Sabyasachi Mukharji, J. - (1.) In this case the plaintiffs filed ejectment suit No. 1691 of 1963 in the City Civil Court. Calcutta for recovery of posses-sion of premises No. 43. Serpentine Lane, Calcutta. The plaintiffs purchased the premises by a conveyance dated 11th September. 1962. The defendant attorned the tenancy and paid rent to the plaintiffs upto the month of October, 1962. According to the plaintiffs they reasonably required the entire premises for their own occupation. The plaintiffs further contended that the deposits of the rent from the months of December. 1962 to June, 1963 were invalid and the defendant was not entitled to protection against eviction. The plaintiffs further alleged that they had determined the tenancy by serving upon the defendant by registered post a combined notice of ejectment and notice of suit dated 22nd August, 1963 requiring the defendant to quit, vacate and deliver vacant possession of the premises on the expiry of the last day of September, 1963. The defendant filed his written statement, The defendant contended that the plaintiffs should be required to prove strictly that both of them reasonably required the premises in question for their own use and occupation. The defendant further contended that the notice was illei gal and insufficient and did not determine the tenancy. Issues were framed at the trial. One of the issues was "Has the notice of ejectment been duly serv- ed. Is the same valid and sufficient." Evidence was given. The learned trial Judge recorded that the learned lawyer for the plaintiff did not press the case of reasonable requirement and as such the suit was contested on the solitary question of default. The next question that was considered was the validity and sufficiency of the notice under Section 13 (6) of the West Bengal Premises Tenancy Act. 1956. It appears that there was a notice dated 20th October. 1962 by which the defendant was asked to quit, vacate and deliver up vacant possession of the premises on the expiry of the last day of November. 1962 on the ground that the premises in question was reasonably required by the plaintiffs. There was a second notice dated 22nd August, 1963 which recited that the portion at the back of the premises No. 43, Serpentine Lane was reasonably required by the plaintiffs for their use and occupation and the defendant was a defaulter in payment of the rent and called upon him to quit, vacate and deliver vacant possession on the expiry of the last day of September. 1963. The notice concluded by stating that in case of failure to com-ply with the notice a suit for recovery of possession would be brought against the defendant. The learned trial Judge held that the defendant in the written statement did not challenge the service of the notice and the trial Court further held that the notice had been duly served and it was valid and sufficient in law. The trial court was of the opinion that whatever might be said about the first notice, the second notice did not suffer from any kind of infirmity. Accordingly, the trial Court decreed the suit and gave the plaintiffs possession after evict-Ing the defendant. In view of the difficulties of fixing up an alternative accommodation the trial court allowed the defendant six months' time from the date of the decree on condition of his paving to the plaintiffs, month by month an amount equivalent to the rent and in default of such payment, the decree which was to remain suspended for six months would become executable forthwith. The defendant preferred an appeal from the decree passed by the City Civil Court. Some of the grounds taken, inter alia, were that the trial court was wrong in holding that the notice marked as exhibit 2 was legal, valid and sufficient to determine the defendant's tenancy, that the court below took an erroneous view of legal presumption as to service of notice, the Court below was wrong in presuming the service of notice and that the court below erred in law in holding that the service of notice was effective because the acknowledgment. Exhibit 3, bore the signature of the defendant. Exhibit 2 was the notice dated 22nd August, 1963. By the said notice the defendant was called upon to vacate and deliver vacant possession of the portion at the back of the premises No, 43, Serpentine Lane on the expiry of last day of September, 1963 as that portion was reasonably required by the plaintiffs for their own occupation and as the defendant was a defaulter in payment of rent for the month of November. 1962. Exhibit D was the notice dated 20th October, 1962. By the said notice the defendant was called upon to quit, vacate and deliver the possession of the portion at the back of the premises No. 43, Serpentine Lane. Calcutta, on the expiry of the last day of November, 1962. as the portion was reasonably required by the plaintiffs for their own occupation.
(2.) The appeal came up for hearing before a Division Bench of this Court consisting of P. N. Mookerjee. J. and A. K. Dutt, J. The aforesaid Division Bench held that in disposing of the said appeal two fundamental questions arose, namely :-- (1) whether one Division Bench of this Court has authority to hold that another Division Bench did not correctly state the law or the effect of the prior Special Bench decision; (2) whether the learned Judges in 71 Cal WN 686 = (AIR 1968 Cal 1861 had authority to override, as they pur-Ported to do. the Bench decision in ILR (1966) 2 Cal 1. The Division Bench held that so far as they were concerned they had no doubt in their mind yet they adopted the above course, in the words of the learned Judges of the Division Bench, "out of respect for law and for retrieving it from the quagmire, into which it has been thrown by the precipitate observations in ". The aforesaid reference was made under Rule 2 of Chapter VII of the Appellate Side Rules, of this Court. The reference came up for hearing originally before a Full Bench consisting of Ray, J., Sankar Prasad Mitra, J., and Bagchi, J. It has been observed in the judgment of the said Full Bench dated 9th of February that counsel on behalf of the respondent before the Full Bench had contended that the notice in the present case gave grounds of reasonable requirement of the premises, and also gave notice of the institution of a suit failing delivery of the possession and therefore the present case did not raise any controversy as to whether the notice required grounds to be stated or not. Counsel for the ap-pellant on the other hand had contended, as recorded by the said Full Bench, that though the notice stated the grounds, yet he would raise the contention that the notice was invalid in law. In view of the aforesaid facts it was contended be- lore the Full Bench that inasmuch as the notice in this case contained the grounds, the court would not be required to go into the question whether the grounds were required to be stated in the notice or not and the question would be of academic interest in the present case. In the aforesaid view of the matter the Full Bench felt it necessary to find out how the point arose in this appeal as to the correctness of the aforesaid decisions in the cases of Punam Chand Daga v. Subhakaren Dosani. and M K. Bhimani v. Kesha'b Chandra Basil, TLR (19661 2 Cal 1. The Full Bench therefore sent the matter back to the Division Bench for finding as to how the question of correctness of the aforesaid two Bench decisions arose in the facts and circumstances of the present case. Thereafter the matter was placed before the Division Bench consisting of P. N. Mookerjee, J. and A. K. Dutt. J. By an order dated 13th of May, 1968 the .said Division Bench made it clear that reference was being made under Rule 3 of the Chapter VII of the Appellate Side Rules, and not under Rule 2 as wrongly typed in the original order of reference. The Division Bench further made it clear that this reference had been made on a clear finding that the point referred did arise in the instant case and they reiterated that finding and further recorded that the learned advocates appearing for the parties before them, namely, Mr. Chakra-borty and Mr. Lala. did agree, after full discussion in Court, that the said points did arise in this appeal. In those circumstances, the Division Bench did not feel called upon to give their reasons for the said finding nor did they feel obliged under the law to state those reasons for the purposes of this reference or for sending the matter back to the Full Bench.
(3.) The reference has, thereafter, come before us for disposal. At the hearing of the reference counsel for the respondent stated before us that the matter had been amicably settled between the parties and as such he was not in a position to make any submissions as to the questions referred. He further submitted that the appeal had become infructuous.;