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2014 DIGILAW 572 (CAL)

Narayan Chandra Dey v. S. M. Mundiwala

2014-07-01

TAPAN KUMAR DUTT

body2014
JUDGMENT Tapan Kumar Dutt, J. When the appeal is called out for hearing along with the review application being R.V.W. 195 of 2009 none appears on behalf of the respondent/petitioner in the review application, nor any prayer for adjournment has been made on behalf of the said respondent/petitioner in the review application. The learned Advocate appearing on behalf of the appellant/opposite party in the review application submits that such review application is not maintainable and it should be dismissed. It appears that by an order dated 10.09.2009 a learned Single Judge of this Court was pleased to dismiss CAN 3834 of 2009 which was an application for recalling of the order dated 31.03.2009 passed in the instant appeal. It will appear from the said order dated 10.09.2009 itself that by the said order dated 31.03.2009 a learned Single Judge of this Court was pleased to formulate substantial questions of law in the instant appeal (First Miscellaneous Appeal) which arose out of an order of remand of a certain suit passed by the learned First Appellate Court. It appears that by an order dated 10.09.2009 the learned Single Judge of this Court was pleased to dismiss the said application being CAN 3834 of 2009 on merits. The present application being R.V.W. 195 of 2009 is an application for review of the said order dated 10.09.2009. Even though the said CAN 3834 of 2009 was described as an application for recalling of a certain order it was in effect an application for review of the order dated 31.03.2009. The learned Advocate for the appellant/opposite party rightly points out that the provisions of Order 47, Rule 9 of the Civil Procedure Code prohibits such second application for review. In such circumstances, this Court finds that the present application for review should be dismissed as it cannot be entertained under the provisions of Order 47, Rule 9 of the Civil Procedure Code. Accordingly, the review application is dismissed. The appeal is taken up for hearing. During the course of hearing of the appeal, the learned Advocate for the defendant/respondent appeared and made his submissions. This Court has heard the learned Advocate for the plaintiffs/appellants and also the learned Advocate for the defendant/respondent and has also considered the relevant materials on record. Accordingly, the review application is dismissed. The appeal is taken up for hearing. During the course of hearing of the appeal, the learned Advocate for the defendant/respondent appeared and made his submissions. This Court has heard the learned Advocate for the plaintiffs/appellants and also the learned Advocate for the defendant/respondent and has also considered the relevant materials on record. The facts of the case, briefly, are as follows : The plaintiffs/appellants filed a suit for eviction being Title Suit No. 42 of l996 against the defendant/respondent and such suit was placed before the learned First Court of Civil Judge (Senior Division) at Alipore. It appears that the said suit was filed on the ground that the defendant has illegally sublet the suit premises, that the defendant was a defaulter in payment of rent and the plaintiffs required the suit premises for their own use and occupation. The learned Trial Court in its judgment dated 10th December, 2001 negated the contention of the plaintiffs with regard to the ground of subletting and also found that the defendant was entitled to get protection under Section 17(4) of the West Bengal Premises Tenancy Act, l956. However, the learned Trial Court decreed the said suit on the ground that the plaintiffs required the suit premises for their own use and occupation. It appears from the judgment of the learned Trial Court itself that the case of the plaintiffs was that the plaintiffs along with their four brothers and four sisters were the present owners of a property at 6/C, Durgapur Lane which was inherited on the death of their father, Sripada De. According to the plaintiffs, their father purchased the premises No. 3, Durgapur Lane which only belonged to the plaintiffs themselves. The plaintiffs further alleged that the defendant was a tenant under the plaintiffs. The learned Trial Court found that the plaintiffs have been able to prove ownership of the suit property and the plaintiffs’ case of reasonable requirement for their own use and occupation. Being aggrieved by the judgment and decree passed by the learned Trial Court, the defendant filed Title Appeal No. 49 of 2002 which was placed before the learned 6th Court, Additional District Judge at Alipore. Being aggrieved by the judgment and decree passed by the learned Trial Court, the defendant filed Title Appeal No. 49 of 2002 which was placed before the learned 6th Court, Additional District Judge at Alipore. The learned First Appellate Court by the impugned judgment and decree has set aside the judgment and decree passed by the learned Trial Court and has sent the suit back on remand before the learned Trial Court for fresh trial in the light of observations made in the body of the impugned judgment. The learned First Appellate Court found that additional issue which was allowed to be framed, was not considered by the learned Trial Court. The learned First Appellate Court also found that P.W.1 did not deny the averment of the defendant that the plaintiffs had obtained vacant possession of the eastern side flat of the suit holding from one Sri Agarwal in the year l994 and let out the same to Biswanath Mondal in the later part of the year l995. The learned Lower Appellate Court found that the learned Trial Court did not consider this aspect of the matter in its judgment. The learned Lower Appellate Court also found that the requirement of the married sisters of the plaintiffs need not be considered as ordinarily such married sisters are not entitled to get accommodation in the residential house left by their father. The learned Advocate appearing on behalf of the plaintiffs/appellants submitted that the learned Lower Appellate Court wrongly held that the additional issue was not decided. According to the said learned Advocate since both the parties were fully aware of the issue involved in the litigation non-framing of such issue formally is not fatal to the suit itself. The said learned Advocate also submitted that since the learned Lower Appellate Court had considered the evidences on record while considering the Title Appeal the learned Lower Appellate Court should have decided the litigation finally instead of remanding the matter back to the learned Trial Court as all the evidences required were there before the learned Lower Appellate Court. The said learned Advocate further submitted that the learned Lower Appellate Court was not correct in holding that the married sisters of the plaintiffs are not entitled to any accommodation in the property left by the father of the plaintiffs. The said learned Advocate further submitted that the learned Lower Appellate Court was not correct in holding that the married sisters of the plaintiffs are not entitled to any accommodation in the property left by the father of the plaintiffs. The learned Advocate appearing on behalf of the defendant/respondent submitted that the learned Trial Court should have taken into consideration the additional issue that was permitted to be framed. According to the said learned Advocate, the learned Lower Appellate Court did the right thing in remanding the matter back to the learned Trial Court so that the learned Trial Court can take further evidence in this regard. The said learned Advocate cited a decision reported at (2008) 12 S.C.C. 372 . The said learned Advocate submitted that the learned Trial Court acted illegally in not including additional issue in the body of issues framed. The learned Advocate for the defendant/respondent further submitted that the requirement of the plaintiffs/appellants should be subsisting even at the stage of hearing of the suit finally and not only at the time of final hearing of the suit. It may be recorded here that the learned Advocate for the appellant has not disputed such proposition of law as such in this regard. However, the learned Advocate for the appellants submitted that the provisions of Order XLI, Rule 24 C.P.C. should have been invoked and the learned Lower Appellate Court should have decided the suit finally by disposing of the appeal instead of sending the matter back on remand when evidence on record was already there before the learned Lower Appellate Court. It appears to this Court that the following was the additional issue which was allowed to be framed by the learned Lower Appellate Court at one stage : ‘Is the suit bad for non-joinder of the heirs of the deceased, Sripada De as Plaintiffs’ ? It will appear from the records itself as to who the plaintiffs are? It will further appear from the records the number of brothers and sisters the plaintiffs have. Thus, it will be clear from the records with regard to the fact that apart from the plaintiffs, there were other sons and daughters of Sripada De. There is no necessity of additional evidence to find out whether all the heirs of Sripada De are on record or not. Thus, it will be clear from the records with regard to the fact that apart from the plaintiffs, there were other sons and daughters of Sripada De. There is no necessity of additional evidence to find out whether all the heirs of Sripada De are on record or not. It is quite evident from the records itself whether the suit was bad for non-joinder of necessary party or not. The learned Lower Appellate Court could have itself decided the dispute on the evidence already on record. In (2008) 12 S.C.C. 372 the Hon’ble Supreme Court was pleased to observe in paragraph 11 of the reports that “As has been rightly contended by learned counsel for the appellant, there may be cases where additional evidence may not be required. But where the additional evidence is required, then the lower court has to return the evidence so recorded to the appellate court together with the findings thereon and the reasons therefor.” This Court finds that in the facts and circumstances of the instant case, no such additional issue is required in order to answer the additional issue as quoted above. The learned Lower Appellate Court could have given its finding on such additional issue. With regard to the other submission of the learned Advocate for the defendant/respondent that the reasonable requirement of the plaintiffs must subsist even at the stage of hearing of the suit cannot be disputed. There was sufficient evidence on record for the learned Lower Appellate Court to decide such matter. If the learned Lower Appellate Court was of the view that a certain flat falling vacant was not considered by the learned Trial Court, the learned Lower Appellate Court could have considered the same itself when such evidence was before the learned Lower Appellate Court. Another important aspect of the matter needs to be addressed. This Court is of the view that the learned Lower Appellate Court was not right in holding that the married daughters of Sripada De, i.e., the sisters of the plaintiffs were not entitled to any accommodation in the property left by their father. The married daughters have a share in the property left by their father according to the Hindu Law and, therefore, it cannot be said that the married daughters are not entitled to any accommodation in the property left by their father. The married daughters have a share in the property left by their father according to the Hindu Law and, therefore, it cannot be said that the married daughters are not entitled to any accommodation in the property left by their father. In view of the discussions made above, this Court is of the view that the learned Lower Appellate Court should have taken into consideration the provisions under Order XLI, Rule 24 C.P.C. which provides that where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds. In view of the discussions made above, this Court sets aside the impugned judgment and decree passed by the learned Lower Appellate Court and the matter is sent back on remand to the learned Lower Appellate Court for a fresh decision of the aforesaid Title Appeal on merits and the learned lower appellate court shall finally decide the same in accordance with law as early as possible without granting any unnecessary adjournment. Let the lower court records be sent back to the learned lower appellate court concerned. A copy of this judgment be also communicated to the learned lower appellate court concerned. There will be no order as to costs.