SANKAR PRASAD MITRA, J. - (1.) THIS Full Bench Reference have been made by a Bench consisting of Pradyot Banerjee and B. N. Maitra, JJ. under Chapter VII, Rule 3 of the Appellate Side Rules. Two questions have been referred to the Full Bench. These questions are: (1) Whether a notice under Section 114 -A of the Transfer of Property Act is to be given if the ground on which the ejectment is prayed for is under Section 13 (1) (b) of the West Bengal Premises Tenancy Act, 1956, that is, if a tenant or a person residing in the premises has done any act contrary to the provisions of clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, 1882? (2) Whether the decision of the Division Bench reported in : AIR1977Cal122 (Mahasukrai Ramrichpal v. Kishori Charan Law) was correctly decided?
(2.) THE appellant was a tenant under the plaintiff in respect of the upper western flat on the first floor of premises No. 3/B, European Asylum Lane, now named as Abdul Halia Lane. A decree for eviction was passed against the appellant on the ground of unauthorised and permanent construction contrary to the provisions of Section 108 (m), (o) and (p) of the Transfer of Property Act. Before the Division Bench of Banerjee and B. N. Maitra, JJ. Mr. Mitra appearing for the appellant contended that in view of the finding of an unauthorised construction of a permanent nature it was difficult for him to argue that the case did not come within the mischief of Section 108 (m), (o) and (p) of the Transfer of Property Act, in particular, clause (p). Mr. Mitra submitted before the Division Bench that he was agreeable to remove the offending structure and the decree should be set aside. Learned Counsel relied on the judgment of the Supreme Court in Brij Kishore v. Vishwa Mitter Kapur, AIR 1965 SC 1574. Tn Brii Kishore's case the Supreme Court was considering certain provisions of Delhi Rent Control Act, 1958, and Delhi and Ajmer Rent Control Act, 1952. The relevant provisions of Section 13(1) of the 1952 Act were as follows: '13 (1) Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by the Court in favour of the landlord against any tenant (including a tenant) whose tenancy is terminated. Provided that nothing in this Sub -section shall apply to any suit or other proceeding for such recovery of possession if the court is satisfied. XXX XXX XXX XXX (k) that the tenant has, whether before or after the commencement of this 'Caused or permitted to be caused substantial damage to the premises, or notwithstanding previous notice has used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Improvement Trust while giving him a lease of this land on which the premises are situated'.
(3.) THE Supreme Court in construing the above provisions and similar provisions in the 1958 Act has observed in paragraph 7 at page 1577 of the judgment that: 'It will be seen that Section 114 -A gives power to Court to give relief to the tenant against forfeiture where it holds that the landlord did not give reasonable time to the tenant to remedy the breach. In such case it can dismiss the suit as not maintainable. It is true that Section 114 -A would not in specific terms apply to cases like the present; but eject -ment on the ground specified in Clause (k) to the proviso to Section 13(1) of the 1952 -Act was somewhat analogous to forfeiture on breach of an express condition of a lease for it also required previous notice to the tenant before the suit is filed. XXX XXX XXX We do not think that it can be said that the 1952 -Act forbade the Court from granting relief where the offending structures were removed by the tenant even during the pendency of the suit for ejectment. What is reasonable time within which the breach should be remedied is always a question of fact and we think it could have been possible for the Courtin a suit based on Clause (k) of the proviso to Section 13(1) to give relief against forfeiture in proper case where the tenant had removed the offending structure before the suit was filed or even during the pendency of the suit if reasonable time was not allowed in the notice contemplated by Clause (k) of the proviso to Section 13(1).' ;