A. M. Bhattacharjee, Sukumar Chakravarty ( 1 ) THIS appeal is directed against the judgment and decree of dismissal passed by Shri H. Chakravarty, the learned Judge, 10th Bench, City Civil Court, Calcutta in Ejectment Suit No. 769 of 1961 after remand by this court in appeal from original Decree No. 515 of 1963. ( 2 ) PLAINTIFFS filed the aforesaid suit for eviction of the defendant from the disputed room in the ground floor of the premises No. From the disputed room in the ground floor of the premises. No. 113/1a, Chittaranjan Avenue, on the ground of default in payment of rent, reasonable requirement of the plaintiffs' own use and occupation, waste and damage by making lofts in the disputed room without the knowledge of the plaintiffs and nuisance by stacking dirty waste papers emitting bad smell. The defendant contested the suit denying the allegations. ( 3 ) THE trial court found the issues on the point of notice and on the points of reasonable requirement waste and nuisance in flavor of the plaintiffs but found against the plaintiffs the issue on the point of default in payment of rent. The trial court accordingly decreed the suit on the grounds of reasonable requirement, waste and nuisance. On appeal, the High Court by its judgment dated 24. 6. 70, upheld the findings open the issues of notice and default in the suit for fresh trial on the issues of reasonable requirement, waste and nuisance after giving opportunities payment of rent but remitted to the parties for fresh trial on the issues of reasonable requirement, waste and nuisance after giving opportunities to the parties for further evidence if any, subject to the direction that findings on the issues of the notice and default in payment of rent would not be reopened. ( 4 ) AFTER the suit was sent back to the trial court on remand, the plaintiffs field an application on 12. 8. 72 for amendment of the plaint by incorporating the facts regarding the existing accommodation and the number of the members of the plaintiffs' family and requirement. The said application was made part of the plaintiffs' family and requirement. The said application was made part of the plaint by the trial court's order dated 28. 8. 72. Mention may be made here that although the application for amendment of the plaint was filed on 12. 8. The said application was made part of the plaintiffs' family and requirement. The said application was made part of the plaint by the trial court's order dated 28. 8. 72. Mention may be made here that although the application for amendment of the plaint was filed on 12. 8. 72 long after the amendment of the west Bengal Transfer of Property Act in 1969, the plaintiff did not aver in the said amendment application that the plaintiffs were not in possession of any reasonable suitable accommodation perhaps on the judicial announcement it was then, that the amended provision was not reentrance. The trial court also did not frame any issue of this nature determination and did not arrive at any finding on the pointed whether the plaintiffs were in possession of any reasonably suitable recommendation. ( 5 ) THE trial court however on consideration of the materials in record found that the accommodation available to the plaintiff was sufficient to meet the reasonable requirement of the plaintiff and that the plaintiffs had no reasonable requirement of the suit room, that the defendant was not guilty of any act of waste resulting in material determination of the conditions of the disputed room and of any conduct amounting to nuisance or causing annoyance to the neighbors and the plaintiffs, the trial court accordingly dismissed the suit. ( 6 ) BEING aggrieved, the plaintiffs have preferred this appeal on the ground that the leaned Judge committed mistake both in facts and law in dismissing the suit. ( 7 ) DURING the pendency of the appeal, the plaintiffs-appellants filed the petition under Orde 6 Rule 17 Code of Civil Procedure for amendment of the plaint by incorporating therein the material fact that the plaintiffs were not in possession of any reasonably suitable accommodation, which has been made a conjunctive condition along with the condition that the plaintiffs as owner-landlords reasonably require the tenanted premises for their own use and occupation in the ground for eviction of the tenant under the amended provision of Section 13 (1) (ff) of the west Bengal Transfer of Property Act (hereinafter referred to as the Act) by the Amending Act of 1969 and also by inserting the subsequent events showing the growth in age of some members and increase in the number of the members in plaintiff's family. The defendant - respondent filed objection to the same. The defendant - respondent filed objection to the same. The said amendment petition though filed in 1983 could be heard along with the hearing of the appeal itself. ( 8 ) MR. C. N. Mukherjee, appearing for the appellants-plaintiffs in his entire submission with regard to the merit of the appeal, has challenged the finding of the learned judge on the issue of reasonable requirement, and has submitted that if the subsequent events showing the growth in age of some members in plaintiffs' family and increase in the numbers in plaintiffs' family as alleged in the amendment petition are taken into consideration, which even the appellate court can legally do, then plaintiffs' reasonable requirement for the dispute room will be conclusively found by the court. As regards the amendment of the plaint by incorporating the material fact that the plaintiff are not in possession of any reasonably suitable accommodation, Mr. Mukherji submits that the presses for such amendment provided this court on consideration of the materials in the record finds that there is no such material in evidence and provided this court holds that in the interest of justice and proper adjudication, such amendment is necessary, and proper satisfactory evidence in this respect is required to be adduced. Mr. Mukherjee has in his usual fairness further submitted that on the materials in the record, he is not in a position to success fully challenge the findings of the learned judge on the grounds of waste and nuisance as bad or perverse. ( 9 ) MR. S. Roy Chowdhury, the learned counsel for the respondent defendant while supporting the judgment of the learned Judge has submitted that his court can not are into considerations subsequent evenings as regards the reasonable requirement of the plaintiffs after the passing of the impugned judgment and decree of dismissal. His further submissions that the amendment of the pleadings as sought f9or by the plaintiffs at his stage should not be allowed, but if allowed, defendant should be given opportunity to file additional written statement and evidenced on such amendment. His further submissions that the amendment of the pleadings as sought f9or by the plaintiffs at his stage should not be allowed, but if allowed, defendant should be given opportunity to file additional written statement and evidenced on such amendment. ( 10 ) IT has already been stated earlier that the suit for eviction of the defendant from the disputed tenanted room was instituted in 1961 on the ground of default in payment of rent, reasonable requirement, waste and damage of the tenanted room and causing nuisance to the neighbors including the plaintiffs after service of notice according of law. The suit was decreed by the learned Judge Shri N. C. Ganguly, on the grounds of reasonable requirement, waste and nuisance only after answering the issue on the point of notice in favor of the plaintiff. The issue on point of default in payment of rent was however answered against the plaintiffs. On appeal, this court presided over by Chittatosh Mukherjee, J. By its judgment dated 24. 6. 1970 while upholding the findings of the trial court on the issued of notice and default in payment of rent, remitted the suit for fresh trial on the issues of reasonable requirement, waste and nuisance after giving opportunities to the parties for further evidence if any, subject to the direction that the findings on the issues of the notice and default in payment of rent would not be reopened. ( 11 ) IT was the case of the plaintiffs that the construction of two lofts by the defendant in the disputed room for stacking waste papers by inserting rafters in the walls and placing bamboo poles as props, without the consent of the plaintiffs caused waste and damage to the suit premises. The learned judge on due consideration of the evidence of Advocate Commissioner, P. W. 2 and two Engineer Commissioners P. W. 6 and P. W. 10, and the Advocate Commissioner's report Ex. 4 and Engineer Commissioner's repot Ex. 8, found that he holes dug in the wall and floor had been duly filled up by defendant and that there was no sigh of any wise or damage whatsoever in the wall and floor of he disputed room and that the lofts were easily removable without damaging the structure of the building. 4 and Engineer Commissioner's repot Ex. 8, found that he holes dug in the wall and floor had been duly filled up by defendant and that there was no sigh of any wise or damage whatsoever in the wall and floor of he disputed room and that the lofts were easily removable without damaging the structure of the building. The learned Judge accordingly held that the defendant was not guilty of any at of waste and damage by constructing the lofts in the disputed room. We agree to such finding of the learned Judge. The learned counsel for the appellants has also not challenged that finding in his submission. ( 12 ) AS regards the found of causing nuisance by stacking waste papers in the disputed room, which according to the plaintiffs emit bad smell, the learned Judge on due consideration of the materials in the record, found that the plaintiff failed to prove the same by examining disinter rested neighbors. We have considered also the materials in the record in this respect and we find no ground to interfere with such finding of the learned judge. The learned counsel for the appellants has also not challenged this finding of the learned judge in his submission. ( 13 ) THE subsequent events with regard to the growth in age of some members in plaintiffs' family and increase in the members of plaintiff's family after the judgment and decree passed by he trial Court, sought to be introduced by the plaintiffs during the pendency of the appeal by way of amendment of the plaint to show the plaintiffs' reasonable requirement have not been clearly and specifically disputed by he defendant although generally denied. Mr. Mukherji, the learned counsel for the plaintiffs has submitted that the said subsequent events can be taken into consideration by the Appellate Court as additional piece of evidence even without amendment of the plaint. Mr. Roy Chowdhury however submits that such events after the decree cannot be considered by the "appellate Court. The principles of law in this respect has been settled by the Supreme Court in its decision in the case, Hasmat Rai and Anr. Mr. Roy Chowdhury however submits that such events after the decree cannot be considered by the "appellate Court. The principles of law in this respect has been settled by the Supreme Court in its decision in the case, Hasmat Rai and Anr. v. Raghunath Prasad, reported in A. I. R. 1981 S. C. 1711 by observing as follows:"where possession is sought for personal requirement it would be correct to say that the requirement pleaded by he landlord must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made. If in the meantime events have cropped up which would show that the landlord's requirement is wholly satisfied then in that case his action must fail and in such a situation it is incorrect to say that as decree or order for eviction is passed against he tenant, he can not invite the court to take into consideration the subsequent events. Once an appeal against decree or order of evictions passed, the appeal being a continuation of suit, the landlord's need must be shown to continue to exist at appellate stage. If the tenant is in a position to show that the need or requirement no more exists because of subsequent events, the court including the appellate "court has to examine, evaluate an d adjudicate the same. "the said principle of law will be applicable also to the cases showing the increase in plaintiff-landlord's requirement. ( 14 ) THE said principle of law showing the increase in landlord's requirement since after the filing of the socket was followed in the case, Santilal Dulichand v. Ramesh Chadra Gusrati, repotted in A. IR. 1981 Cal 413 with the observation that "undoubtedly the plaintiff's requirement has considerably increased since after thee filing of he suit. That is an aspect which has to be taken into consideration. ( 15 ) WE are of the view that the subsequent events as sought to be produced as additional evidence by the plaintiffs may be allowed to be produced as additional evidence by the plaintiffs man be allowed to be produced for proper adjudication of the suit, if the same is undisrupted. ( 15 ) WE are of the view that the subsequent events as sought to be produced as additional evidence by the plaintiffs may be allowed to be produced as additional evidence by the plaintiffs man be allowed to be produced for proper adjudication of the suit, if the same is undisrupted. Even if we do so it regard to the subsequent events as mentioned above, we are not relieved of the difficulty in filially disposing of this appeal or sit as the other amendment as sought for in the petition for amendment is not for the subsequent event after the decree passed by the trial court. It has already been stated that the plaintiffs want to amend that the pleadings by incorporating the averment that the plaintiffs are not in possession of any reasonably suitable accommodations, in view of the retrospective operation of the amended provision of Section 13 (1) (ff) of the Act as given by Section 13 of the Amending Act. Mr. Mukherji has however urged before us that if this court on the basis of the evidence available in the record, is satisfied to find that the plaintiffs are not in possession of any reasonably suitable accommodation even in the absence of such averment in he plaint, then he will not press of such amendment. ( 16 ) IN the case of B. Banerji v. Anita Pan reported in A. I. R. 1975 S. C. 1146, the transferee-landlord instituted the suit for eviction of the tenant on the ground of original Section 13 (1) (f) of the Act Within 3 Years of the transfer. Because of he change of the law by the Amending Act of 1969 for protection of tenant's interest, and because of the retrospective operation of the amended provisions of Section 13 (1) (ff) and 13 (3a), the transferee-landlord's suit for recovery of possession of eviction of the tenant was bound to fail in view of Seduction 13 (1) of the Act and the transferee - land lord would have been required to institute fresh suit. To 'avoid multiplicity of litigation' and 'purposeless proliferation of litigation', the Supreme Court directed the plaintiff transferee - landlord to file fresh pleadings setting out the grounds under Clause (f) and/or (ff) of Section (1) of Section 13 of the Act. If the plaintiff - landlord so wishes. To 'avoid multiplicity of litigation' and 'purposeless proliferation of litigation', the Supreme Court directed the plaintiff transferee - landlord to file fresh pleadings setting out the grounds under Clause (f) and/or (ff) of Section (1) of Section 13 of the Act. If the plaintiff - landlord so wishes. While giving such direction, the Supreme court held that "on such pleading being filed we may legitimately hold that the transferee - landlord institutes hits suit on grounds mentioned in Clause (f) or (ff) of Sub-section (1) on that date. " Before giving the aforesaid direction in B. Banerji's case in A. I. R. 1975 S. C. 1146, the Supreme Court observed in paragraph 26 that "we are satisfied further that the suit, as originally brought in, is defective since it did not contain - and ordinarily could not - averments complying with the new Classes (f) and I (FF) of Sub-section (1) of Section 13. " ( 17 ) IN the case of Ashalata Dey and Ors. v. Kamal Kumar Bose reported in AIR 1980 Cal. 271 , the Division Bench of this court after discussing B. Banerji's case (supra) held as follows :-"in our view the retrospective operation of the amendment having been upheld by the Supreme Court, the amendment of the pleading becomes a necessity as otherwise the suit is likely to fail on the - plaintiffs' failure to plead and prove their requirement within he four corners of he amended provision. Such a necessity having arisen on amendment of the law pending the suit and for no fault of the plaintiffs, it is just and proper that they should be given the necessary opportunity to meet the requirement of the law and make out a case in terms of the amended statute. " ( 18 ) IN he Single Bench decision in the case of Adhir Kumar Das v. Juthika Sen Reported in AIR 1981 Cal. " ( 18 ) IN he Single Bench decision in the case of Adhir Kumar Das v. Juthika Sen Reported in AIR 1981 Cal. 334 , B. N. maitra, J. has held that the amendment of the plaint by inserting that the plaintiff is not in possession of any reasonable suitable accommodation, is necessary, by following the decision in B. Banerji's case (supra) and the Bench case of Prabodh Chandra v. Chandra Mohan reported in AIR 1978 cal 224 wherein it has been held that in view of the amended previsions of Section 13 (1) (ff) of the Act, the plaintiff is required to plead and prove that he is not in possession of any reasonably suitable accommodation. The same principle of law has been followed by S. M. Guha, J. In the case of Nerode Gopal Bhattacharya v. Bela Kundu reported in 84 Calwn 776. ( 19 ) IT is true that S. K. Datta, J. In the Single Bench case of Bijan Behari Bhattacharya v. Krishna Prakash Mitra and Ors. Reported in 82 Calwn 260, has however, observed as follows: -"while normally the procedure as suggested," (that is, to give opportunity to the plaintiff to amend the plaint by adding the averment to he effect that he plaintiff is not in possession of any reasonably suitable accommodation with further opportunity to parties to adduce evidence in this respect,) "should be followed, in this case there is evidence of P. W. 2 staring that the original plaintiff or the sons had no niter house property for such accommodation. In view of he said averment which has not been challenged, I am reluctant to delay the teen years old proceedings forte, particularly when here is no averment in the supplementary affidavit incicating that the plaintiffs were in possession of any reasonable accommodation. "while making the aforesaid observation in connection with the disposal of the aforesaid case, S. K. Dutta, J. However accepted he principle that normally the procedure to plead and prove should be followed. "while making the aforesaid observation in connection with the disposal of the aforesaid case, S. K. Dutta, J. However accepted he principle that normally the procedure to plead and prove should be followed. ( 20 ) IN the Bench case of Shantilal v. Mukunda Lal repotted in AIR 1980 Cal 381 , Chittotosh Mukherji, J. and B. N. Maitrta, J. held that the trial court was justified in framing the issue if the plaintiff has sufficient accommodation elsewhere apart form the disputed promises even in the absence if such averment in the plaintiff as the defendant's lawyer in that case submitted draft issue to that effect and wanted to go on trial on that issue. ( 21 ) B. N. Maitra, J. , however, in the subsequent Single Bench case of Adhir Kumar Das v. Juthima Sen (supra) distinguished the decision in the Bench case of Shantilal v. mukunda Lal (supra) and he held that the plaintiff is required to plead and prove that be is not in possession of any reasonably suitable accommodation. ( 22 ) IN the Division Bench decision in the case of West Bengal Provincial Co-operative Bank Ltd. v. Sailendra Nath Ghose repotted in 84 Calwn 221, their Lordships following he decision in the case of Shri Venkatarama Deveru v. State of mysore reported in AIR 1958 SC 255 , have held that "the court can not therefore decide a case which is not pleased" with the observation that "if any evidence is adduced with a view to making out a case which was not disclosed in the plaint and particularly in the absence of any issue such evidence ought not to be relied upon, for that would be doing injustice to the other party who would be taken by surprise. " ( 23 ) THE ration of all the decisions as discussed above rather goes to show that in a suit for eviction on he ground of the amended provision of Section 13 (1) (ff) of he Act, the operation of which has been made retrospective, and wherein one of he conditions of the ground of eviction under Section 13 (1) (ff) is that he owner plaintiff-landlord is not in possession of any reasonably suitable accommodation, the plaintiff must plead and prove such condition in addition to other conditions of Section 13 (1) (ff) in order to get a decree for eviction, when such condition has been inserted in the amended provision of Section 13 (11) (ff) for protection of he interest of the tenant. ( 24 ) IN the instant suit, there is no such averment in the pleading, no issue on such condition and no satisfactory evidence adduced by both parties being conscious of such condition. The disputed room is in the premises No. 113/1a Chittaranjan Avenue. P. W. 1 (plaintiff No. 3) has stated in his examination-in-Chief that he plaintiffs have four houses at Gray Street, one house at Garpar Road and one house at Bejoy Bose Rode. In cross-examination this witness has admitted that they have 4 to 10 other houses in Calcutta, 4 to 5 houses at Houses at Howrah, a house at Nabadwip and a Garden house at Chandernagar and this witness has further stated tat all he other houses are occupied by tenants. It does not appear that he defendant has adduced any evidence on this point. In the Circumstances at a finding on such important condition of the aground of eviction under Section 13 (1) (ff) on such cursorily evidence in the absence of pleading, issue and evidence given by the parties being conscious of he said condition. ( 25 ) WE therefore feel inclined to allow the plaintiffs' present petition for amendment as a whole and to give opportunity to defendant for filing additional written statement, if any, and then to frame the additional issue, " Are the plaintiffs in possession of any reasonably suitable accommodation?" And to get he said issue decided along with the issue no. I plaintiffs reasonable requirement by the trial court after giving opportunities to the parties to the adduce further evidence if any in the interest of justice and proper adjudication of the suit. I plaintiffs reasonable requirement by the trial court after giving opportunities to the parties to the adduce further evidence if any in the interest of justice and proper adjudication of the suit. This can be done by remitting the suit to the trial court for the purpose after setting aside the judgment and decreed of dismissal but without disturbing the findings of the trial court on the issues of notice and default in payment of rent as earlier upheld by this court and on the issues of waste and nuisance as upheld by us this time. While sending the suit on remand, we shall give definite direction upon the trial court to decide the issue no. I along with the additional issue which will be framed by us as indicated above on further materials to be produced by the parties by way of evidence and in accordance with the decision either in favor of or against the plaintiffs, the trial court shall decree or dismiss the suit. ( 26 ) WE therefore allow the appeal accordingly without costs and set aside the judgment and decree of dismissal without disturbing the findings of the trial court on the issues of notice and default in payment of rent as earlier upheld by this court and also on the issues of waste and nuisance as upheld by us this time, and allow the plaintiffs' petition for amendment as a whole and direct the defendant to file additional written statement, if any, within a fortnight. While doing so, we have not lost sight of the fact that the suit is pending since 1961. We have also kept in view that he plaintiffs themselves seeking the courts decree for eviction, have prayed for amendment of the plaint. In our best consideration, prayed for amendment of the plaint. In our best consideration, we have found no other alternative but to give the above order in the interest of justice and proper adjudication of the suit. ( 27 ) IN the circumstances of this case I agree with and concur in the judgment of my Lord Chakravarty, J. , but I would like to add as hereunder. In our best consideration, we have found no other alternative but to give the above order in the interest of justice and proper adjudication of the suit. ( 27 ) IN the circumstances of this case I agree with and concur in the judgment of my Lord Chakravarty, J. , but I would like to add as hereunder. ( 28 ) THE decision of the Supreme Court in B. Banerjee v. Anita pan ( AIR 1975 SC 1146 ) and the decisions of this Court following the same have given rise to an I oppression that in a suit for adjustment on the ground of reasonable requirement for the landlord's own occupation which is pending in appeal on the date of the commencement of the West Bengal Premises Tenancy (Second Amendment) Act, 1969, the plaintiff has acquired almost an automatic and indefeasible right to amend his plaint in order to insert the averment in accordance with clause (ff) of Section 13 (1), as amended by the 1969 Act, to the effect that the " is not in possession of any reasonable suitable accommodation". I am afraid that the impression has taken too broad a form and too wide a shape. Such amendments of the plaints at the appellate state with resultant additional written statements and retrial of the additional issues are delay in the disposal of the abetment cases to as very considerable degree and can not, therefore, be a matter of easy insouciance but must be a matter of anxious advertence and should be allowed only when those can not but be allowed. If in a given case, on the materials on record the plaintiff-landlord can not make out a case of reasonable requirement for own occupation, even assuming that he has pleaded and proved that he is not in possession of a reasonably suitable accommodation, then the plaintiff can not be granted the leave to amend his plaint only to formally insert such averment, notwithstanding anything in the Supreme Court decision in B. Banerjee (supra) and the series of decisions of this Court following the same. Then again, if in a given case, even though he plaintiff did not or could not make such averment, the defendant nevertheless pleaded that the plaintiff was in possession of reasonably suitable accommodation and the matter was accordingly investigated by the trial court on the evidence adduced by both he parties for the purpose, the plaintiff cannot be allowed to claim amendment and consequential re-trial solely on the ground that the averment was not articulated in his plaint. In all such case granting leave to amend would not only be entirely purposeless and an idle formality but would rather amount to abuse of legal process. The decision of S. K. Datta, J. , In Bijan Behari v. Krishna Prakash (82 Calwn 260) referred to by my lord in his judgment is on the point with which I respectfully agree. But since I am agreeing to allow amendment in this case for the reasons stated by my Lord in his judgment, I need on pursue he matter any further. Appeal allowed. .