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2002 DIGILAW 721 (CAL)

NATIONAL RUBBER WORKS v. DAISY MANTOSH

2002-12-11

ARUN KUMAR MITRA

body2002
ARUN KUMAR MITRA, J. ( 1 ) THIS appeal has been preferred challenging the order bf remand dated 6th August, 2001 passed by the learned Additional district Judge, Sixth Court at Alipore in Title Appeal No. 134/2001 setting aside the judgment dated 28th March, 2001 and decree dated 7th April. 2001 passed by the learned Civil Judge, Senior Division. Sealdah Court. ( 2 ) THE respondent herein being the plaintiff filed a suit for ejectment and mesne profit against the appellant. The case in abort as made out by the plaintiff in the plaint is inter alia as follows: the defendant (appellant herein) entered into possession of the suit premises which is a twin Nissan Shed with adjacent land measuring about 28 cottahs in total being premises No. 21/1. Canal Circular Road, calcutta-54. The defendant was inducted by J. Mantosh (now deceased)as tenant at a monthly rental of Rs. 750/- payable according to English calendar, J. Mantosh was one of the owners of the said premises along with the plaintiff Daisy Mantosh. The plaintiff is the executor of the last will and testament of J. Mantosh (now deceased) The defendant is a defaulter in respect of payment of rent of the suit premises since October, 1988 to April, 1995. Mr. Charls Mantosh is one of the beneficiaries of the last Will and testament of late J Mantosh and is running business of manufacturing air-condition machines in the small scale sector on a small scale at Premises No. 302/1, A. P. C. Road, Calcutta-9. The said shed has an area of about 1000 sq. ft. Mr. Charls Mantosh requires to expand his business and he requires 7000 sq. ft. . to run his factory in a commercially viable manner. The plaintiff as such reasonably requires the suit premises for use and occupation and the plaintiff is not in possession of any other reasonably suitable accommodation. ( 3 ) THE defendant has done and is doing acts in violation of the provisions of clauses (rn), (o) and (p) of Section 108 of Transfer of Property act. The notice dated March 9, 1995 was served under Section 13{g) of the West Bengal Premises Tenancy Act and Section 106 of the Transfer of Property Act. ( 3 ) THE defendant has done and is doing acts in violation of the provisions of clauses (rn), (o) and (p) of Section 108 of Transfer of Property act. The notice dated March 9, 1995 was served under Section 13{g) of the West Bengal Premises Tenancy Act and Section 106 of the Transfer of Property Act. ( 4 ) THE defendant contested the suit by filing written statement The case as made out by the defendant in the written statement is to the extent inter alia that the plaintiff let out vacant land measuring more or less 28 cottahs severally from time to time and allowed the defendant to construct structure thereon for running business and the tenancy commenced in the year 1950. The defendant was also a tenant in respect of Tin Shed and for the vacant land and shed single bill used to be granted @ Rs. 750/- consolidated. The plaintiff settled rent of 28 cottahs to the defendant as that, of tenant in respect of land which comes within the mischief of Calcutta Thika Tenancy Act, 1950 and subsequent amendments made thereto. The plaintiffs predecessor filed Title Suit No. 722/1954 in the First Court of Munsif, Sealdah. The said suit was ultimately compromised in appeal. Therefore, it is not proved that the defendant's tenancy as a whole is governed under, West Bengal Premises Tenancy Act, 1956. The defendant is not bound to pay the monthly, rent in respect of the tenancy of land where construction have been made by the defendant. The amalgamation of both the tenancy is not maintainable and claiming of rent in respect of open land is therefore barred. The defendant filed applications raising dispute under Sections 17 and 17 (A) and (B) of the West bengal Premises Tenancy Act, 1956. The defendant in the written statement denied that Charls Maniosh is beneficiary of the Will or he is carrying on any business at Premises No. 302/1, A. P. C. Road, Calcutta-9. The defendant also denied that he requires accommodation of 7000 sq ft. of space. The defendant in the written statement also stated that said Charls Mantosh has got several landed properties in Calcutta which the plaintiff has suppressed. The defendant further denied the allegation of violation of clauses (m), (o) and (p) of Section 108 of the T. P. Act. The defendant also denied that he requires accommodation of 7000 sq ft. of space. The defendant in the written statement also stated that said Charls Mantosh has got several landed properties in Calcutta which the plaintiff has suppressed. The defendant further denied the allegation of violation of clauses (m), (o) and (p) of Section 108 of the T. P. Act. The defendant further denied service of notice under Section 13 (6) of the West Bengal Premises tenancy Act. ( 5 ) TEN issues were framed by the learned trial Judge and ultimately the learned trial Judge dismissed the suit on contest against the defendant but without costs ( 6 ) CHALLENGING the said judgment and decree passed by the learned trial Judge the plaintiff being the appellant preferred Title Appeal No. 134/ 2001. After hearing, the learned appellate court below allowed the appeal and dismissed the petition under Order 41 Rule 26 and Order 39 Rule 7 ex parte. The appellate court below sent the matter back on remand for appointing a local inspection commission within 15 days from the date of the order and directed the learned trial court to issue direction on the local inspection commissioner to submit a report within one month from the date of appointment The appellate court below also directed that after the report is received the trial court will give opportunity to the parties to adduce further evidence if any, and will pass a judgment thereafter according to law. ( 7 ) IT is relevant to note in this context that in the lower appellate court the appellant filed two applications, one is under Order 41 Rule 26 of the code of Civil Procedure and the other is under Order 39 Rule 7 of the Code. ( 8 ) THE trial court dismissed the suit and the lower appellate court set aside the judgment and decree passed by the learned trial Judge. In no uncertain terms, the appellate court below observed: "let the judgment of the trial -court be set aside. " ( 9 ) NOW in consequence what the appellate court below did was that the appellate court below sent back the matter on remand: (i) for appointing a local inspection commissioner and (n) to give the parties opportunity to adduce further evidence, if any, afir-r the local inspection being made and (iii) to pass a judgment according to the law. ( 10 ) THE learned counsel for the appellant concentrates the points on attack of the judgment of the appellate court below and submits that the learned appellate court below committed wrong in sending the matter back on remand. The lower appellate court itself should have considered the application under Order 41 Rule 26 filed by the appellant as well as the applicant under Order 39 Rule 7 of the Code of Civil Procedure. According to the learned counsel for the appellant the appellate court below has ample power to take additional evidence if it so requires. The learned counsel also submits that the appellate court below failed to consider the provisions of Order 41 Rule 27 (i) (b) of the Code of Civil Procedure. He further submits that the learned appellate court below did not consider the evidence of the plaintiffs witnesses specially the evidence of PW-1 charles Mantosh who admittedly confessed that they did not file any application for commission either regarding Premises No. 302/1, A. P. C. Road or premises No. 71/1. Canal Circular Road to see the accommodation available to the appellant plaintiffs and the accommodation occupied by the tenant in the suit property. In support of his contention the learned counsel for the appellant relies on the decision reported in AIR 1951 SC 1 (Kamala Ranjan Roy vs. Baynath Bajoria) and submits that the learned appellate court below ought not to have allowed the defendant to adduce further evidence. He relies on paragraph 12 of the said decision which runs as under: the third objection is that the appeal court should not have allowed the plaintiff to adduce further evidence. It will be recalled that, the appeal court directed the evidence of the Maharaja of Cossimbazar. to be taken during the hearing of the appeal. The judgment of the appeal court clearly indicates that it was the. appeal court that required the evidence in order to clear up the matter and for the purpose of enabling it to come to a proper decision on this point. The matter, therefore, is fully covered by Order 41. Rule 27, Civil procedure Code and no objection can be taken to the course adopted by the appeal court on that ground. We do not think there is any reason to interfere in the exercise of the court's discretion. The matter, therefore, is fully covered by Order 41. Rule 27, Civil procedure Code and no objection can be taken to the course adopted by the appeal court on that ground. We do not think there is any reason to interfere in the exercise of the court's discretion. " ( 11 ) THE learned counsel for the appellant relied on an another decision of one learned single Judge of Allahabad High Court reported in AIR 1975 allahabad 406 (Gajraj and Ors. vs. Ramadhar and Ors. }, the learned counsel for the appellant relies on paragraphs 4 and 5 of this decision which runs as follows:"having considered the matter I feel that Sri Chaudhury is right in his contention that there was no occasion for a remand of the suit under Order 41, Rule 23 Civil Procedure Code. It is well known that a remand of the entire suit under the said provision should be an exception and should be taken recourse to only as a last resort. In the normal course the court should decide the case on the basis of the record in existence. However, the appellate courts have been given power to entertain additional evidence, if necessary, or to remit an issue for enquiry and report to the trial court under Order 41. Rule 25, Civil Procedure Code. There is a long catena of case laws which has laid down that the provision of remand is not to enable the parties to have a second innings with a view to fill up the lacuna in the pleadings or evidence. I do not propose to refer to these cases as the law is well understood in this respect. The lower appellate court in the instant case felt that without a clear demarcation of the land in dispute, it was not possible to give any finding on the question of title or ownership of the disputed land and, therefore, the suit was remanded to the trial court with a direction that the trial court should issue a fresh survey commission for the demarcation of the disputed land and for ascertaining the number of the plot in which it fell. In my view, for that limited purpose, it was not necessary to remand the entire suit under Order 41, Rule 23, Civil Procedure code. In my view, for that limited purpose, it was not necessary to remand the entire suit under Order 41, Rule 23, Civil Procedure code. The said purpose could be well achieved by the issuance of such a commission by the lower appellate court itself. I do not agree with Sri Chaudhary that the issuance of such a commission can only be done by way of the reception of additional evidence under order 41, Rule 27, Civil Procedure Code. In my view that provision will not be applicable to a case where the court itself desires a local inspection of the spot to be made and in such a situation the court can act under Order 26, Rule 9, Civil Procedure Code. It cannot be denied that an appellate court has the power to issue a commission for local inspection in the same manner in which a trial court can act under Order 26. Rule 9, Civil Procedure Code. They follows front section 107, Civil Procedure Code and if any authority be needed then a reference can be made to Ram Dihal Lal vs. Lakhpal Ltd, (AIR 1932 All 270 ). In my view 1971 All LJ 244 (supra) does not support the contention raised by Sri Chaudhary. it was observed there as under : 'issue of a commission is something which is quite different from production of a document or examination of a witness. Provisions regarding issue of a commission are to be found in Order 26 of the Code. Rule 9 of Order 12and provides that in any suit in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the court. In my view, therefore, the issuance of a commission for local investigation by the lower appellate court will not necessitate a recourse to the provisions of Order 41, Rule 27, Civil Procedure Code. I agree with the lower appellate court that in the facts and circumstances of the case it was desirable in the interest of justice that there should be a local investigation of the land in dispute with a view to ascertain its exact location and then to decide the controversy between the parties. I agree with the lower appellate court that in the facts and circumstances of the case it was desirable in the interest of justice that there should be a local investigation of the land in dispute with a view to ascertain its exact location and then to decide the controversy between the parties. " ( 12 ) RELYING on this case he submits that there was no necessity on the part of the appellate court below to send the matter on remand. The learned counsel submits that as would be apparent from the above quoted decision that in such circumstances the learned appellate court should not send the entire suit on remand and on the contrary, the appellate court should arrange for local inspection/commission itself. ( 13 ) THE learned counsel relies on the decision of the Apex Court reported in AIR 1979 SG 553 (Syed Abdul Khader vs. Rami Reddy and Ors. ). According to the learned counsel the ratio of this decision is that if the court thinks that no useful purpose will be served by sending the matter back on remand the appellate court below itself should have taken additional evidence and more so. if the court thinks that any document will be required to enable the court to pronounce judgment it has the jurisdiction to permit additional evidence to be produced. Reliance has been placed by the learned counsel on paragraph 21 of this Apex ourts decision which runs as under :"it was next contended that the High Court was in error in granting c. M. P. 2762/61 permitting the hens of defendants 8, 9 and 1] to produce the sale deeds which they did not produce in the (rial court and after relying on the same reversing the decree of the trial court. The High Court has given cogent reasons for granting C. M. P. 2762/ 61, Order 41, Rule 27, Civil Procedure Code enables the appellate court to admit additional evidence in the circumstances or situation therein mentioned, one such being where the appellate requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause. By a catena of decisions of this court, it is well established that order 41, Rule 27, Civil Procedure Code does not confer a right on the parly to produce additional evidence. By a catena of decisions of this court, it is well established that order 41, Rule 27, Civil Procedure Code does not confer a right on the parly to produce additional evidence. But if the court hearing the action requires any document so as to enable it to pronounce judgment, it has the jurisdiction to permit additional evidence to be produced. The High Court has given cogent reasons why it felt impelled to permit production of registered sale deeds so as to enable it to pronounce judgment in the matter. If the High Court considered the production of registered safe deeds essential so as to enable it to pronounce Judgment, there is no reason why we should interfere with the discretionary power properly exercised by the High court in the interest of justice. Even otherwise, the High Court was Justified in permitting additional evidence to be produced when it consisted of registered sale deeds. Such additional evidence has to be read as part of the record. Once these registered sate deeds are taken into consideration, a part of the decree of the trial court granted in favour of the plaintiff awarding him possession of the land on- the only ground that the sale deeds in respect of those pieces of lands were not produced, could not be maintained and the high Court rightly allowed the appeal of original defendant Nos. 8, 9 and 11 and no exception can be taken to it. " ( 14 ) NOW the learned counsel for the appellant places reliance on the decision of the Hon'ble Division Bench of this court reported in AIR 1966 calcutta 403 (Hindustan Petroleum Corporation Ltd. vs. R. P. Agarwalla and brothers Put. Ltd. ). The learned counsel submits that in this case also the Hon'ble Division Bench observed that if it requires that to pronounce judgment and not only for the same but for any other substantial form any additional evidence is required the appellate court under Rule 21 (1)of the Code of Civil Procedure has the power to take such evidence. The learned counsel strongly relied on the paragraph 25 of this decision which is quoted herein below :"before recording the replies of Mr. Mallik and our findings, we must also keep it on record, that an application dt. 27th July, 1985, for taking into consideration two letters dt. 25th August 1979 and 27th nov. The learned counsel strongly relied on the paragraph 25 of this decision which is quoted herein below :"before recording the replies of Mr. Mallik and our findings, we must also keep it on record, that an application dt. 27th July, 1985, for taking into consideration two letters dt. 25th August 1979 and 27th nov. 1979, as additional evidence in this Appeal, under Order 41 rule 27 of the Civil Procedure Code was filed by the plaintiff/ respondents, for the purpose of showing that before the expiry of the concerned lease, there was correspondence between them and the Ministry of Petroleum, Chemicals and Fertilizers. Government of India and Hindustan Petroleum Corporation Ltd. , regarding their tenancies in Lansdowne Court and in fact the correspondence as sought to be disclosed now, would prove the intention of the plaintiff/ respondents, to have an increased rental for the said flat and such evidence in respect of rent as suggested, was accepted by or on behalf of defendant/appellants. It was further pointed out that the letters as disclosed now, were really disclosed and marked Exhibits without objection in T. S. No, 60 of 1980. in the court of the learned subordinate Judge, Fourth Court, Alipore. The letters as indicated now were said to have been misplaced or could not be traced out during the course of hearing of T. S. No. 33 of 1980, from the determinations whereof, this appeal has been preferred. It was also claimed that in view of the undisputed position in respect of the said two letters as mentioned in the application and so also the circumstances as disclosed, those two letters should now be allowed to be produced and also to be allowed to be used by the plaintiff/ respondents in support of their case and claim of waiver against the defendant/appellants. Affidavits were exchanged on the application and the defendant/appellants, in their affidavit-in-opposition dt. 16th August, 1985. claimed the said application to be not bona fide and pointed out that I have same the plaintiff/ respondents are trying to have some lacuna in the proceeding rectified and that being the positior. Affidavits were exchanged on the application and the defendant/appellants, in their affidavit-in-opposition dt. 16th August, 1985. claimed the said application to be not bona fide and pointed out that I have same the plaintiff/ respondents are trying to have some lacuna in the proceeding rectified and that being the positior. , they claimed that the application must not be entertained, it is as also claimed that the plantiff/respondents, not having filed the letters in question at the appropriate time of the hearing of T. S. No. 33 of 1980, although they had such opportunity, should not be allowed to file them now and at thus stage of the appeal and that, too when, the original letters have not, been filed along with the application. It was also stated that letters as sought to be disclosed now, would not be required to enable this court to pronounce its judgment. Apart form the above, the application in question was claimed to be a belated one. To substantiate his submissions on the Power of the appellate court to admit additional evidence, Mr. Dasgupta made a reference to the case of K. Venkataramiah. vs. A. Seetharama Reddy, AIR 1963 SC 1526 , where, it has been laid down that under Rule 27 (1), the appellate court has the power to allow additional evidence not only if it requires such evidence to enable it to pronounce judgment, but also for any other substantial cause. There may well be cases where , even though the court finds that it is able to pronounce judgment on the state of record as It is, and so it cannot strictly say that ft requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for any other substantial cause under Rule 27 (1) (b) of the Code apart from observing that such requirement of the court Is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. Such a case will be one for allowing additional evidence for any other substantial cause under Rule 27 (1) (b) of the Code apart from observing that such requirement of the court Is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. It may well be that the defects may be pointed out by a party, or that a party may move the court to supply the defect, but the requirement must be the requirement of the court upon its appreciation of the evidence, as it stands. " ( 15 ) LASTLY on the same score, the learned counsel places reliance on the decision of the Hon"ble Division Bench of this court reported in AIR 1993 A. P. 8 (Land Acquisition Officer and Sub-Collector. Vijayawada and etc. vs. Chigurupati Uma Maheswara Rao and Ors. ). According to the learned counsel for the appellant this decision also empowers the appellate court to adduce additional evidence. ( 16 ) THE learned counsel for the appellant submits that in the above view of the matter that if no application for commission was tendered before the learned trial Judge there is no bar in filing the same before the Lower appellate Court and. on the other hand, there is sample power of the appellate court below to take evidence and in this case, the learned appellate court below therefore wrongly remanded the matter to the trial court. ( 17 ) THE learned counsel for the respondent submits that as alleged by the learned counsel for tile appellant the court should not give chance to the plaintiff to fill up the lacuna. It is the duty of the plaintiff to prove his case as pleaded in the plaint itself and the learned counsel for the appellant misconstrued the ratio of the provisions of Order 41 Rule 27 (1) (b) of the civil Procedure Code. The learned counsel for the defendant submits that it is not the duty of the appellate court to find out lacunas and to allow the plaintiff to fill UP those lacunas. The learned counsel for the defendant submits that it is not the duty of the appellate court to find out lacunas and to allow the plaintiff to fill UP those lacunas. The learned counsel for the respondent then attacked the application filed in the appellate court below under order 41 Rule 26 and under Order 39, Rule 7 of the Civil Procedure Code and submitted that one should not forget the basic ingredients of Order 41 of Rule 27 of the Civil Procedure Code and any person to avail the opportunity of the provisions of the said suction must fulfil the criteria of that provision. Here the ground shown in the application under Order 41 Rule 26 itself shows thai this application is not entertainable at all inasmuch as whether commission work will be done or not is the necessity or discretion of the plaintiff to prove his case and it cannot be the necessity of the court for delivering judgment. The learned counsel for the respondent in this regard submits that the judgment of the appellate court below is bad insofar as it sends the matter on remand and the appellate court below should not exercise any power to adduce additional evidence here in this court and ought to have upheld the judgment and decree of Trial Court. The learned counsel for the respondent In support of his contentions relies on the decision reported in 50 CWN 2 (Chaturbhuj Singh and Ors. us. Gobind Prashad singh and Ors.) which observes :"where there is nothing to suggest that an appellate court requires the additional evidence to decide the case properly, and the party could have put it in the evidence in the trial court, no case arose for admission of the evidence in appeal under Order 41 Rule 27 (1) (b) of the Code of Civil Procedure. " ( 18 ) THE learned counsel for the respondent then relied on the decision reported in AIR 1951 SC 1 93 (Aryan Singh vs. Katar Singh and Ors.), The learned counsel puts stress on paragraphs 7 and 8 of this derision winch runs as under:"it was strenuously argued by the learned counsel for the applicant that it was not open to the H. C. to interfere with the discretion exercised by the Dist. Judge in allowing additional evidence to be adduced and that even assuming that there was an erroneous finding of fact, it must stand final as a second appeal can be entertained only on the specific grounds mentioned in Section 1000, civil Procedure Code. There is, however, a fallacy underlying this argument. The discretion to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in Order 41, Rule 27, Civil Procedure Code. If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored under the case decided as it was non-existent, under Order 41, Rule 27, it is the appellate court that must require the evidence to enable it to pronounce judgment. As laid down by the P. C. in the well-known case of Kessowji vs. G. I. P. Railway, 34 I. A. 115 : 31 Bom. 381 (P. C. ). The legitimate occasion for the application of the present rule is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the court of fresh evidence and the appln. is made to import it And they reiterated this view in stronger terms even in the later case of Parsotim vs. Lal Mohan, 58 I. A. 254 : AIR (18) 1931 P. C. 143. The true test, therefore, is whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. In the present case, there is nothing to show that there was any lacuna or 4ap which had to be filled up and that the appellate court felt the need for the omission being supplied so that it could pronounce a judgment to put it the other way round, it does not appear and it was not stated, that the Dist. Judge lelt himself unable to come to a decision without copies of the settlement registers that were sought to be put in before him for the first time. On the other hand, the Dist. Judge lelt himself unable to come to a decision without copies of the settlement registers that were sought to be put in before him for the first time. On the other hand, the Dist. Judge made up his mind to admit the certified copies of the kami beshi and muntakhib asami war registers even before he heard the appeal. The order allowing the applicant to call the additional evidence is dated 17. 3. 1942. The appeal was heard on 24. 4. 1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as It stood disclosed a lacuna which the court required to be filled up for pronouncing its judgment. In the circumstances, the learned Judges of the H. C. were right in holding that the. Dist. Judge was not justified in admitting this evidence under Order 41, Rule 27. " ( 19 ) THEN again, the learned counsel for the respondents relies on the decision of the Apex Court- reported in AIR 1957 SC 912 (State of U. P. vs. Manbodhan Lal ). The learned counsel placed the observations of the apex Court in this decision made in paragraph 3 which is as follows:"before dealing with the merits of the controversy raised in these appeals, it is necessary to state that Mr. Mathur appearing on behalf of the appellant, proposed to place before this court, at the time of the argument, the original records and. certain affidavits to show that, that as a matter of (act, all the relevant facts relating to consultation between the State Government and the Commission had not been placed before the High Court and that if the additional evidence were taken at this stage, he would satisfy this court that the Commission was consulted even after the submission of the respondent's explanation in answer to the second show cause notice. Without looking into the additional evidence proposed to be placed before us, we indicated that we would not permit additional evidence to be placed at this stage when there was sufficient opportunity for the State Government to place all the relevant matters before the High Court itself. We could not see any special reasons why additional evidence should be allowed to be adduced in this court. We could not see any special reasons why additional evidence should be allowed to be adduced in this court. It was not suggested that all that matter which was proposed to be placed before this court was not available to the State government during the time that the High Court considered the writ petitions on two occasions. It is well settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage, and to fill in gaps. Of course, the position is different where the appellate court itself requires certain evidence to be adduced in order to enable it to do justice between the parties. In this case, therefore, we have proceeded on the assumption that though the Commission was consulted as to the guilt or otherwise of the respondent and the action proposed to be taken against him after he had submitted his explanation in answer to the first show cause notice, there was no consultation with the Commission after the respondent had submitted his more elaborate explanation in answer to the second show cause notice. " ( 20 ) LASTLY, the learned counsel for the respondent when answering the allegation made on behalf of the learned counsel for the appellant that the appellate court below did not discuss all the issues in delivering judgment which is mandatory, relied on the decision reported in 2001 (2)scc 652 (Makhanlal Banged us. Manas Bhunia. and Ors. ). The Apex Court in paragraph 4 of this decision has observed:"it is net necessary to set out the pleadings, evidence and other details of the case in view of our having formed. an option that the judgment under appeal suffers from a serious lacuna going to the root of the matter and therefore deserves to be set aside, followed by a remand to the High Court with a direction to comply with the provisions of Section 99 of the RPA and thereafter, decide, the election petition afresh. The facts Insofar as necessary to demonstrate the need for remand are stated in brief hereinafter. " ( 21 ) HEARD the learned counsel for the parties considered the amounts made in the plaint the evidence on record and the judgment of both the courts below. The facts Insofar as necessary to demonstrate the need for remand are stated in brief hereinafter. " ( 21 ) HEARD the learned counsel for the parties considered the amounts made in the plaint the evidence on record and the judgment of both the courts below. This is simply a suit for eviction and the recovery of possession along with the prayer for mesne profit. The grounds made out in the plaints for eviction is (i) reasonable requirement lor own. use and occupation; (ii) default, (iii) violation of fm ). (o) and tp) clauses under section 108 of the Transfer of Property Act. ( 22 ) THE defendant, however, took some other points such as the suit property is a thika tenanted property and it does not come under the purview of West Bengal Premises Tenancy Act, due notice has not been served, landlord tenancy relationship has not been proved and basically there is no reasonable or bona fide requirement of the suit premises proved by the plaint. In such a suit, three points are mainly to be decided: (I) whether there is landlord tenancy relationship in between the plaintiff and defendant; (ii) whether the suit premises is reasonably required by the plaintiff; (iii) whether the plaintiff has alternative suitable accommodation elsewhere. ( 23 ) THE trial court in its judgment decided that it is not a thika tenanted property inasmuch the same issue has been decided in an earlier suit between the parties. On consideration of evidence the learned trial Judge rightly came to the decision that the plaintiff could not prove his reasonable requirement or he could not prove that he has no alternative suitable accommodation elsewhere. It has also been rightly observed by the learned trial Judge that violation of (m), (o) and (p) clauses could not also be proved. ( 24 ) NOW the next question remains adducing of additional evidence or direction to make a commission work the provisions of Order 41 Rule 27 need be quoted here which is as follows:"rule 27. Production of additional evidence in Appellate Court. (1) The parties to an appeal shall not be entitled to produce additional evidence, where oral or documentary, in the Appellate Court. Production of additional evidence in Appellate Court. (1) The parties to an appeal shall not be entitled to produce additional evidence, where oral or documentary, in the Appellate Court. But if (a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that not withstanding the exercise of due diligence such evidence was not within his knowledge or could not after the exercises due diligence, he produced by him at the time when the decree appealed against was passed, or (b) the appellate court requires, any document to be produced or any witness to he examined to enable it to pronounce judgment, or for any other substantial cause, the appellate court may allow such evidence or document to be produced or witness to be examined (2) Wherever additional evidence is allowed to be produced by an appellate court, the court shall record the reason lor its admission. " ( 25 ) THE ingredients of Order 41, Rule 27 of the Code of Civil Procedure has not been fulfilled in this case and naturally there cannot be any question of exercising power by the appellate court below in this regard. In my opinion, when the suit has been dismissed by the learned trial judge and when the appellate court below set aside the judgment and decree of the learned trial Judge, the appellate court below should not have sent the matter back on remand only for commission work and taking evidence therefore. ( 26 ) ON due consideration of the entire aspect, I respectfully disagree with the contentions made by the learned counsel for the appellant and 1 set aside the judgment/order of remand passed by the learned appellate court below and uphold the judgment and decree passed by the learned trial Judge in the original suit. The appeal is, therefore, dismissed. There will be no order as to costs. The decree may be drawn up accordingly. ( 27 ) APPELLANT prays for stay of operation of judgment and decree. Such prayer of stay is refused. ( 28 ) URGENT xerox certified copy of the Judgment if applied far, same be supplied expeditiously. Appeal dismissed.