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2015 DIGILAW 712 (CAL)

Bhagwan Shaw v. Ram Bahadur Shaw

2015-08-24

DEBI PROSAD DEY, JYOTIRMAY BHATTACHARYA

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JUDGMENT : Jyotirmay Bhattacharya, J. 1. Leave is granted to the learned advocate-on-record of the appellant to rectify the defect in the memorandum of appeal in terms of the report of the Stamp Reporter. 2. This second appeal is directed against the judgment and decree passed by the learned Civil Judge (Senior Division) 3rd Court at Alipore on 30th March, 2015 in Title Appeal No. 78 of 2014 affirming the judgment and decree passed by the learned Civil Judge (Junior Division), 4th Court at Alipore on 28th February, 2014 in Title Suit No. 26 of 2007 at the instance of the defendant/appellant. 3. Let us now consider as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure or not. 4. An eviction suit was filed against the defendant/tenant by the admitted landlord from whom the plaintiffs/respondents have purchased the suit premises. In the said suit, the landlord sought for eviction of the defendant/appellant on the ground of default in payment of rent as well as for his reasonable requirement. During the pendency of the said suit, the substituted plaintiffs/respondents purchased the suit property from the original plaintiff and got themselves substituted under Order 22, Rule 10 of the Code of Civil Procedure in the place of the original plaintiff. They proceeded with the said suit with the permission of the court and after expiry of three years from the date of their purchase, the transferee landlords filed an application for amendment of the plaint for incorporating therein an additional ground i.e. the ground of reasonable requirement of the transferee landlords. 5. Such prayer for amendment of the plaint of the transferee landlords was allowed by the learned Trial Judge and ultimately the learned Trial Judge after considering the pleadings of the parties and their evidence came to the conclusion that the transferee landlords, viz. the present plaintiffs/respondents succeeded in proving their reasonable requirement of the suit premises. Thus the suit was ultimately decreed only on the ground of reasonable requirement of the plaintiffs/respondents. 6. Being aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Judge, the defendant/appellant filed an appeal before the learned First Appellate Court. 7. the present plaintiffs/respondents succeeded in proving their reasonable requirement of the suit premises. Thus the suit was ultimately decreed only on the ground of reasonable requirement of the plaintiffs/respondents. 6. Being aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Judge, the defendant/appellant filed an appeal before the learned First Appellate Court. 7. The learned First Appellate Court after considering the merit of the said appeal ultimately dismissed the same by affirming the judgment and decree of the learned Trial Judge. 8. The present second appeal is directed against such concurrent finding of facts regarding reasonable requirement of the plaintiffs/respondents of the suit premises. 9. In Mr. Chatterjee, learned advocate appearing for the defendant/appellant challenges the legality of the order passed by the learned Trial Judge allowing the plaintiffs' application for amendment of plaint as according to him, amendment once allowed relates back to the date of institution of the suit and thus allowing such amendment will be hit by the provision of Section 13(3A) of the West Bengal Premises Tenancy Act, 1956. He thus contends that the learned Trial Judge ought not to have allowed such amendment and should have dismissed the said suit which according to Mr. Chatterjee is barred under Section 13(3A) of the West Bengal Premises Tenancy Act, 1956. 10. In fact, this point is no longer a res integra as an identical contention was raised in a civil revisional application being C.O. No. 1859 of 2009 (Dr. Shekhar Roy Chowdhury v. Syed Bahauddin & Ors.) wherein this Court on 9th September, 2009 held as follows:- "For finding out the law which is now prevalent on this subject, this Court is required to take note of an unreported decision of the Hon'ble Supreme Court in the case of Civil Appeal No. 1521 of 1984 Smt. Prova Rani Chakraborty & Anr. v. Inder Sengupta wherein it was held that an additional ground of reasonable requirement which was made available during the pendency of the eviction suit after the expiry of the prohibited period under Section 13(3A) of the West Bengal Premises Tenancy Act, 1956, can be introduced in the plaint by way of amendment. In fact, by relying upon the said unreported decision of the Hon'ble Supreme Court a Division Bench of this Hon'ble Court in the case of Smt. Uma Mishra (Sanyal) v. Monoranjan Sinha & Ors. In fact, by relying upon the said unreported decision of the Hon'ble Supreme Court a Division Bench of this Hon'ble Court in the case of Smt. Uma Mishra (Sanyal) v. Monoranjan Sinha & Ors. reported in 1992 (2) CHN 407 held that the landlord is entitled to invoke the ground of eviction as mentioned in Section 13(1)(ff) of the West Bengal Premises Tenancy Act, 1956 by amendment of plaint which was filed within the prohibited period as mentioned in Section 13(3A) of the said Act and the decrees passed by the Court below on the basis of the additional ground of eviction as provided in Section 13(1)(ff) are valid and cannot be challenged on the ground that since the said suit was filed within the prohibited period, eviction cannot be sought for on the ground of reasonable requirement in the said suit after the expiry of the prohibited period. Even in the following subsequent decisions, identical views were expressed by this Hon'ble Court:- 1. In the case of Satya Gopal Saha v. Snehalata Saha, reported in 1989 (1) CLJ 256 . 2. In the case of Samar Kr. Sarkar v. Asit Kr. Sarkar & Ors., reported in 1990 (1) CHN 107 . 11. Thus, if all the aforesaid decisions are taken into consideration, then this Court has no hesitation to hold that the grounds which are made available to the plaintiffs during the pendency of the suit due to occurrence of subsequent events, can be introduced by the plaintiffs by way of amendment of plaint. Any view contrary to this, cannot be subscribed by this Court as, if such a view is taken, then on occurrence of each particular set of subsequent event, a fresh ground of eviction will be constituted, and in that case for availing of those grounds, the plaintiff will be required to institute independent eviction suit on each occasion whenever such new ground will be made available to him during the pendency of the suit but such a situation cannot even be conceived of by any Court as the basic principle of avoiding multiplication of proceeding will be frustrated if such view is taken by the Court. 12. Under such circumstances, this Court holds that the learned Trial Judge did not commit any illegality in the facts of the instant case. The revisional application thus, stands rejected." 13. 12. Under such circumstances, this Court holds that the learned Trial Judge did not commit any illegality in the facts of the instant case. The revisional application thus, stands rejected." 13. In the facts as stated above, we hold that no substantial question of law is involved in this appeal for which the appeal is required to be admitted. We, thus, decline to admit this appeal under the provision of Order 41, Rule 11 of the Code of Civil Procedure. In Re: CAN 6707 of 2015 (Stay) 14. Though we have declined to admit this appeal, but on the prayer of the learned advocate appearing for the defendant/appellant, we permit the defendant/appellant to stay in the suit premises till 30th April, 2016 on the following terms and conditions:- 1. The defendant/appellant is directed to pay to the plaintiffs/respondents a sum of Rs. 3,000/- (rupees three thousand only) per month on account of occupational charges of the suit premises during the period of their stay in the suit premises. First of such payment for the month of August 2015 should be made to the plaintiffs/respondents within 7th September, 2015 and for the subsequent months within 7th of each following month. It is made clear that rent for the month of April 2016 should be paid within 15th April, 2016. 2. Arrear rent, if there be any, should be paid by the defendant/appellant to the plaintiffs/respondents at the last paid rental rate within 15th September, 2015. 3. The defendant/appellant is also required to pay the decretal cost, if there be any, to the plaintiffs/respondents by 15th September, 2015. 4. The defendant/appellant is required to submit an undertaking before the learned Executing Court stating therein that he will vacate the suit premises and will deliver the vacant and peaceful possession thereof to the plaintiffs/respondents on or before 30th April, 2016 positively and he will not sublet and/or create any third party interest in respect of the suit premises and will not cause any damage to the suit premises during the period of his stay in the suit premises. Such undertaking should be filed by the defendant/appellant before the learned Executing Court within 7th September, 2015. 15. Such undertaking should be filed by the defendant/appellant before the learned Executing Court within 7th September, 2015. 15. All further proceedings of the Title Execution Case No. 10332 of 2014 pending before the learned Civil Judge (Junior Division), 2nd Additional Court at Alipore will remain stayed till 30th April, 2016 with this rider that in the event the defendant/appellant fails to fulfil any of the conditions as mentioned above, the stay as granted above will instantly stand vacated and under such circumstances or in case, the defendant/appellant fails to deliver vacant possession of the suit premises to the plaintiffs/respondents within 30th April, 2016, the learned Executing Court will pass necessary order rendering police help to the decree holder for recovering vacant and khas possession of the suit premises from the defendant/appellant. 16. It is made clear that in the event such deposits are made by the defendant/appellant, the plaintiffs/respondents will be at liberty to withdraw the same without furnishing any security. 17. The application for stay being CAN 6707 of 2015 is thus disposed of. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible. I agree.