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2020 Supreme(Cal) 185
IN THE HIGH COURT OF CALCUTTA
Shivakant Prasad, J.
Rina Dey - Appellant
Versus
S. Jagannath Rao - Respondent
Second Appeal No. 135 of 2017
Decided On : 13-03-2020
Partha Pratim Mukhopadhyay, Advocate, Amitava Pain, Advocate, Subhrangshu Dutta, Advocate, Nilmoni Das, Advocate, Baisali Ghoshal, Advocate, Niraj Kumar Singh, Advocate, Rituparna Saha, Advocate
The High Court emphasized the authority of the High Court to determine any issue necessary for the disposal of the appeal, even if not determined by the lower Appellate Court, as per Section 103 of the Code of Civil Procedure.
Headnote:
Licensee - Eviction Suit - Code of Civil Procedure - Order 41 Rule 25
Fact of the Case:
The plaintiff filed a suit for eviction of the defendant as a licensee to the suit premises. The defendant contested the suit, claiming to be an irrevocable licensee due to financial assistance provided for construction.
Finding of the Court:
The trial Court decreed the suit in favor of the plaintiff for recovery of possession. The Appellate Court set aside the judgment and remanded the case for fresh decision on the issue of irrevocable license. The High Court allowed the appeal, setting aside the Appellate Court's judgment and restoring the trial Court's decree.
Issues: The main issue was whether the Appellate Court erred in remanding the case for fresh decision on the issue of irrevocable license when evidence was available on record for a decision. Another issue was whether non-framing of issue as to irrevocable license was fatal to the trial.
Ratio Decidendi: The High Court held that the Appellate Court's remand was unnecessary and violated Order 41 Rule 24 of the Code of Civil Procedure. It emphasized that the High Court is entitled to determine any issue necessary for the disposal of the appeal, even if not determined by the lower Appellate Court.
Final Decision: The High Court allowed the appeal, setting aside the Appellate Court's judgment and restoring the trial Court's decree for eviction of the defendant.
Key Points: - The High Court has the authority to determine any issue necessary for the disposal of the appeal if the evidence is sufficient, even if not determined by the lower Appellate Court (!) (!) . - The Appellate Court's remand was unnecessary and violated Order 41 Rule 24 of the Code of Civil Procedure because evidence on record was sufficient for the High Court to decide the case (!) (!) . - A licensee becomes irrevocable only if the license is coupled with a transfer of property or the licensee has executed permanent work and incurred expenses; otherwise, the license remains revocable (!) . - Non-framing of issues is not fatal when parties understood the real issue and adduced evidence, and the High Court can frame issues and decide on merits under Section 103 CPC (!) (!) . - The trial Court's decree of eviction was restored because the defendant failed to prove irrevocable license and admitted the plaintiff's ownership, making the appellate remand bad in law (!) (!) .
What is the scope of the High Court's authority to determine issues in a second appeal under Section 103 of the Code of Civil Procedure?
Whether the High Court erred in remanding a case to the trial court for fresh decision when evidence was already on record?
What is the test for determining whether a licensee has become an irrevocable licensee under property law principles?
JUDGMENT
Shivakant Prasad, J. - This appeal is directed against the judgment and decree dated 29th January, 2015 passed by learned District Judge at Howrah in Title Appeal No. 37 of 2014 reversing the judgment and decree passed on 10.02.2014 by learned Civil Judge (Junior Division), 6th Court, Howrah in Title Suit No. 92 of 2011, inter alia, on the grounds that the Court below erred in reversing the judgment and decree of the Trial Court by remanding the suit to Trial Court for decision afresh on the basis of materials already on record when materials on record were sufficient to arrive at a decision of its own in terms of Order 41 Rule 25 of the Code of Civil Procedure and the Court of Appeal below has committed a substantial error of law in reversing the judgment and decree of the trial Judge when non framing issue as to whether the defendant was irrevocable licensee will not be fatal when parties knew the real issue involved in the case and as such the order of remand is bad in law; particularly, when parties have understood their case and for the purpose of proving and contesting defence of irrevocable license had adduced evidence, therefore, the findings of the Appellate Court with regard to acceptance of defence case of irrevocable license are totally perverse and is liable to be set aside.
2. Factual Matrix leading to this Second Appeal is that the plaintiff instituted a suit for eviction of the defendant as the licensee to the suit premises. The plaintiff became the owner of 'A' schedule suit property by virtue of a registered deed of sale executed by Sri Ajay Kr. Bag and Smt. Sangita Bag dated 29.9.2008 and the plaintiff mutated her name in LRROR recorded in the new Khatian No. 6064 and she raised pucca double storied building on the purchased land and started to reside thereat with her family since 28th February, 2010.
3. The plaintiff's further case is that the defendant a colleague of her husband and an employee of South Eastern Railways posted in Grade-I (CNW), in the office of Divisional Mechanical Engineer, Santragachi Loco was inducted as a licensee in respect of the first floor of the suit premises on his approach made sometime in the month of July 2010 and on his representation that he would soon be allotted his service quarter and would shift over there and as such the defendant was allowed to remain in permissive occupation in respect of the entire first floor comprising two rooms, kitchen, veranda, bath and privy as well as one room on the second floor without any license fee.
4. After expiry of a month, plaintiff requested the defendant to quit and vacate the suit premises but on the request of the defendant, he was allowed tenure of such license in September, 2010 and thereafter, the defendant was requested by the plaintiff and her husband to quit and vacate the licensed premises but he refused to do so and held out threat with dire consequences for which the plaintiff lodged a General Diary with Jagacha Police Station vide G.D. Entry No. 226 dated 05.09.2010 and a proceeding under Section 107 of the Cr.P.C. in Miscellaneous Petition No.1763 of 2010 was initiated against the defendant in the Court of Executive Magistrate, 2nd Court, Howrah.
5. The plaintiff revoked the license of the defendant w.e.f. 03.06.2011 by sending a notice dated 18.05.2011 through Sri Arindam Ganguly, Advocate under registered post with A.D. to the defendant but of no effect. Hence, the suit.
6. The defendant-respondent contested the suit by filing a written statement denying all the materials particulars made in the plaint and contended, inter alia, that the defendant is not a mere licensee, rather he continued and is still continuing his possession in the suit premises.
7. Specific case of the defendant is that the husband of the plaintiff made a proposal to the defendant for helping him by giving a sum of money as friendly accommodation loan on account of purchasing a piece of land for residential house of his own and the defen
