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Sikkim High Court
A.M.BHATTACHARJEE
Ram Chandra Shah - Appellant
Versus
Phup Tshering Bhutia - Respondent
Decided On : 04/20/1983
RENT CONTROL AND EVICTION ACT - SECTION 4, 12 - INSPECTION REPORT - SCOPE AND LIMITATIONS - EVIDENCE ACT - SECTION 3, 165 - CIVIL PROCEDURE CODE - ORDER 18 RULE 18 - INSPECTION BY JUDGE - PURPOSE AND LIMITATIONS - NATURAL JUSTICE - PRINCIPLES - APPLICATION IN INSPECTION PROCEEDINGS - JUDGMENT BASED SOLELY ON INSPECTION - LEGALITY - ERRORS AND IRREGULARITIES - EFFECT ON DECREE - SECTIONS 99, 167 - APPLICABILITY.
Fact of the Case:
The landlord filed a suit for eviction of the tenant from the suit premises on the grounds of bona fide requirement for his own use and occupation, unauthorized additions and alterations, and damages caused to the premises by the tenant. The trial court decreed the suit on the ground of bona fide requirement, relying on the inspection report prepared by the judge during the inspection of the suit premises and the premises occupied by the landlord. The tenant appealed against the decree.
Finding of the Court:
1. The trial court erred in relying solely on the inspection report in passing the decree of eviction, as the inspection was not conducted in accordance with the provisions of law and the principles of natural justice. 2. The inspection report was not made available to the parties for their comments, explanations, and arguments, and the judge exceeded the limits allowed under the law by forming views on important matters in dispute based on the inspection. 3. The evidence on record, without the aid of the inspection report, was sufficient to justify a decree for eviction on the ground of bona fide requirement.
Issues: 1. Whether the trial court erred in relying solely on the inspection report in passing the decree of eviction. 2. Whether the inspection report was properly conducted in accordance with the provisions of law and the principles of natural justice. 3. Whether the evidence on record, without the aid of the inspection report, was sufficient to justify a decree for eviction on the ground of bona fide requirement.
Ratio Decidendi: 1. A local inspection by a judge is permissible under Order 18 Rule 18 of the Civil Procedure Code for the purpose of appreciating or understanding the evidence on record. 2. The inspection report should be confined to a record of the conditions and other factual features of the place or thing inspected, and the judge should not take the role of an investigator or an inquiring officer. 3. The inspection report must be made available to the parties for their comments, explanations, and arguments, and the judge's failure to do so disentitles him from making any use of the inspection and its report. 4. A judgment cannot be legally founded, solely or even mainly, on such inspection because in that the Judge becomes some sort of a witness, but with the extraordinary privilege of not being subjected to examination or cross-examination by the parties. 5. The provisions of Order 18 Rule 18 of the Civil Procedure Code can be harmoniously construed with the principles of natural justice commanding not to rely on any matter without affording the party affected or likely to be affected reasonable opportunities to meet the same. 6. Errors and irregularities in the trial proceedings, including improper admission of evidence, will not be grounds for reversal of the decree if there is sufficient evidence on record to justify the decision.
Final Decision: The appeal was dismissed, and the decree passed by the trial court was confirmed. The appellant/defendant was granted 4 months' time from the date of the judgment to vacate the possession of the suit premises, failing which the decree-holder/respondent was at liberty to recover the possession by execution.
JUDGMENT:- In spite of the very strenuous argument advanced by Mr. N.B. Kharga, the learned advocate for the appellant, I have not been able to discover any good reason for allowing this Appeal by the tenant-appellant against the decree of eviction passed against him in this Suit, giving rise to this Appeal, and the decree under Appeal would therefore stand.
2. The suit filed by the landlord-respondent against the tenant-appellant was for the eviction of the latter from the suit premises on the grounds, firstly, that the landlord-respondent required the suit premises bona fide for his own use and occupation and, secondly, that the tenant made unauthorised additions to and alterations of the suit-premises and, thirdly, that the tenant also caused damages to the suit premises.
3. As to the ground that the tenant made unauthorised additions to and alterations of the suit premises, the learned Judge has observed that "it will have no bearing on the decision of this suit as it is now well settled that no ground of addition and alteration to the building has been contemplated in Sec.4 of the Gangtok Rent Control and Eviction Act, 1956". The learned Judge's reading of Section 4 of the Rent Control and Eviction Act is correct as that section does not provide additions and alterations made to the premises by the tenant without the approval of the landlord as a ground far eviction. But the learned Judge ought to have noted that in Sec. 12 of that very Act unauthorised additions and alterations made by the tenant have clearly been made a ground for eviction of the tenant. The learned Judge, however, has made no finding as to the alleged additions and alterations and Mr. B.C. Sharma, the learned advocate appearing for the landlord-respondent, also could not seriously urge that the trial Judge ought to have decreed this suit on that ground also. It is true, as pointed out by this Court in Nauranglall v. Basant Kumari (AIR 1981 Sikkim 22), the plaintiff-respondent, having obtained a decree of eviction in his favour, could have, under the provisions of O.41, R.22, Civil Procedure Code, sought to support the decree, even without preferring any cross-objection, also an the ground of such additions and alterations having been made by the tenant, even though the learned Judge has not decreed the suit on that ground. But as the learned counsel for the respondent has not seriously pressed the issue in view of insufficient evidence therefore, this aspect need not detain me.
4. As to the damages caused to the suit premises by the tenant-appellant, the plaintiff's own statement as P.W.4 is only to the effect that "the condition of the suit premises is hopeless at present, several cracks have developed on the floor and the walls, smokes have gathered all round the corner, all the rooms have become dark and wall paints have fallen down and water is leaking from the ceiling". Section 12 of the Rent Control and Eviction Act provides that "no tenant shall....damage the structure in any way, without the approval in writing of the landlord, failing which the landlord shall have the right to evict such tenant". It is, therefore, not the damaged condition of the premises, but the damages caused thereto by the tenant, which would justify a decree of eviction under that section. I would discuss and point out hereinafter as to whether the report of the inspection made by the learned trial Judge can be taken into consideration and, if so, to what extent. But even if the same is taken into consideration for the present, all that the report shows is that the premises are in a very bad condition with cracking walls and floor and leaking ceiling and all that. But there is no satisfactory evidence on record to show that all these were caused by or due to the defendant-tenant to attract the mischief of the provisions of Sec.12 commanding the tenant not "to damage the structure" on pain of ejectment. And before it can be inferred that the defendant being in occup
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