Judgement JUDGMENT:- In spite of the very strenuous argument advanced by Mr. N.B. Kharga, the learned advocate for the appellant, I have not been able to discover any good reason for allowing this Appeal by the tenant-appellant against the decree of eviction passed against him in this Suit, giving rise to this Appeal, and the decree under Appeal would therefore stand. 2. The suit filed by the landlord-respondent against the tenant-appellant was for the eviction of the latter from the suit premises on the grounds, firstly, that the landlord-respondent required the suit premises bona fide for his own use and occupation and, secondly, that the tenant made unauthorised additions to and alterations of the suit-premises and, thirdly, that the tenant also caused damages to the suit premises. 3. As to the ground that the tenant made unauthorised additions to and alterations of the suit premises, the learned Judge has observed that "it will have no bearing on the decision of this suit as it is now well settled that no ground of addition and alteration to the building has been contemplated in Sec.4 of the Gangtok Rent Control and Eviction Act, 1956". The learned Judge's reading of Section 4 of the Rent Control and Eviction Act is correct as that section does not provide additions and alterations made to the premises by the tenant without the approval of the landlord as a ground far eviction. But the learned Judge ought to have noted that in Sec. 12 of that very Act unauthorised additions and alterations made by the tenant have clearly been made a ground for eviction of the tenant. The learned Judge, however, has made no finding as to the alleged additions and alterations and Mr. B.C. Sharma, the learned advocate appearing for the landlord-respondent, also could not seriously urge that the trial Judge ought to have decreed this suit on that ground also. It is true, as pointed out by this Court in Nauranglall v. Basant Kumari (AIR 1981 Sikkim 22), the plaintiff-respondent, having obtained a decree of eviction in his favour, could have, under the provisions of O.41, R.22, Civil Procedure Code, sought to support the decree, even without preferring any cross-objection, also an the ground of such additions and alterations having been made by the tenant, even though the learned Judge has not decreed the suit on that ground. But as the learned counsel for the respondent has not seriously pressed the issue in view of insufficient evidence therefore, this aspect need not detain me. 4. As to the damages caused to the suit premises by the tenant-appellant, the plaintiff's own statement as P.W.4 is only to the effect that "the condition of the suit premises is hopeless at present, several cracks have developed on the floor and the walls, smokes have gathered all round the corner, all the rooms have become dark and wall paints have fallen down and water is leaking from the ceiling". Section 12 of the Rent Control and Eviction Act provides that "no tenant shall....damage the structure in any way, without the approval in writing of the landlord, failing which the landlord shall have the right to evict such tenant". It is, therefore, not the damaged condition of the premises, but the damages caused thereto by the tenant, which would justify a decree of eviction under that section. I would discuss and point out hereinafter as to whether the report of the inspection made by the learned trial Judge can be taken into consideration and, if so, to what extent. But even if the same is taken into consideration for the present, all that the report shows is that the premises are in a very bad condition with cracking walls and floor and leaking ceiling and all that. But there is no satisfactory evidence on record to show that all these were caused by or due to the defendant-tenant to attract the mischief of the provisions of Sec.12 commanding the tenant not "to damage the structure" on pain of ejectment. And before it can be inferred that the defendant being in occupation of the premises and carrying on his hotel business there, all the damages on alleged were caused by him, there must be some evidence on record to show as to what was the condition of the premises immediately before the same was let out to the defendant, and I have not been able to find, nor Mr. Sharma for the landlord-respondent could point out, any such evidence on record. It is true that under Section 4 of the Rent Control and Eviction Act, if the tenanted premises are proved to be in such a condition as to require "thorough overhauling", the landlord may claim ejectment on that ground. Sharma for the landlord-respondent could point out, any such evidence on record. It is true that under Section 4 of the Rent Control and Eviction Act, if the tenanted premises are proved to be in such a condition as to require "thorough overhauling", the landlord may claim ejectment on that ground. But neither in the plaint, nor anywhere in the evidence, it is even suggested that the landlord had or has any intention to overhaul or rebuild the premises and was claiming recovery of possession thereof for such purpose. That apart, the suit premises being a portion of the fourth storey of a fivestoried building and surrounded the same floor by other premises let out to other tenants, which according to the plaintiff's own witness PW 3 "are in good condition'", it is difficult to understand how the suit premises only, being a portion of the fourth stories, with a fifth storey above and three stories below, can be thoroughly overhauled or rebuilt. This aspect also, therefore, need not detain me any further. 5. The only question, therefore, which remains for consideration in this Appeal is whether the learned Judge was right in decreeing ejectment on the ground of the landlord's bona fide requirement of the suit premises for his use and occupation and in attacking the decree passed on that ground, Mr. Kharga has made two-fold submissions. He has urged, firstly, that the learned Judge was wrong in making an inspection of the suit premises as well as the premises now occupied by the plaintiff as a tenant under another and that the decree stands vitiated as it was mainly, if not solely, based on such personal inspection. Mr. Kharga has, secondly, urged that even if such inspection has not vitiated the decree to the extent as to require his reversal, the inspection report, having very much exceeded the limits permissible under the law, must be excluded from consideration and that, when so excluded, the evidence on record cannot sustain the decree. Both the contentions of Mr. Kharga may conveniently be taken up together for discussion. 6. The plaintiff's case as to his bona fide requirement of the suit premises, as made out by him in the plaint and through the witnesses may briefly be stated. Both the contentions of Mr. Kharga may conveniently be taken up together for discussion. 6. The plaintiff's case as to his bona fide requirement of the suit premises, as made out by him in the plaint and through the witnesses may briefly be stated. The plaintiff resides in a premises as a tenant under another person and the latter has filed an ejectment suit against the plaintiff for the recovery of possession of that premises occupied by the plaintiff. Mr. Sharma has submitted that a decree has also now been passed in that suit against the plaintiff after the evidence in this Suit was closed and though Mr. Kharga has admitted that there is undisputed evidence on record about such a suit being filed against the plaintiff by his landlord, he has no instruction as to whether the said suit has already been decreed. Be that as it may, the case of the plaintiff is that the premises, wherein he resides with his wife and nine children and also carries on his hotel business, consist of one shop-room, a bed-room and a kitchen. The shop-room is divided in small cabins for serving food and wine to the customers and the kitchen-room is being used by his three servants as their bed-room and the remaining bedroom, which is used by eleven members of his family, is too inadequate and insufficient, so much so, that while the plaintiff and his wife sleep on the floor, some of the children sleep on the bed in that room while the others have got to use the tables in the cabins of the shop as their beds. These have not only been stated by the plaintiff figuring as PW 4, but have also been fully corroborated by PW 2, Ongchuk Lepcha, and also by PW 3, T.P. Dorjee, brother of the plaintiff. Even if the plaintiff and his brother, PW 3, are regarded not as independent but as interested witnesses, PW 2 Ongchuk Lepcha is a witness who appears to be independent as well as disinterested. Not only the statements of these witnesses have not in any way been shaken in cross-examination, but the defendant through his lawyer has not at all cross-examined any of these witnesses as to the residential accommodation available to the plaintiff and the statements of these witnesses on this point have stood absolutely unchallenged. Not only the statements of these witnesses have not in any way been shaken in cross-examination, but the defendant through his lawyer has not at all cross-examined any of these witnesses as to the residential accommodation available to the plaintiff and the statements of these witnesses on this point have stood absolutely unchallenged. Even the case of the plaintiff that the customers in his hotel, where wine is also served, talk and behave indecently in a drunken state and these are very likely to affect the morals of his young children, and that seven of those children are school-students but have no place available to attend to their studies, could not be challenged by the defendant in cross-examination. There are clear and ample authorities for the proposition that if the opponent, in spite of all reasonable opportunities to do so, does not cross-examine the witnesses of his adversary on a point deposed to by them with appreciable consistency, it would follow that he has accepted the position that their evidence on the point cannot be disputed at all. The decision of the House of Lords in Browne v. Dunn (1893-6 R 67) to this effect has been accepted by the Courts in India as the guiding authority as would appear from, among others, the Calcutta decisions in Carapiet A.E.G. v. A.Y. Derderian, (AIR 1961 Cal 359 at P. 362) and in Babulall Chowkhani v. Caltex Ltd. (AIR 1967 Cal 205 at p. 215) and the Punjab decision in Chuni Lal v. Hartford Fire Insurance (AIR 1958 Punjab 440 at p. 444). Such consistent evidence adduced by one party and not challenged in cross examination by the other party is to be accepted, unless the same is inherently improbable or otherwise shown to be unreliable. For all that I see, I do not see any such inherent improbability or any thing to suggest its unreliability. The averment of the plaintiff that save and except the suit building, which has been gifted to him by his father to meet his need for accommodation, he has no other house or building, has stood absolutely unrebutted. In his written statement, in para. The averment of the plaintiff that save and except the suit building, which has been gifted to him by his father to meet his need for accommodation, he has no other house or building, has stood absolutely unrebutted. In his written statement, in para. 7, the defendant-appellant no doubt alleged that "the plaintiff's father has a number of new buildings which have been constructed or are in the process of construction and which is owned by the family including the plaintiff, his father and his brother and the family have sufficient accommodation at their disposal and the plaintiff is not in dire need of the suit premises". Under the law governing the suit, requirement of the landlord to justify a decree of eviction against a tenant need not be "dire", but a bona fide and reasonable requirement is all that is necessary to warrant a decree of ejectment. But that apart, at the trial, the defendant did not make any attempt whatsoever to prove his assertion that a number of new buildings have been or are being constructed by the plaintiff's father which are the properties of the joint family including the plaintiff and his father and brothers, even though documents from the Gangtok Municipal Corporation would have been sufficient to prove the same. In his deposition at the trial, the defendant, however, stated that "it is not true that the plaintiff is facing accommodation problem because he has constructed one doublestoried house just behind his Central Hotel where he is staying at present". Apart from the fact that there is no such averment anywhere in the written statement and that, the defendant having examined none but himself, there is no other witness to corroborate the same, the plaintiff in his cross-examination has categorically denied the existence of any such structure and PW 3 has explained that what was constructed by the plaintiff at the back of the premises occupied by the plaintiff as a tenant, is "a godown measuring about 15 ft. X 20 ft. which is being used by the plaintiff for storing firewood, char-coal and other articles." 7. X 20 ft. which is being used by the plaintiff for storing firewood, char-coal and other articles." 7. This being the nature of the evidence on record, I have no doubt that when the plaintiff with his wife and nine children are being dumped in one bedroom only and that too by the side of a room where food and wine are served to customers with the likelihood of drunken brawls and other indecent occurrences likely to adversely affect the small children, and seven of the children, who are school going, have and could have no place for attending to their studies and that, over and above all, when the plaintiff himself is facing a Suit for his ejectment from his residence by his landlord, the requirement of the plaintiff cannot but be held to be bona fide and reasonable. If these do not constitute such requirement, I wonder what else would. That being so, on the evidence of record, the learned trial Judge could have and, in my view, ought to have decreed the claim for ejectment without making the unnecessary exercise of a local inspection and that too by himself. 8. The power of a Judge to inspect any property or thing concerning which any question may arise in a suit before him is undisputed in view of the clear provisions to that effect in O.18 R.18 of the Code of Civil Procedure. But existence of the power is one thing, and the exercise thereof is entirely a different matter. A warning was sounded by the Privy Council as early as in 1907 in Kessowji Issur v. Great India Peninsula Railway (1907 ILR 31 Bom 382 at p. 392) to the effect that if a suit is decided not on the testimony given at the trial, but by the Judge's observations, it would be impossible to admit the legitimacy of such procedure or the soundness of such conclusions. As pointed out by the Supreme Court also in Ugam Singh v. Keshrimal, (AIR 1971 SC 2540 at p. 2546), a judgment based solely on the result of personal inspection by the Judge is obviously bad, but such inspection made for the purpose of understanding the evidence on record is not only permitted under O.18 R.18, Code of Civil Procedure but is sometimes necessary for doing proper justice. To the same effect were the provisions of S.539B of the Code of Criminal Procedure, 1898 and S.310 of the new Code of Criminal Procedure, 1973 contains similar provisions. Strangely enough, though S.539B of the Criminal Procedure Code, 1898 was inserted in 1923, expressly requiring such inspection by the Judge or the Magistrate to be "for the purpose of properly appreciating the evidence," O.18 R.18 of the Code of Civil Procedure, even after its amendment in 1976, does not expressly limit the scope of such inspection to any such purpose. But though the lex scripta of R.18 appears to give carte blanche to the Judge, judicial dicta have nevertheless circumscribed the apparent wide amplitude of the Rule to the purpose of appreciating or understanding the evidence on record. As is well-said, a Judge in deciding a matter is not only to use his ears in listening to the statements made by the witnesses, he is also entitled to use his eyes to see things for himself. It is true that the result of the inspection made by the Judge is not "evidence", as that expression is defined in S.3 of the Evidence Act, as according to that definition only statements permitted or required to be made by witnesses in Court and documents produced for the inspection of the Court are to be treated as evidence and inspection by the Judge or the record thereof does not come within the purview of that definition. But the definitions of the terms "Proved" and "Disproved" in the same section make it clear that in deciding as to whether a fact in issue has been proved or disproved, the Court is to consider all "the matters before it" and such matters are not to be confined to "evidence" stricto sensu. For otherwise, a Court cannot for example, take into consideration the demenour of witnesses or compare disputed signatures or writings under Section 73. Reference in this connection may be made to the observations made by a Division Bench of Calcutta High Court in Alia Rai v. Jhingur Tewari (1912-13 Cri LJ 156 at p. 157). The inspection by the Judge and the record thereof, are very much matters before the Court which may be taken into consideration in deciding whether a fact in issue has been "proved" or "disproved". The inspection by the Judge and the record thereof, are very much matters before the Court which may be taken into consideration in deciding whether a fact in issue has been "proved" or "disproved". But the fact remains that once the trying Judge makes an inspection of certain state of things, but the evidence of witnesses before him appears to be otherwise, than what he found on inspection, it would be almost a psychological impossibility for him to disbelieve his own inspection and to rely on any evidence on record to the contrary. In such a case, it cannot be naturally expected that the judge would believe the statement of the witnesses and would disbelieve, so to say, his own inspection. But one of the most cherished and important principles of natural justice and fair play is that no party to any cause should be affected unless in respect of any matter relied on against him, he has been given reasonable opportunity to test the reliability thereof or to demonstrate its unrealiability by cross-examination and/or by leading evidence in rebuttal. As was observed by Chatterjee, J., in Babbon Shaikh v. Emperor (1910-11 Cri LJ 121 at p. 127), on a difference of opinion between Stephen and Woodroffe, JJ., "it is on this account that many Judges refuse to make any local inspection." It may be noted that the decision in Babbon Shaikh (supra) was rendered in 1909, before S.539B was introduced in the Criminal Procedure Code in 1923, expressly authorising Judges and Magistrate to visit and inspect places or things for purpose of properly appreciating the evidence. As at present, the statutory provisions of both the Codes of Civil and Criminal Procedure authorise such local inspection by the Judge and it is also true that in some cases such an inspection is not only convenient but also may be necessary for the ends of justice to have proper understanding of the evidence on record. It is true that we have it from the highest authority that the statutory provisions may throw over-board all principles of natural justice, which can only supplement, but cannot supplant, the statutory law. But unless so over-thrown, the statutory provisions, which do not demonstrate their incompatibility with the principles of natural justice, ought to be construed, wherever possible, in consonance with those principles. But unless so over-thrown, the statutory provisions, which do not demonstrate their incompatibility with the principles of natural justice, ought to be construed, wherever possible, in consonance with those principles. To my mind, the provisions of Order 18 R.18 of the Civil Procedure Code or their counterparts in the Code of Criminal Procedure, can be harmoniously construed with the principles of natural justice commanding not to rely on any matter without affording the party affected or likely to be affected reasonable opportunities to meet the same. Thus construed, such a local inspection has got to be confined to nothing but to a view of the local features and the record thereof should be a record only of the conditions and other factual features of the place or the thing inspected, and in no case, the Judge should take the role of an investigator or an inquiring officer putting questions and receiving answers from the parties or the persons present at the place of inspection. In no case a judgment can legally be founded, solely or even mainly, on such inspection because in that the Judge becomes some sort of a witness, but with the extraordinary privilege of not being subjected to examination or cross-examination by the parties. A Judge does not incur any disability for, or does not in any way become disqualified from, proceeding with the trial because he himself has made a local inspection. S.566 of the Code of Criminal Procedure, 1898 and also its successor S.479 of the Code of Criminal Procedure, 1973, while incorporating the principles of natural justice enshrined in the maxim "nemo debt esse judex in causa propria sua" and disentitling a Judge from trying a case in which he is a party or is personally interested, has nevertheless clarified in the Explanation attached thereto that a Judge shall not be deemed to a party to or to be personally interested in any proceeding by reason only that he has made an inspection of any place or thing concerning the dispute to be tried by him. But in order to remain outside the mischief of any such disqualification he must confine his inspection only to the viewing of the place. 9. But in order to remain outside the mischief of any such disqualification he must confine his inspection only to the viewing of the place. 9. But even if a Judge has properly exercised his power of inspection only for the purpose of appreciating the evidence on record, he must make the report thereof available to the parties for such comments, explanations and arguments that they might choose to offer and his failure to do so would disentitle him from making any use of his inspection and its report. But the trial Judge in this case at hand made his inspection, as would appear from his order dated 31-8-82, after the parties closed their arguments and the learned Judge after making the inspection and preparing the report, straightway proceeded to fix the date for Judgment. This, I am afraid, is contrary to all recognised principles of justice and warrants exclusion of the report from consideration. 10. The report of the inspection as quoted and relied on by the trial Judge himself has recorded at several places as to what the Judge was told by the plaintiff, the defendant and others during the inspection, as would appear from the expressions "I was told by the plaintiff", "according to the plaintiff", "I was told by the defendant", they were complaining to me", occurring in the report in a number of places and the report also shows that the learned Judge not only viewed the premises but also formed his views about some of the important matters in dispute and as would further appear from paragraph 16 of the Judgment under appeal, he has made his inspection and his views thereon the basis of his Judgment. The learned Judge has thereby exceeded the limits allowed under the law to which an inspection can extend and the report thereof can be used. It is true that in State of Sikkim v. Pemba Sherpa (1981 Cri LJ 856 at p. 865), this Court pointed out that the role of a Judge is not that of a mere referee or an umpire only to answer the question "how is that?" or of a mere Judge in a combat of boxers or wrestlers or in a music competition only to declare who has performed the best and for whom the battle is lost or won. This Court observed that if the Judge feels that certain evidence is available or can reasonably be made available and the same would help in arriving at a just decision of the case, whether in favour of one party or the other, he is not to fold his hand simply because the parties or any of them did not take reasonable steps to bring such evidence on record and in such a case it would be proper discharge of his duty to take all steps available under the law to bring such evidence on record. It is really this duty under which the Court may examine any person as a Court witness, order production of documents or things, put any question to any witness in any form about any fact, whether relevant or irrelevant, as provided in S.165, Evidence Act. It is gratifying to note that in a later decision of the Supreme Court in Ram Chandra v. State of Haryana (AIR 1981 SC 1036) Chinnappa Reddy, J., has also observed that "the adversary system of trial being what it is, there is an unfortunate tendency for a Judge to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence" and that if a Court is to be an effective instrument in dispensing justice, "the presiding Judge must cease to be a spectator and a mere recording machine" but "must become a participant in the trial by evincing intelligent and active interest." But this a Judge can and should do only in a manner in accordance with, and not in derogation from, the provisions of law. As already indicated, the manner in which the learned trial Judge made the inspection and the report and utilised the same in founding his judgment was not in accordance with the provisions of law and the principles of natural justice. 11. But even though the report warrants exclusion from consideration and is accordingly excluded, the evidence on record, without any aid or assurance from the report, is, as already pointed out hereinbefore, sufficient to justify a decree for ejectment. 11. But even though the report warrants exclusion from consideration and is accordingly excluded, the evidence on record, without any aid or assurance from the report, is, as already pointed out hereinbefore, sufficient to justify a decree for ejectment. According to S.99 of the Code of Civil Procedure, no decree is to be reversed on otherwise varied for any error, defect or irregularity not affecting the merits of the case or the jurisdiction of the Court and under S.167 of the Evidence Act, improper admission of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it appears that independently of such improperly admitted evidence, there is sufficient evidence to justify the decision. 12. The appeal is, therefore, dismissed and the decree passed by the learned Judge stands confirmed. The appellant/defendant, however, is granted 4 months' time from this date to vacate the possession of the suit premises, failing which the decree-holder/respondent shall be at liberty to recover the possession by execution. The parties to bear their respective costs.