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IN THE HIGH COURT AT CALCUTTA
TARUN KUMAR GUPTA, J.
N. M. Dassi & Company
Vs.
KALIDAS BASAK
C.O. No. 95 of 2010
Decided on : 25.9.2013
ORDER 41 RULE 27 OF THE CODE OF CIVIL PROCEDURE - ADMISSIBILITY OF ADDITIONAL EVIDENCE - ORDER 41 RULE 27 CPC - SUMMARY
Fact of the Case:
The petitioner-tenant filed an application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure alleging subsequent events that satisfied the requirement of the opposite party-landlord. The learned lower appellate Court rejected the application on the ground that those alleged subsequent events were not really subsequent events and that those were taken care of by the learned trial Court in his judgment.
Finding of the Court:
The court held that the learned lower appellate Court considered the materials already on record vis-à-vis the materials sought to be brought on record through evidence and came to a finding of fact that the alleged constructions were already taken note by the learned trial Court and hence the same was not subsequent events for which the application under Order 41 Rule 27 of the Code of Civil Procedure should be invoked.
Issues: Whether the learned lower appellate Court should have taken up hearing of said application disclosing alleged subsequent events before taking up hearing of the appeal or should have taken up the hearing of the same along with the appeal.
Ratio Decidendi: The court relied on the judgments in Union of India v. Ibrahim Uddin, North Eastern Railway Administration, Gorakhpur v. Bhagwan Das, State of Rajasthan v. T.N. Sahani and Ors, Smt. Sakuntala Chakraborty v. Shiba Prosad Roy and Anr., Bangshidhar Pal v. Anil Kumar Pal, Gurdev Singh v. Megna Ram, Rabin De v. Sm. Bimala Roy, and Bela Mondal & Ors. v. Badresaman Khan & Ors. to hold that the learned lower appellate Court was correct in rejecting the application under Order 41 Rule 27 of the Code of Civil Procedure as the alleged subsequent events were not really subsequent events and that those were taken care of by the learned trial Court in his judgment.
Final Decision: The court dismissed the revisional application with the observations that the petitioner-tenant will not be prejudiced in any way as he will get an opportunity to challenge the same in the second appeal if the decision of the first appellate Court goes against him.
Tarun Kumar Gupta, J.–This is an application under Article 227 of the Constitution of India directed against Order No. 18 dated 18th November, 2009 passed by the learned Judge XIIIth Bench, City Civil Court at Calcutta in Title Appeal No. 57 of 2008 arising out of Ejectment Suit No. 864 of 2000.
2. It is the case of the petitioner-tenant that the opposite party-landlord filed a suit for eviction wherein the reasonable requirement of the suit premises situated in the ground floor, for running business of his son was one of the grounds. It is further case that the suit was decreed by the learned trial Court allowing said claim of reasonable requirement of the plaintiff-landlord. The petitioner-tenant, accordingly, preferred an appeal being Title Appeal No. 57 of 2008. During pendency of said appeal he filed an application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure for taking note of some subsequent events viz. acquiring of four rooms in the first floor by the plaintiff-landlord through eviction of another tenant, construction of a staircase and having a room beneath the staircase to satisfy his requirement. Accordingly, the petitioner/defendant-tenant wanted to adduce further evidence in support of said subsequent events.
3. The petitioner-tenant also filed one application under Order 39 Rule 7 of the Code of Civil Procedure for inspection and taking note of said new constructions as alleged in his application under Order 41 Rule 27 of the Code of Civil Procedure.
4. By the order impugned, learned lower appellate Court rejected both the applications. Hence is this case.
5. Learned advocate, Mr. Ashok Chakraborty appearing for the petitioner-tenant submits that the order impugned is not sustainable in law as the learned lower appellate Court disposed of the application under Order 41 Rule 27 of the Code of Civil Procedure in piecemeal before taking up hearing of the appeal. According to him, for proper appreciation of the averments made in said application under Order 41 Rule 27 of the Code of Civil Procedure, learned trial Court should have taken up hearing of the same along with the hearing of the appeal. In support of his contention, he has referred case laws reported in 2013(2) CHN (HC) 123 (Union of India Vs. Ibrahim Uddin), (2008) 8 SCC 511 [North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (dead) by LRS], (2001) 10 SCC 619 (State of Rajasthan Vs. T.N. Sahani and Ors), AIR 1998 Calcutta 29 (Smt. Sakuntala Chakraborty, Vs. Shiba Prosad Roy and Anr.) and 1994(2) CLJ 114 (Bangshidhar Pal Vs. Anil Kumar Pal).
6. Mr. Chakraborty next submits that the other petition under Order 39 Rule 7 of the Code of Civil Procedure which was dependent on earlier petition under Order 41 Rule 27 of the Code of Civil Procedure was also rejected by the Court on account of rejection of the petition under Order 41 Rule 27 of the Code of Civil Procedure. He submits that the order impugned should be set aside and that the learned lower appellate Court should be directed to take up these two applications at the time of hearing of the appeal.
7. Learned Senior advocate, Mr. Jiban Ratan Chatterjee, appearing for the opposite party-landlord, on the other hand submits that the learned lower appellate Court rejected said application under Order 41 Rule 27 of the Code of Civil Procedure as the alleged events were not subsequent events and were taken into consideration by the learned trial Court at the time of passing of the decree of eviction on the ground of reasonable requirement. He next submits that there is no legal bar to hear out an application under Order 41 Rule 27 of the Code of Civil Procedure by the Court before taking up hearing of the appeal. In support of this contention, he has referred a case law reported in 2009(4) CHN 189 (Bela Mondal & Ors. Vs. Badresaman Khan & Ors.) which in turn relied on a Supreme Court judgment reported in AIR 1997 SC 3572 (Gurdev Singh Vs. Megna Ram). He next su
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