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2013 DIGILAW 723 (CAL)

N. M. Dassi & Company v. KALIDAS BASAK

2013-09-25

TARUN KUMAR GUPTA

body2013
JUDGMENT Tarun Kumar Gupta, J.–This is an application under Article 227 of the Constitution of India directed against Order No. 18 dated 18th November, 2009 passed by the learned Judge XIIIth Bench, City Civil Court at Calcutta in Title Appeal No. 57 of 2008 arising out of Ejectment Suit No. 864 of 2000. 2. It is the case of the petitioner-tenant that the opposite party-landlord filed a suit for eviction wherein the reasonable requirement of the suit premises situated in the ground floor, for running business of his son was one of the grounds. It is further case that the suit was decreed by the learned trial Court allowing said claim of reasonable requirement of the plaintiff-landlord. The petitioner-tenant, accordingly, preferred an appeal being Title Appeal No. 57 of 2008. During pendency of said appeal he filed an application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure for taking note of some subsequent events viz. acquiring of four rooms in the first floor by the plaintiff-landlord through eviction of another tenant, construction of a staircase and having a room beneath the staircase to satisfy his requirement. Accordingly, the petitioner/defendant-tenant wanted to adduce further evidence in support of said subsequent events. 3. The petitioner-tenant also filed one application under Order 39 Rule 7 of the Code of Civil Procedure for inspection and taking note of said new constructions as alleged in his application under Order 41 Rule 27 of the Code of Civil Procedure. 4. By the order impugned, learned lower appellate Court rejected both the applications. Hence is this case. 5. Learned advocate, Mr. Ashok Chakraborty appearing for the petitioner-tenant submits that the order impugned is not sustainable in law as the learned lower appellate Court disposed of the application under Order 41 Rule 27 of the Code of Civil Procedure in piecemeal before taking up hearing of the appeal. According to him, for proper appreciation of the averments made in said application under Order 41 Rule 27 of the Code of Civil Procedure, learned trial Court should have taken up hearing of the same along with the hearing of the appeal. In support of his contention, he has referred case laws reported in 2013(2) CHN (HC) 123 (Union of India Vs. Ibrahim Uddin), (2008) 8 SCC 511 [North Eastern Railway Administration, Gorakhpur Vs. In support of his contention, he has referred case laws reported in 2013(2) CHN (HC) 123 (Union of India Vs. Ibrahim Uddin), (2008) 8 SCC 511 [North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (dead) by LRS], (2001) 10 SCC 619 (State of Rajasthan Vs. T.N. Sahani and Ors), AIR 1998 Calcutta 29 (Smt. Sakuntala Chakraborty, Vs. Shiba Prosad Roy and Anr.) and 1994(2) CLJ 114 (Bangshidhar Pal Vs. Anil Kumar Pal). 6. Mr. Chakraborty next submits that the other petition under Order 39 Rule 7 of the Code of Civil Procedure which was dependent on earlier petition under Order 41 Rule 27 of the Code of Civil Procedure was also rejected by the Court on account of rejection of the petition under Order 41 Rule 27 of the Code of Civil Procedure. He submits that the order impugned should be set aside and that the learned lower appellate Court should be directed to take up these two applications at the time of hearing of the appeal. 7. Learned Senior advocate, Mr. Jiban Ratan Chatterjee, appearing for the opposite party-landlord, on the other hand submits that the learned lower appellate Court rejected said application under Order 41 Rule 27 of the Code of Civil Procedure as the alleged events were not subsequent events and were taken into consideration by the learned trial Court at the time of passing of the decree of eviction on the ground of reasonable requirement. He next submits that there is no legal bar to hear out an application under Order 41 Rule 27 of the Code of Civil Procedure by the Court before taking up hearing of the appeal. In support of this contention, he has referred a case law reported in 2009(4) CHN 189 (Bela Mondal & Ors. Vs. Badresaman Khan & Ors.) which in turn relied on a Supreme Court judgment reported in AIR 1997 SC 3572 (Gurdev Singh Vs. Megna Ram). He next submits that as the application under Order 39 Rule 7 of the Code of Civil Procedure was dependent on the application under Order 41 Rule 27 of the Code of Civil Procedure, and said application under Order 41 Rule 27 was found to be misconceived one, learned trial Court rightly rejected the other application under Order 39 Rule 7 of the Code of Civil Procedure. 8. I have considered the submissions made by the learned advocates of the parties. 8. I have considered the submissions made by the learned advocates of the parties. I have perused the impugned order, other materials on record and the case laws referred by the learned advocates of the parties. 9. There is no denial that the opposite party-landlord filed said suit for eviction wherein reasonable requirement of the suit premises situated in the ground floor for being used as a business place for his son was one of the grounds and the suit was decreed on that ground. During pendency of the appeal in the lower appellate Court, the petitioner-tenant filed one application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure alleging that the opposite party-landlord came into possession of four rooms in the first floor through eviction of another tenant and that a new staircase was constructed having a room beneath it and that these things happened after passing of the decree and hence he should be permitted to adduce oral evidence in support of said subsequent events which according to him satisfied the requirement, if any, of the opposite party-landlord. It appears that the learned lower appellate Court took up the hearing of said application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure keeping the hearing of the appeal pending. Learned trial Court rejected said application on the ground that those alleged subsequent events were not really subsequent events and that those were taken care of by the learned trial Court in his judgment. At the time of disposing of said application by the order impugned, learned trial Court elaborately discussed the judgment of learned trial Court as well as evidence of some of the witnesses. The point in issue is whether the learned lower appellate Court should have taken up hearing of said application disclosing alleged subsequent events before taking up hearing of the appeal or should have taken up the hearing of the same along with the appeal. 10. The point in issue is whether the learned lower appellate Court should have taken up hearing of said application disclosing alleged subsequent events before taking up hearing of the appeal or should have taken up the hearing of the same along with the appeal. 10. In the case of Union of India (supra), Hon’ble Apex Court held that an application for taking additional evidence if filed during the pendency of the appeal is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the Court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. It was further held that in case, application for taking additional evidence is considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential. 11. In the case of North Eastern Railway Administration, Gorakhpur (supra) the Hon’ble Apex Court held that the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce the judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits. 12. In the case of State of Rajasthan (supra) Hon’ble Apex Court held that taking a view on the application under Order 41 Rule 27 before hearing of the appeal, would be inappropriate. The High Court judgments relying on Smt. Sakuntala Chakraborty (supra) and Bangshidhar Pal (supra) took the same view. But on perusal of those case laws it appears that the learned lower appellate Court disposed of said application in those cases mechanically without considering the materials lying in the judgment impugned and accordingly Hon’ble Apex Court and this Court held that it would be always advisable to take up hearing of the application under Order 41 Rule 27 of the Code of Civil Procedure along with the appeal as the Court will have the opportunity to note the materials lying in the record and the material sought to be brought into record and whether those materials sought to be brought into record will be required for proper adjudication of the appeal. But in the case in hand, it appears that the learned lower appellate Court considered the materials already on record vis-à-vis the materials sought to be brought on record through evidence and came to a finding of fact that the alleged constructions were already taken note by the learned trial Court and hence the same was not subsequent events for which the application under Order 41 Rule 27 of the Code of Civil Procedure should be invoked. As such above referred case laws have no application in the case in hand. 13. In the case of Gurdev Singh (supra) a revision was filed against the order of the appellate Court allowing additional evidence when the appeal was pending for hearing. The High Court took the view that the order of the lower appellate Court was not sustainable in law. But the Hon’ble Apex Court held that the approach of the High Court in revision was not correct as the appeal was still pending in the lower appellate Court and that the High Court should not have interfered with the same as the person aggrieved in connection with passing of said order by the lower appellate Court can always take it as an issue during hearing of the second appeal. Said view of the Hon’ble Apex Court was followed by this Court in the judgment reported in 1998 (1) CHN 486 (Rabin De Vs. Sm. Bimala Roy) as well as in Bela Mondal’s case (supra). Admittedly, in the case in hand, if the order impugned rejecting the application under Order 41 Rule 27 of the Code of Civil Procedure is not interfered with, the petitioner-tenant will not be prejudiced in any way as he will get an opportunity to challenge the same in the second appeal if the decision of the first appellate Court goes against him. 14. Admittedly, the petition under Order 39 Rule 7 of the Code of Civil Procedure was solely dependent on the petition under Order 41 Rule 27 of the Code of Civil Procedure. As the petition under Order 41 Rule 27 was rejected, there is no question of allowing said application under Order5 39 Rule 7. The same thing may be said about said order of rejection of application under Order 39 Rule 7. As the petition under Order 41 Rule 27 was rejected, there is no question of allowing said application under Order5 39 Rule 7. The same thing may be said about said order of rejection of application under Order 39 Rule 7. Said order of rejection can well be agitated if the petitioner-defendant is required to file the second appeal from the order of the learned lower appellate Court. 15. Accordingly, the present revisional application is hereby dismissed with the observations as made above. However, I pass no order as to costs. 16. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates appearing for the parties upon compliance of all necessary formalities.