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High Court Of Calcutta
Arun Kumar Mitra
NATIONAL RUBBER WORKS - Appellant
Versus
DAISY MANTOSH - Respondent
F. M. A. 468 Of 2001
Decided On : 12/11/2002
ARUN KUMAR MITRA, J. - [SUBJECT: Appeal against order of remand for local inspection commission and additional evidence in eviction suit] [ACT SECTION LIST: Order 41 Rule 26, Order 39 Rule 7, Order 41 Rule 27(1)(b) of the Code of Civil Procedure] [SUMMARY: The appellant challenged the order of remand passed by the lower appellate court, which set aside the judgment of the trial court dismissing the eviction suit and directed the trial court to appoint a local inspection commission and allow parties to adduce further evidence. The appellant contended that the appellate court should have considered the applications filed under Order 41 Rule 26 and Order 39 Rule 7 and should not have sent the matter back on remand. The court held that the appellate court erred in remanding the matter as it had the power to take additional evidence itself. The court also held that the ingredients of Order 41 Rule 27 of the Code of Civil Procedure were not fulfilled in this case, and therefore, the appellate court could not exercise power in this regard. The court upheld the judgment and decree passed by the trial court and dismissed the appeal.]
Fact of the Case:
The plaintiff filed a suit for ejectment and mesne profit against the defendant, alleging that the defendant was a tenant in the suit premises, had defaulted on rent, and had violated certain clauses of the Transfer of Property Act. The defendant contested the suit, claiming that the tenancy was governed by the Calcutta Thika Tenancy Act and that the plaintiff had not proved reasonable requirement or alternative accommodation. The trial court dismissed the suit, and the plaintiff appealed to the lower appellate court.
Finding of the Court:
The lower appellate court set aside the judgment of the trial court and remanded the matter for appointment of a local inspection commission and additional evidence. The appellate court observed that it was necessary to clear up the matter and enable it to come to a proper decision. The appellant challenged this order, arguing that the appellate court should have considered the applications filed under Order 41 Rule 26 and Order 39 Rule 7 and should not have sent the matter back on remand.
Issues: 1. Whether the appellate court erred in remanding the matter for local inspection commission and additional evidence. 2. Whether the ingredients of Order 41 Rule 27 of the Code of Civil Procedure were fulfilled in this case.
Ratio Decidendi: 1. The appellate court has the power to take additional evidence itself and should not have sent the matter back on remand. 2. The ingredients of Order 41 Rule 27 of the Code of Civil Procedure were not fulfilled in this case, and therefore, the appellate court could not exercise power in this regard.
Final Decision: The court upheld the judgment and decree passed by the trial court and dismissed the appeal. The court also refused the appellant's prayer for stay of operation of judgment and decree.
( 1 ) THIS appeal has been preferred challenging the order bf remand dated 6th August, 2001 passed by the learned Additional district Judge, Sixth Court at Alipore in Title Appeal No. 134/2001 setting aside the judgment dated 28th March, 2001 and decree dated 7th April. 2001 passed by the learned Civil Judge, Senior Division. Sealdah Court.
( 2 ) THE respondent herein being the plaintiff filed a suit for ejectment and mesne profit against the appellant. The case in abort as made out by the plaintiff in the plaint is inter alia as follows: the defendant (appellant herein) entered into possession of the suit premises which is a twin Nissan Shed with adjacent land measuring about 28 cottahs in total being premises No. 21/1. Canal Circular Road, calcutta-54. The defendant was inducted by J. Mantosh (now deceased)as tenant at a monthly rental of Rs. 750/- payable according to English calendar, J. Mantosh was one of the owners of the said premises along with the plaintiff Daisy Mantosh. The plaintiff is the executor of the last will and testament of J. Mantosh (now deceased) The defendant is a defaulter in respect of payment of rent of the suit premises since October, 1988 to April, 1995. Mr. Charls Mantosh is one of the beneficiaries of the last Will and testament of late J Mantosh and is running business of manufacturing air-condition machines in the small scale sector on a small scale at Premises No. 302/1, A. P. C. Road, Calcutta-9. The said shed has an area of about 1000 sq. ft. Mr. Charls Mantosh requires to expand his business and he requires 7000 sq. ft. . to run his factory in a commercially viable manner. The plaintiff as such reasonably requires the suit premises for use and occupation and the plaintiff is not in possession of any other reasonably suitable accommodation.
( 3 ) THE defendant has done and is doing acts in violation of the provisions of clauses (rn), (o) and (p) of Section 108 of Transfer of Property act. The notice dated March 9, 1995 was served under Section 13{g) of the West Bengal Premises Tenancy Act and Section 106 of the Transfer of Property Act.
( 4 ) THE defendant contested the suit by filing written statement The case as made out by the defendant in the written statement is to the extent inter alia that the plaintiff let out vacant land measuring more or less 28 cottahs severally from time to time and allowed the defendant to construct structure thereon for running business and the tenancy commenced in the year 1950. The defendant was also a tenant in respect of Tin Shed and for the vacant land and shed single bill used to be granted @ Rs. 750/- consolidated. The plaintiff settled rent of 28 cottahs to the defendant as that, of tenant in respect of land which comes within the mischief of Calcutta Thika Tenancy Act, 1950 and subsequent amendments made thereto. The plaintiffs predecessor filed Title Suit No. 722/1954 in the First Court of Munsif, Sealdah. The said suit was ultimately compromised in appeal. Therefore, it is not proved that the defendant's tenancy as a whole is governed under, West Bengal Premises Tenancy Act, 1956. The defendant is not bound to pay the monthly, rent in respect of the tenancy of land where construction have been made by the defendant. The amalgamation of both the tenancy is not maintainable and claiming of rent in respect of open land is therefore barred. The defendant filed applications raising dispute under Sections 17 and 17 (A) and (B) of the West bengal Premises Tenancy Act, 1956. The defendant in the written statement denied that Charls Maniosh is beneficiary of the Will or he is carrying on any business at Premises No. 302/1, A. P. C. Road, Calcutta-9. The defendant also denied that he requires accommodation of 7000 sq ft. of space. The defendant in the written statement also stated that said Charls Mantosh has got several landed properties in Calcutta which the plaintiff has suppressed. The defendant further denied the allegation of vio
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