Decree for eviction cannot be passed on the ground of post suit default under Section 7(3) of the West Bengal Premises Tenancy Act, 1997, and the appellate court should allow the application under Order 41, Rule 27 of the Code of Civil Procedure if the document is required for pronouncing judgment in the appeal.

Jyotirmay Bhattacharya, J.

Defect in the vakalatnama as pointed out by the Stamp Reporter in his report, is rectified with the leave granted by this Court.

2. Let the certified copy of the decree of the appeal court which is filed in court today, be kept with the record and the same be treated as a part of the memorandum of appeal.

3. Considering the valuation of the first appeal and the court fees paid thereon, we are of the view that the instant second appeal has been properly valued and sufficient court fees have been paid thereon.

4. Thus, the appeal is regularised.

5. This appeal will be heard on the following substantial questions of law.

I. Whether the learned courts below were justified in passing a decree of eviction against the defendants/appellants on the ground of post suit default or not?

II. Whether the learned first appellate court was justified in not considering the challans which were filed by the defendants/appellants before the learned first appellate court in exercise of its jurisdiction under Order 41, Rule 27 (1)(b) of the Code of Civil Procedure, while disposing of the appeal or not?

6. Since the plaintiffs/respondents are represented by Ms. Nandy, learned advocate, service of notice of appeal upon the respondents is dispensed with.

7. The appeal is thus, treated ready as regards service.

8. Since the pure question of law is raised in this appeal which in our view, can be decided even without the lower court records, the lower court records need not be called for the time being.

Re: CAN 11705 of 2016.

9. After the appeal was admitted for hearing, when the application for stay was taken up for consideration by this Court, we were requested by the learned counsel appearing for the parties to dispose of the appeal itself on merit on the basis of the materials available before us. We were also informed by the learned counsel of the parties that the materials which are relevant for the purpose of disposal of this appeal, are all available and as such, we have decided to dispose of the appeal itself on merit.

10. We have heard the learned counsel appearing for the parties on the merit of this appeal. We have considered the impugned orders and the relevant materials which are necessary for disposal of the appeal.

11. Let us now consider the merit of the instant appeal in the facts of the present case.

12. Here is the case where we find that an eviction suit was filed by the plaintiffs/landlord against the defendants/appellants on various grounds available under the West Bengal Premises Tenancy Act, 1997. The defendants appeared in the said suit and contested the same by filing written statement. Default in payment of rent was one of the grounds on which eviction was sought for by the plaintiffs/landlord against the defendants.

13. The parties led their evidence in support of their respective claims. Ultimately after considering the pleadings of the parties and their evidence, the learned trial court held that the plaintiffs could not prove the grounds of eviction save and except the ground of default in payment of rent. The learned Trial Judge held that after appearing in the said suit, the defendants filed an application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 and in pursuance of the order passed by the learned Trial Court in connection therewith, the defendants deposited all arrear rent. They also paid the current monthly rent upto April, 2010 regularly to the credit of the plaintiffs. The learned trial court ultimately found that the defendants have not deposited any challan showing the deposit of rent from the month of May, 2010. Accordingly, the learned Trial Judge held that the defendants are defaulter in payment of rent and passed a decree for eviction against the defendants/appellants on the ground of default.

14. Being aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Court, the defendants/appellants filed an appeal before the learned first appella