances of the present case the defendant/appellant cannot be permitted to raise this question in second appeal when she failed to raise that Question even at a later stage but before this Court allowed an amendment of the pleadings with a view to incorporation such averments as were required by said clause (ff) of section 13 (1). The defendant/appellant should be taken to have known that the law prevailing at the date of the institution of the suit required an averment in the plaint to the effect that the plaintiffs were not in possession of any reasonably suitable accommodation but no such objection was taken even at a time when this Court made the order allowing the plaintiffs to amend their plaint and the defendant to file additional written statement. In terms of that order of this Court the plaint was amended and additional written statement was filed. In the circumstances aforesaid, I find no substance in the contention of Mr. Banerjee. 26. In view of the law discussed and explained in the foregoing paragraphs the only course left open to this Court it to set aside all the judgments and decrees and to lend the case back to the trial Court for a fresh decision of the wit according to law. Banerjee. 26. In view of the law discussed and explained in the foregoing paragraphs the only course left open to this Court it to set aside all the judgments and decrees and to lend the case back to the trial Court for a fresh decision of the wit according to law. Be it noted here that this course is adopted to enable the party who will feel aggrieved by the decision that may be taken by the trial Court to avail itself of the right of preferring an appeal to the first appellate Court which right it was deprived of by reason of the said limited order of ramand dated May 25, 1978. Be it noted in particular that it is on this ground alone that the present remand order is made and it has nothing to do with the merits of the respective cases of the parties. Further, this Court cannot and does not at this stage make any comment on the soundness or otherwise of the decision taken by the trial Court after the said order of remand dated May 25, 1978. The trial Court is to take into consideration all the evidence already on record including the evidence adduced before and after the said order of remand dated May 25, 1978. The setting aside of the judgments and decrees by this Court does, in no way, indicate that the decision of the learned Munsif rendered after the said order of remand dated May 25, 1978 was either right or wrong. In this view of the matter this Court does not go into the merits of the case and leaves the matter entirely to the trial Court. 27. The appeal is allowed, the judgments and decrees impugned are set aside and the case is sent back on remand to the trial Court for a fresh decision on all materials already on record and according to law. No further evidence should be allowed to be adduced. The trial Court is to hear arguments and dispose of the suit. In view of the fact that this case did have a chequered career the trial Court is directed to dispose or the suit within two months from the date of the receipt of the records by that Court. In the circumstances of the case I make no order as to costs. The records be sent down as expeditiously as possible.