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Calcutta High Court · body

2017 DIGILAW 60 (CAL)

. v. .

2017-01-10

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

body2017
JUDGMENT : Jyotirmay Bhattacharya, J. 1. This second appeal is directed against a judgment and decree passed by the learned Judge, IIIrd Bench, City Civil Court at Calcutta on 6th October, 2015 in Title Appeal No. 52 of 2010 reversing the judgment and decree dated 16th August, 2008 passed by the learned Judge, 5th Bench, Presidency Small Causes Court at Calcutta in Ejectment Suit No. 134 of 2003, at the instance of the defendants/appellants. 2. Let us now consider the merit of the appeal to find out 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 XLI Rule 11 of the Code of Civil Procedure or not. 3. Here is the case where we find the plaintiffs’ suit for eviction on the ground of reasonable requirement was decreed by the learned Trial Court in part. Though decree for cost was passed in the said suit, but no decree was passed for eviction of the defendants from the suit premises. The learned Trial Court held that the plaintiffs have not succeeded in proving their reasonable requirement of the suit premises. 4. Challenging the said judgment and decree of the learned Trial Court, a first appeal was filed by the plaintiffs/respondents before the learned first Appellate Court. Learned first Appellate Court was pleased to allow the said appeal by reversing the judgment and decree of the learned Trial Court. The legality and/or propriety of the said judgment passed by the learned first Appellate Court is under challenge in this second appeal at the instance of the defendants/appellants. 5. Let us now consider as to how far the learned first Appellate Court was justified in passing the decree for eviction against the defendants/appellants in the facts of the present case. 6. The plaintiffs filed the said suit for eviction of the defendants on the ground of reasonable requirement. They stated that they have two unemployed major sons. The eldest son is graduate. The youngest son is studying B.Com. The suit premises is a shop room situated on the ground floor of the suit building. The plaintiffs claim that they reasonably require the suit premises for their sons who intend to carry on business in the suit premises. Plaintiffs further claim that they have no other reasonably suitable alternative accommodation elsewhere. 7. The youngest son is studying B.Com. The suit premises is a shop room situated on the ground floor of the suit building. The plaintiffs claim that they reasonably require the suit premises for their sons who intend to carry on business in the suit premises. Plaintiffs further claim that they have no other reasonably suitable alternative accommodation elsewhere. 7. Defendant/father of the present appellants contested the said suit by filing written statement. Plaintiffs’ claim of the suit premises for reasonable requirement of their sons, was denied by the defendants. They prayed for dismissal of the suit. 8. Parties led evidence in support of their respective claims. It appears from the evidence adduced by the parties that both the sons of the plaintiffs are jointly running a guest house on the first floor of the suit premises. Plaintiffs claim that some differences developed between the two sons of the plaintiffs and as such, they are unable to carry on the existing business jointly. Plaintiffs further claim that the plaintiffs reasonably require the suit shop room for enabling their youngest son to introduce a new business therein. 9. Though the learned Trial Court refused to pass a decree for eviction by disbelieving the plaintiffs’ claim of reasonable requirement of the suit premises, but the learned first Appellate Court by believing this part of evidence of the parties, came to the ultimate conclusion that the plaintiffs reasonably require the suit premises for enabling their youngest son to run a business from the suit shop room independently. Learned first Appellate Court also held that the plaintiffs have no other reasonably suitable alternative accommodation elsewhere. Admittedly the entire ground floor consists of several shop rooms and all the shop rooms are occupied by different tenants. As such, the learned first Appellate Court reversed the findings of the learned Trial Judge and allowed the said appeal by passing a decree for eviction against the defendants/appellants on the ground of reasonable requirement of the plaintiffs. 10. Mr. Lahiri, learned advocate appearing for the defendants/appellants submits before us that prior to the filing of the present suit, plaintiffs earlier filed two other suits for evicting the defendants/appellants from the suit shop room. He has drawn our attention to the fact that the earlier two suits of the plaintiffs were dismissed for default. 10. Mr. Lahiri, learned advocate appearing for the defendants/appellants submits before us that prior to the filing of the present suit, plaintiffs earlier filed two other suits for evicting the defendants/appellants from the suit shop room. He has drawn our attention to the fact that the earlier two suits of the plaintiffs were dismissed for default. According to him, since the earlier two suits were dismissed, the third suit viz., the present suit out of which the instant appeal arises is not maintainable. He also argues that the third suit is barred by res judicata. Mr. Lahiri, thus, invites this Court to admit this appeal, so that the appeal is heard on merit. 11. Let us now consider the substance of such contention of Mr. Lahiri in the facts of the present case. 12. In order to attract the provision of Section 11 of the Code of Civil Procedure, the defendants must satisfy the Court that the identical issues which were involved in the earlier suits between the same parties concerning the selfsame subject matter, were decided finally in the earlier suits and as such, the identical issues between the same parties cannot be raised and/or decided in the subsequent suit because of bar of res judicata. 13. Since admittedly the earlier two suits of the plaintiffs/respondents were dismissed for default, no occasion ever arose for deciding any issue in those suits by the courts finally. As such, we hold that the principle of res judicata has no application in the facts of the present case. 14. Let us now consider the other part of submission of Mr. Lahiri who contended that the suit is barred under the provision of Order IX Rule 9 of the Code of Civil Procedure. 15. In order to attract the provision contained in Order IX Rule 9 of the Code of Civil Procedure, the defendants must satisfy the court that on the date when the earlier suits were fixed for hearing, the defendants appeared, but the plaintiffs did not appear and as a result, the suits were dismissed for default. This is not the case of the defendants as pleaded in the written statement. The defendants simply pleaded in the written statement that the earlier suits of the plaintiffs were dismissed for default. This is not the case of the defendants as pleaded in the written statement. The defendants simply pleaded in the written statement that the earlier suits of the plaintiffs were dismissed for default. Defendants have not stated in the written statement that on the date when the earlier suits were fixed for hearing, the defendants appeared in the said suit, but due to the default in appearance on the part of the plaintiffs, the suits were dismissed for default. Such being the position, we are unable to hold that the present suit is barred under the provision of Order IX Rule 9 of the Code of Civil Procedure. As such, we do not find involvement of any substantial question of law in this appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure. We, thus, decline to admit this appeal. 16. The appeal, thus, stands dismissed. 17. Since we have not admitted the appeal under the provision of Order XLI Rule 11 of the Code of Civil Procedure, no further order need be passed on the applications filed in connection therewith. The said applications are, thus, deemed to be disposed of.