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2014 DIGILAW 1062 (CAL)

Adarsha Bidya Bhawan v. Shrimati Gayatri Bose

2014-11-14

ASIM KUMAR MONDAL

body2014
Judgment Asim Kumar Mondal, J. The present application being No. C.A.N. No. 5287 of 2013 in S.A. No. 94 of 1992 has been filed by the appellant for additional evidence. The opposite party No. 1 Smt. Gayatri Bose and the predecessor-in-interest of opposite party No. 2 Smt. Renu Bose and opposite party No. 2 Ranib Bose instituted a suit, inter alia, for recovery of possession on the ground of expiry of lease with effect from 1st Baisakh 1390 B.S. against the appellant No. 1 and 7 and others in the court of then Learned Munsif, 4th Court at Alipore, District 24 Parganas (South) which was registered as Title Suit No. 274 of 1985. The suit was decreed on contest against the defendants / appellants. An appeal was preferred being No. 382 of 1988 before the learned District Judge at Alipore which was disposed of by the learned additional District Judge, 2nd Court at Alipore. Learned Additional District Judge, allowed the said appeal in part on contest against the contesting respondents and ex-parte against the rest and thereby affirmed the judgment and decree passed by the learned trial Court. The appellants / defendants preferred the second appeal before the High Court being S.A. No. 94 of 1992 which is pending. During the pendency of the second appeal the respondents Nos. 1, 2 and 3 by a registered deed of sale dated December 26th, 2008 sold the suit property along with two storied brick built building standing thereon to one Saket Promoters Limited has been devolved upon the purchaser being the respondent no. 15. Respondent No. 15 by a letter assured appellants that the school shall be rehabilitated within six months after construction and development of the said premises. They forwarded a proposal with plan for rehabilitation. Secretary of the school i.e. the appellant No. 1 gave reply in details to the said proposal. The respondent No. 15 by his letter dated 23rd September, 2009 informed the appellants that they have purchased the premises No. 15A and 15B Behari doctor Road, Kolkata – 700025 by a registered conveyances. They forwarded a proposal with plan for rehabilitation. Secretary of the school i.e. the appellant No. 1 gave reply in details to the said proposal. The respondent No. 15 by his letter dated 23rd September, 2009 informed the appellants that they have purchased the premises No. 15A and 15B Behari doctor Road, Kolkata – 700025 by a registered conveyances. The landlord / owner during the pendency of the Second Appeal before this High Court has accepted the rents from the then Secretary of the School in respect of premises No. 15B till the month of December, 2008 and thereafter the owners of both the premises had informed the then Secretary that they have sold the premises in question including the tenanted portion and requested to pay rent to the respondent No. 15. The documents as disclosed above, all the subsequent documents which were not in existence prior to pronouncement of judgment by the learned lower Appellate Court and as such in spite of due diligence such evidence could not be brought into the records before the Courts below. The applicant in these circumstances pray for necessary order to allow to file the annexures P/1 and P/3 in this applications as an additional evidence in the instant appeal. Mr. Pijush Chaturbedi with Mr. Bhagabat Chowdhury and Ms. Anwesha Saha appeared on behalf of the applicants. Mr. Chaturbedi submits that Saket Promoters Limited who is the respondent No. 15 by a letter dated December 3rd, 2008 as addressed Sri Bhim Narayan Singh, the then secretary of the School as tenant in respect of a portion comprising of 700 Sq. ft. approximately in the ground floor of premises No. 15A/15B Behari Doctor Road, Kolkata – 700025 under Smt. Gayatri Bose and others. Mr. Chaturbedi draws my attention as to the annexure P/1. Learned counsel further submits that from the said letter is the clear that the appellants school is in occupation of premises No. 15B. The letter is received after the judgment and decree passed by the learned Lower Appellate Court. The facts which are intended to be taken on record are subsequent events. The document subsequent to the decree and judgment of the First Appellate Court were not in existence prior to pronouncement of the said judgment and as such in spite of due diligence such evidence could not be brought into the records before the Court below. The facts which are intended to be taken on record are subsequent events. The document subsequent to the decree and judgment of the First Appellate Court were not in existence prior to pronouncement of the said judgment and as such in spite of due diligence such evidence could not be brought into the records before the Court below. The documents are vital evidence by which the respondent No. 15 by him the appellants as a tenant in respect of same portion of the said schedule property without considering this document the instant appeal cannot be adjudicated effectively and properly. Mr. Chaturbedi further submits that as such for the ends of justice the appellants be permitted to adduce additional / further evidence specially with regard to documents being annexure P/1 to P/3. Mr. Chaturbedi further draws my attention as to annexure P/3 which are the rent receipts issued by the previous landlords namely Smt. Shanti Ghose, Smt. Manjula Bose, Sm. Leena Bose, Kamal Kumar Bose and Pranati Pawar. These rent receipts were issued during the pendency of appeal. Mr. Chaturbedi further draws photocopies of letters with the applications and submits that the landlords issued law of adjournment with a request to attorn tenancy in favour of Saket Promoters Ltd. Finally Mr. Chaturbedi submits that from the facts and circumstances it appears from the documents which were received subsequent to the judgment and decree passed by learned Lower Appellate Court are very vital and necessary to be adduced for effective adjudication by this Court. Mr. Chaturbedi seeks permission to adduce further evidence in respect of rent receipts issued by the previous owners in favour of appellant during the substance of instant appeal thereby recognising the appellant to be a tenant and further with letter dated December 3rd, 2008 issued by the respondent No. 15 that is the subsequent purchaser of the suit property proposed rehabilitation of the appellant as a tenant therein and finally letter dated March 18th, 2009 issued on behalf of the appellant seeing the proposed building plan with specification as regards the proposed rehabilitation. Mr. Chaturbedi tried to impress him as to the power of the First Appellate Court to consider the evidences adduced by the party before Trial Court to take additional evidence for proper adjudication. Mr. Chaturbedi relied upon the decision of Hon’ble Apex Corut reported in 1981 SCC Page 113 and AIR 2005 SC 99. Mr. Mr. Chaturbedi tried to impress him as to the power of the First Appellate Court to consider the evidences adduced by the party before Trial Court to take additional evidence for proper adjudication. Mr. Chaturbedi relied upon the decision of Hon’ble Apex Corut reported in 1981 SCC Page 113 and AIR 2005 SC 99. Mr. Suman Dutta with Mr. Atish Ghosh and Arindam Chandra appeared on behalf of the respondent No. 15 to oppose the prayer of the applicants. It is submitted that the appellant has lodged the case before the Trial Court as well as First Appellate Court. There are concurrent findings of both the Courts as regarding the right, title and interest of the appellants. Learned both the Trial Court and First Appellate Court has viewed that the appellant was under occupation of the suit property by dint of lease Deed for 22 years. After expiration of lease period both the courts below have protected to vacate the premises. There is no scope to adduce additional evidences on the new cause of action at the stage of second appeal before the High Court. In second appeal High Court has got no scope to consider evidences adduced by the parties before learned Trial Court. Mr. Dutta referred one decision by High court reported in AIR 1992 Andhra Pradesh 304. I have carefully considered the submissions of learned counsel for the parties and also the facts and circumstances of the case in hand it appears to me from the record that the appellants took the plea and argued that as the tenancy has split up the lease is not abstaining and likewise the defendants / appellants were tenants governed by West Bengal Premises Tenancy Act, 1956. It is also argued before the learned Trial Court that as the tenancy was split with consent it is governed not by Transfer of Property Act but by West Bengal Premises Tenancy Act, 1956. The rents after the splitting up the tenancy is being regularly paid to the other sets of landlords. From the case as made out by the appellant before learned Trial Court it is clear that they took the plea of tenancy under the Premises Tenancy Act. The learned Trial Court as well as learned First Appellate Court disbelieve the case of the appellants / defendants and decreed the suit in favour of the respondents / plaintiffs. From the case as made out by the appellant before learned Trial Court it is clear that they took the plea of tenancy under the Premises Tenancy Act. The learned Trial Court as well as learned First Appellate Court disbelieve the case of the appellants / defendants and decreed the suit in favour of the respondents / plaintiffs. The onus of proving the case of tenancy under West Bengal Premises Tenancy Act, 1956 was upon the appellants. They have failed to discharge the onus. So, they are not under the fresh opportunity to produce evidence as the Court can in such case pronounced judgment against them and it is not required any additional evidence to enable it to pronounce the judgment. The plan for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court should consider such an application with the circumstances, provided it is covered either of the pre-requisite conditions incorporated in the statutory provisions itself. In the instant case it appears to me that the appellant took the plea before the Trial Court as well as before the First Appellate Court that after expiry of lease the relation between landlord and them were converted into a tenancy under the West Bengal Premises Tenancy Act, 1956 on the ground that even after expiry of lease the landlords granted receipts of rents were paid. At the stage of second appeal and after expiry of a considerable period from the institution of the second appeal the appellant has come up with the instant application for additional evidences on subsequent facts cannot be accepted or appreciated the documents which has intended before taking on record as additional evidence by the applicants have already been raised and considered in both the Courts below. The documents which are proposed to be taken into evidence are nothing but new documents on self-same cause of action already taken and disposed of by the learned Court below. In my considered view the appellants cannot and should not grant any fresh opportunity to produce such evidences as at this stage after considering the facts and circumstances of the parties this Court is of the view that no additional evidences is required to pronounce the judgment. In the result the application having no merit stands dismissed without costs. In my considered view the appellants cannot and should not grant any fresh opportunity to produce such evidences as at this stage after considering the facts and circumstances of the parties this Court is of the view that no additional evidences is required to pronounce the judgment. In the result the application having no merit stands dismissed without costs. Re: C.A.N. No. 5288 OF 2013 The present application has been filed by the appellants in S.A. No. 94 of 1992 for necessary direction from the respondent no. 15 to make necessary repair of the suit premises forthwith during the pendency of the appeal alternatively permit appellants/petitioners to undertake repairs in accordance with law and seek adjustment of cost thereof against the rent. The opposite party No. 1 and the predecessor-in-interest of the opposite party No. 2 and 3 as plaintiffs instituted a suit, inter alia, for recovery of possession on the ground of expiry of the lease with effect from 1st Baisakh 1390 B.S. against the appellants No. 1, 7 and 6. The suit being T.S. No. 274 of 1985 was decreed on contest with cost by the learned Trial Court. An appeal was preferred against the said judgment and decree, which was allowed in part on contest against the contesting respondents and ex-parte against the rest. The judgment and decree passed by the learned Trial Court was affirmed so far eviction of the defendants and the decree relating to damages was modified. The plaintiffs / respondents No. 1, 2 and 3 by a registered deed of sale transferred the suit property during the pendency of the appeal in favour of respondent No. 15 namely Saket Promoters Limited. It is alleged that respondent no. 15 by a letter dated December 3rd, 2008 admitted the then Secretary of the school as a permission of permission No. 15B, Behari Doctor Road measuring an area of 700 sq. ft. approximately in the ground floor. It is the further case of the applicants that the suit schedule building wherein the appellants seek is situated is very old building. Due to the non-repair of the said building for a petty long time the present condition of the said building has become very bad. Places of the wall and roof are peeling off, room of the building has been developed whereby construct as several places. Due to the non-repair of the said building for a petty long time the present condition of the said building has become very bad. Places of the wall and roof are peeling off, room of the building has been developed whereby construct as several places. Many trees have been grown on the outside wall of the building from which water is pouring during rain. The students, teaching and non-teaching staff of the school are very unsafe. The school requires immediate repairing. Respondent No. 15 did not make any repair since their purchase in spite of repeated requests. Under such circumstances the applicants pray for necessary direction upon the respondent No. 15 to repair the suit premises immediately. Mr. Pijush Chaturbedi with Mr. Bhagbat Chowdhury and Ms. Anwesha Saha appear on behalf of the applicants. Mr. Chaturbedi submits that the building of the school is in a dilapidated condition and safety and security of the students as well as the teaching staff is involved. Mr. Chaturbedi submits that direction should be given for necessary repair of the building under the supervision of Court officer may be appointed by the court and the cost of the repairing be adduced against the monthly rent payable to the respondent No. 15. Direction also may be given to the School authority for obtaining necessary permission from the Municipal Corporation for such repairing. Mr. Chaturbedi submits that the repairing work as proposed will not change the nature and character of the suit property. Mr. Suman Dutta with Mr. Atish Ghosh and Mr. Arindam Chandra appears on behalf of the opposite parties. Mr. Dutta submits that the petition for repairing filed at a belated stage and the issue of repairing on the plea that their unauthorised have been filing the Second Appeal before this Court. Mr. Dutta submits that the appeal preferred by the applicants is caused the dismissal of the suit before learned trial Court as well as before First Appellate Court on the ground of expiry of lease. The respondent No. 15 never recognised the appellants as a monthly tenant under the Premises Tenancy Act. So, the respondent No. 15 is not liable to pay any cost of repairing as alleged by the applicants. The respondent No. 15 never recognised the appellants as a monthly tenant under the Premises Tenancy Act. So, the respondent No. 15 is not liable to pay any cost of repairing as alleged by the applicants. After considering the submissions of learned counsel for the parties and also careful perusal of the application in hand for repairing, it appears to me that nowhere in the said application it has been stated that how many rooms of the building are in possession of the school and further that how many rooms are required to repair and further that whether such repairing requires any permission of the Municipal Authority and any a permission to that effect has been sought for or whether any assessment was done by the Charter engineer to ascertain the cause for such repairing. There is nothing to show that the applicant approached the respondent No. 5 for such repairing that all particulars and information relating to the said proposed repairing and the respondent No. 15 even after getting such information did not tender any help to the school authority. In my considered view the prayer for repairing of the premises as proposed cannot be considered without the cost estimate, permission of Municipal Authority, if required and the opinion, views of the Charter Engineer for repairing such damages keeping the building intact each without changing the nature and character of the same and further that the applicants approached before the respondent No. 15 for such repairing. The application seeking permission for repairing appears no merit / urgency as alleged by the applicants. Thus, the application stands rejected without cost. The rejection of the prayer for repairing at this stage will not prevent the applicant to make fresh application for repairing with all necessary particulars / information as indicated above. Re : C.A.N. No. 7805 of 2013 The present application has been filed by the respondent Nos. 15, M/s. Saket Promoters Limited for direction upon the appellants to pay a sum of Rs. 21,60,000/-on account of arrear occupation charges/compensation/damages and also to pay Rs. 40,000/-per month with effect from July, 2013 to the petitioner respondent No. 5 on account of occupation charges / compensation charges for illegal occupation of the suit premises by the appellants. 15, M/s. Saket Promoters Limited for direction upon the appellants to pay a sum of Rs. 21,60,000/-on account of arrear occupation charges/compensation/damages and also to pay Rs. 40,000/-per month with effect from July, 2013 to the petitioner respondent No. 5 on account of occupation charges / compensation charges for illegal occupation of the suit premises by the appellants. The respondent No. 1 and the predecessor of respondent No. 2 and 3 were the erstwhile owners of the suit premises, instituted a suit in the year 1985 in the Court of learned Munsif at Alipore for recovery of possession of the suit premises and damages from the appellants on expiry of lease. The appellants /defendants preferred an appeal before the learned District Judge at Alipore which was registered as Appeal No. 382 of 1988. The said appeal was allowed in part only to the extent that the quantum of damages decreed by the learned Trial Court was modified but the decree in so far as the eviction of the appellants from the suit premises is concerned, was affirmed by the appeal court's judgment and decree in the year 1989. The said suit was decreed on contest by the learned Trial Court in the year 1988. Appeal preferred and the said appeal was allowed and the judgment and decree of the learned Trial Court was affirmed in the year 1989. The appellants thereafter preferred the present second appeal which was admitted by an order dated November 11th, 1989. The instant appeal has been pending before the High Court and it is alleged that the appellants have not taken any steps to have the appeal heard. The petitioner respondent No. 15 in the meantime purchased the suit premises and has become absolute owner of the premises No. 15A, Behari Doctor Road, Kolkata – 700025 by virtue of a registered deed of conveyance dated 26th December, 2008. The petitioner as such has stepped into the shoes of the original owners / plaintiffs. The present Second Appeal has been pending for more than 23 years. The appellants are occupying and enjoying the suit premises without being paid anything towards occupation charges. The suit premises is a valuable property and is situated in a prime locality of the city. The petitioner as such has stepped into the shoes of the original owners / plaintiffs. The present Second Appeal has been pending for more than 23 years. The appellants are occupying and enjoying the suit premises without being paid anything towards occupation charges. The suit premises is a valuable property and is situated in a prime locality of the city. The appellants are in occupation of more or less about for cottahs of land for which the owners of the suit premises are in no manner being compensated. The appellants have been unauthorisedly using and occupying the suit premises since April, 1982. Under the circumstances the petitioners / respondent No. 5 prayed for a direction to pay a sum of Rs. 21,60,000/- to the petitioner towards the arrear occupational charges. The petitioner also prayed for direction upon the petitioner to pay a sum of Rs. 40,000/- every month by way of occupation charges. The appellants No. 2 Shri Shew Kumar Agarwala, Headmaster being the Secretary of Adarsha Vidya Bhawan, 15 Behari Doctor Road, Kolkata – 700025 contested the application filed by the respondent No. 15 being C.A.N. No. 7805 of 2013 by filing affidavit in opposition. The case if the appellant No. 2 is that the appellants No. 1 was a Government aided and recognised Secondary School on and from January 1st, 1961 situated at 15, Behari Doctor Road, Kolkata – 700025 now renumbered as 15A and 15B, Behari Doctor Road, Kolkata – 700025 by virtue of alleged partition between the erstwhile owners. The status of the present appellants No. 1 has become a Government sponsored school on and from 30th September, 2013 by an order dated September 30, 2013 being Memo No. 500/RMSA/SI/5S264/12 issued by the authority concerned. The school is under the control of management Committee as per the provisions of Management of Sponsored Institution (Secondary) Rules, 1972. The President and the Secretary of the Managing Committee shall be nominees of the State Government. That after admission of the instant second appeal by this Court an order of stay of operation of the impugned judgment and decree was passed by this Court along with a future direction upon the school authority to go on being the rents of the premises in question before the Rent Controller. In obedience to the said direction the school authority is depositing rents regularly. In obedience to the said direction the school authority is depositing rents regularly. The Government aided recognised High School is the tenant of the suit premises and being no profit basis. Learned Advocate on behalf of the appellant submits that a Division Bench of this Court clearly passed an order dated November 7, 1989 while hearing the stay application filed by them dated 7th November, 1989 allowing prayer for stay on condition that the said stay order will stand vacated in case of breach of any of the conditions imposed in the said stay order. The appellants are complying the terms and conditions of the said stay order. In such circumstances there is no scope to interfere into the stay order unless and until the same is modified or set aside by an appropriate court of law. It is further submitted that the appellants is a Government aided recognised High School and it is not possible for the appellant to accept and pay any arrear occupation charges or compensation as claimed by respondent No. 15. On careful perusal of the case record as well as the petition in question and affidavit-in-opposition and reply thereto filed by the parties I am of the view that as the appellants are complying the terms and conditions of the stay order passed by Division Bench of this Court. There is no scope to direct the appellants to pay a sum of Rs. 21,60,000/- on account of arrear occupation charges/compensation/damages and to pay Rs. 40,000/-per month to the petitioner / respondent No. 5 on account of occupation charges / compensation charges for illegal occupation of suit premises of the appellants as claimed. Thus the application is dismissed having no merit without any costs.