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2012 DIGILAW 23 (CAL)

Prameshwar Prasad v. Mahanth Jha

2012-01-09

JAYANTA KUMAR BISWAS

body2012
JUDGMENT Jayanta Kumar Biswas, J. 1. The two plaintiffs in the Title Suit No. 179 of 1995 (renumbered as 12 of 2005) decreed by the 3rd Additional Civil Judge (Junior Division), Alipore, South 24-Parganas are the appellants in this First Miscellaneous Appeal that is against an order of the 2nd Additional District Judge, Alipore dated August 14, 2008 allowing the Title Appeal No. 150 of 2007 of the respondent against the decree of the Civil Judge and remanding the case. The Title Suit was filed seeking the tenant respondent's eviction from the suit premises on the grounds of reasonable requirement and default. The West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the Act) was applicable to the case. The respondent filed an application under sub-sections (2) and (2A) of section 17 of the Act. By an order dated December 12, 2001 the application was disposed of. He was found to be in arrears with rent from December, 1983 to November, 2001. 2. The Court allowed the respondent's prayer to pay the determined rent arrears in 50(fifty) monthly instalments. He did not pay according to the order. The appellants applied under section 17(3) of the Act for striking out defence against delivery of possession. The respondent filed a section 151 application dated May 16, 2002 for condonation of the default. By an order dated January 18, 2005 the Court condoned the default, and by an order dated January 30, 2006 it rejected the section 17(3) application as not pressed. 3. Evidence (examination-in-chief) by affidavit of the second plaintiff was furnished on April 26, 2006. He deposed (q. 16) that the respondent did not comply with the order dated December 12, 2001. He was not cross-examined to extend his this testimony. Only a suggestion was given that the respondent was not a defaulter, which he denied. Evidence (examination-in-chief) by affidavit of the respondent was furnished on December 11, 2006. 4. The Trial Court found that the challans produced by the respondent from time to time and also with his affidavit evidence revealed that he did not deposit the 50th (fiftieth) instalment of the determined rent arrears. Accordingly, it held that he having not made payment as required by sub-sections (2) and (2A) of section 17 of the Act, was not entitled to the protection against a decree for delivery of possession. Accordingly, it held that he having not made payment as required by sub-sections (2) and (2A) of section 17 of the Act, was not entitled to the protection against a decree for delivery of possession. On this ground it passed the eviction decree on April 24, 2007. 5. Feeling aggrieved, the respondent lodged the Title Appeal and deposited the 50th (fiftieth) instalment of the rent arrears determined by the order dated December 12, 2001 with interest. On July 25, 2008 he applied to the First Appellate Court under O. 41, R. 27 CPC for producing evidence in proof of the deposit. The appellants took a cross-objection to the decree on the reasonable requirement issue. 6. By the impugned order the First Appellate Court allowed the appeal "in the context of the application" under O. 41, R. 27 CPC, set aside the judgment and decree and remanded the case directing the Trial Court to allow the respondent to produce additional evidence concerning payment of the 50th (fiftieth) instalment and decide the question of protection under section 17(4) of the Act. 7. Though the appellants did not apply for inspection of any property for deciding their cross-objection on the reasonable requirement issue and they sought a decree on the basis of the evidence already taken down by the Trial Court, the First Appellate Court directed the Trial Court to permit them to take step for inspection for ascertaining whether they "have suitable accommodation elsewhere" and decide the reasonable requirement issue afresh. 8. Being aggrieved the appellants filed this appeal that was admitted by an order dated March 5, 2009, the relevant parts whereof are quoted below: This appeal will be heard on the following substantial questions of law: (i) Whether the learned Judge in the Lower Appellate Court substantially erred in law in exercising his power under Rule 23A of Order 41 of the Code of Civil Procedure in view of the admitted position that the tenant did not deposit the last instalments in compliance with the order passed in connection with an application under sub-section (2) of section 17 of the West Bengal Premises Tenancy Act, 1956? (ii) Whether the learned Judge in the Lower Appellate Court substantially erred in law in granting liberty to the defendant to adduce additional evidence under Order 41 Rule 27 of the Code of Civil Procedure? 9. Mr. (ii) Whether the learned Judge in the Lower Appellate Court substantially erred in law in granting liberty to the defendant to adduce additional evidence under Order 41 Rule 27 of the Code of Civil Procedure? 9. Mr. Prasad, the second appellant appearing in person, has argued that when the appellants did not apply for inspection of any property and they wanted a decree on the basis of the evidence already taken down by the Trial Court, there was no reason for the First Appellate Court to remand the case for fresh adjudication of the reasonable requirement issue that, in any case, the appellants have now decided not to press. As to the default issue, he has said that the remand is without jurisdiction. 10. Mr. Bhattacharya appearing for the respondent has argued as follows. Since the First Appellate Court was of the view that the respondent should be permitted to produce additional evidence in proof of deposit of the 50th (fiftieth) instalment of the determined rent arrears at the; appeal stage, and the appellants took a cross-objection to the decree on the reasonable requirement issue, the First Appellate Court rightly remanded the case. 11. The impugned order has been passed by the First Appellate Court under O. 41, R. 23A CPC. The provisions of the rule empowered the First Appellate Court to reverse the decree in appeal and remand the case to the Trial Court, if it considered a re-trial necessary. 12. Now assuming that the First Appellate Court was justified in allowing the respondent to produce additional evidence in proof of deposit of the instalment in question, it is to be examined whether its that decision could empower it to set aside the decree and remand the case asking the Trial Court to give a fresh decision. 13. In view of the provisions of O. 41, R. 28 CPC the First Appellate Court, even if it was justified in allowing the respondent to produce additional evidence, could not, on the basis of its such decision, set aside the Trial Court decree and remand the case for a fresh decision, for the provisions of O. 41, R. 28 CPC empowered it only to take the evidence, or to direct the Trial Court to take the evidence and send it when taken to it. 14. 14. The impugned order of remand, not passed on an opinion that a re-trial of the suit was necessary, but for permitting the respondent to produce additional evidence, is, therefore, illegal and without jurisdiction. 15. Now it is to be examined whether the First Appellate Court was justified in allowing the respondent to produce additional evidence in proof of deposit of the 50th (fiftieth) instalment of the determined rent arrears. 16. The provisions of O. 41, R. 27 CPC empowered the First Appellate Court to allow the respondent, the appellant before it, to produce additional evidence if the Trial Court had refused to admit evidence which ought to have been admitted, or he established that the evidence was not within his knowledge or that even after the exercise of due diligence it could not be produced by him at the time the decree was passed. 17. The 50th (fiftieth) instalment of the determined rent arrears was deposited by the respondent after the decree for eviction for non-deposit thereof Hence there was no question of the Trial Court's refusing to admit any evidence in proof of its deposit, or the respondent's establishing that the evidence was not within his knowledge or that even after the exercise of due diligence it could not be produced by him at the time the Trial Court passed the decree. 18. The evidence the respondent wanted to produce before the First Appellate Court could not be allowed to be produced as additional evidence, for it was not in existence at the date the Trial Court passed the decree. Under O. 41, R. 27 CPC only such evidence that, notwithstanding the exercise of due diligence, was not within the knowledge of the party or could not, after the exercise of due diligence, be produced by him at the time the decree was passed, can be allowed to be produced as additional evidence. 19. The question whether the deposit of the 50th (fiftieth) instalment of the determined rent arrears entitled the respondent to claim protection under section 17(4) of the Act did not and could not arise before the Trial Court, for it was deposited after the Trial Court passed the eviction decree for its non-deposit. Hence the First Appellate Court could not direct the Trial Court to decide the question. Hence the First Appellate Court could not direct the Trial Court to decide the question. The protection rightly or wrongly claimed before the First Appellate Court was to be decided by the First Appellate Court itself. 20. While considering the respondent's request under O. 41, R. 27 CPC the First Appellate Court could not, of its own accord, consider the question of inspection in connection with the reasonable requirement issue, for it was not to collect evidence for any party to the case. It was required to decide the cross-objection involving the issue of reasonable requirement on the basis of the evidence already taken down by the Trial Court. But then, the issue is no more alive. The appellants have decided not to press it. For these reasons, I answer both the framed questions in the affirmative, allow the appeal, set aside the impugned order and direct the First Appellate Court to decide the respondent's appeal within three months from the date of communication of this order examining whether the deposit of the 50th (fiftieth) instalment of the determined rent arrears at the appeal stage can entitle the respondent to the protection under section 17(4) of the Act. No costs Certified xerox. Appeal allowed