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2023 Supreme(Cal) 1518
IN THE HIGH COURT AT CALCUTTA
AJOY KUMAR MUKHERJEE, J.
Basanti Roy – Petitioner
Versus
Mihir Mitra and Others – Respondents
CO No. 1002 of 2018, CAN No. 1 of 2019 (Old CAN No. 160 of 2019)
Decided On : 17-03-2023
Advocate Appeared:
For the Petitioners: Kushal Chatterjee, Arunava Ganguly, Ajay Chowdhury
Headnote:(A) Constitution of India - Article 227 - West Bengal Premises Tenancy Act, 1997 - Ejectment and mesne profits - Application under Order XLI Rule 27 allowed for additional evidence related to reasonable requirement of landlord - The appellate court must ensure that new evidence is relevant to the existing issues in the case. (Paras 5, 9, 11)
(B) Appellate Procedure - The requirement of additional evidence in appeals is contingent upon its relevance and necessity for the court's judgment, ensuring no substantial cause is overlooked. (Paras 9, 11)
Facts of the case:
The petitioner challenged the order allowing additional evidence in an ejectment case, arguing that the opposite parties no longer qualified as tenants. The opposing party claimed the plaintiffs had alternative accommodations and sought to submit new evidence.
Findings of Court:
The court affirmed that additional evidence can be admitted if it directly affects the issues at hand, particularly concerning reasonable requirement of the landlord.
Issues: Whether additional evidence was permissible and its relevance to the case at hand.
Ratio Decidendi: The court held that the admission of additional evidence is justified where it relates directly to substantial issues like reasonable accommodation in ejectment matters.
Result: Application dismissed.
| Table of Content |
|---|
| 1. affidavit of service and application under article 227 (Para 1 , 2) |
| 2. ejectment suit details and appeal application (Para 3 , 4) |
| 3. arguments regarding additional evidence and accommodation (Para 5 , 6) |
| 4. counterarguments from plaintiffs on accommodation (Para 7 , 8) |
| 5. criteria for admitting additional evidence (Para 9 , 10 , 11) |
| 6. conclusion and directions for lower court (Para 12 , 13 , 14) |
JUDGMENT :
AJOY KUMAR MUKHERJEE, J.
1. Affidavit of service filed by the petitioner is taken on record.
2. Being aggrieved and dissatisfied with the order dated 21st February, 2018, passed by learned Civil Judge (Sr. Division), 10th Court at Alipore in Ejectment Appeal No. 35 of 2014 arising out of Ejectment Case No. 297 of 2004, the present application under Article 227 of the Constitution of India has been preferred.
3. Petitioner contended that the petitioner along with plaintiffs/proforma opposite parties filed a suit for ejectment, mesne profit against opposite parties herein, being aforesaid Ejectment Case No. 297 of 2004. Said suit was taken up for final hearing by the trial court and trial court was pleased to pass a judgment and decree directing the opposite parties herein to quit, vacate and deliver Khas peaceful vacant possession of the suit property in favour of the plaintiffs within three months.
4. Challenging aforesaid judgment and decree, the defendant no. 2/opposite party herein preferred the aforesaid appeal being Ejectment Appeal No. 35 of 2014. During pendency of the said appeal the appellant/opposite party herein filed an application under Order XLI Rule 27 of the Code of Civil Procedure for admission of the document annexed thereto as an additional evidence. The petitioner herein filed written objection against the said application. The appellate court by the impugned order was pleased to allow defendant/opposite party’s aforesaid application under Order XLI Rule 27 of the Code of Civil Procedure directing the appellant to file certified copy of the document annexed with the application.
5. Mr. Kushal Chatterjee, learned counsel appearing on behalf of the petitioner, submits that the court below ought to have heard the said application under Order XLI Rule 27 of the Code along with the ejectment appeal and not in an isolated manner. He further contended that the court below have failed to appreciate the fact that the documents sought to be relied upon is not at all germane to the present issue, in view of the fact that the opposite parties herein have ceased to be a tenant under the provision of the West Bengal Premises Tenancy Act, 1997 and as such the court below ought to have rejected the said application seeking additional evidence filed by the defendant/opposite party herein.
6. Learned advocate for the opposite party submits that plaintiff has sufficient alternative accommodation and the court below was pleased to overlook that the plaintiffs have not come to the learned court with clean hands as plaintiffs have alternative accommodation at Rustamji Street at 186-A, S. P. Mukherjee Road, consisting of 12 rooms and the Trial court did not give any credence to the report submitted by the learned Commissioner. Opposite party defendant further contended that the plaintiffs/owners constructed a G+5 storied building in the property situated at 15, Mondal Temple Lane, New Alipore with the assistance of M/s. S. R. Realtor Private Limited and sold some of their portion of the flats to prospective purchasers, keeping the rest for themselves. Accordingly opposite party contended that the plaintiffs/petitioners have sufficient accommodation in Kolkata within 10 KMs from suit property and the ground of reasonable requirement, which is the issue involved in the ejectment suit, ought to be demolished particularly in view of the fact that the aforesaid fact was intentional suppression by the plaintiff while dealing with the said suit. He further contended that the aforesaid facts were not within the knowledge of the
