Shakuntala Devi & Ors vs Arun Kumar Dutta Being Dead And
2021 Latest Caselaw 4266 Cal

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240   16.08.2021                        SA 442 of 2008
AN    Ct. No. 04
                                       SAT 283 of 2018
                         I.A. No.: CAN 1 of 2018 (Old No.: CAN 5946 of 2018)
                         I.A. No.: CAN 2 of 2018 (Old No.: CAN 6010 of 2018)


                                     Shakuntala Devi & Ors.
                                                vs.
                              Arun Kumar Dutta being dead and
                    represented by his heirs and legal representatives & Ors.


                   Mr. Anirban Mitra
                   Ms. Nipa Mullick
                   Mr. Amit Halder
                                                 ... for appellants/defendants


                             Mr. Mitra, learned advocate appears on behalf of

                   appellants and submits, his clients' appeal be admitted on

                   three questions of law. Firstly, so far as finding of default

                   is concerned, his clients had not filed original challans in

                   respect of deposit of rent for period January, 2011 to

                   March, 2011, being the fatal default to disentitle them

                   from protection against eviction. They applied to produce

                   additional evidence in appeal. This application was not

                   considered by the lower appellate Court.

                             Secondly, by drawing attention to pages 3 and 6

                   of judgment of the lower appellate Court he submits, his

                   clients had proved that respondents had alternative

accommodation within the radius. Lastly, requirement of

shop room by original plaintiff stood reduced on his

death. Inter alia, substituted plaintiff being the son does

not have such requirement.

On query from Court, Mr. Mitra submits, decree

on any one of the grounds in section 6 of West Bengal

Premises Tenancy Act, 1997 can be made. We assume

the ground of default ought to have been decided in

favour of appellants. That brings us to the other two

grounds.

So far as alternative accommodation within the

radius is concerned, relied upon passages in judgment of

the lower appellate Court are reproduced below: .

"... ... ... that Ld. Trial Court failed to con- sider that the plaintiff in his examination in chief did not deny the fact of their possession of four rooms at premises no. 10/5, Natabar Dutta Row, Kolkata-12 ... ... ...

... ... ... The defendant (DW-1) has faced cross examination extensively and intensively and the witness came to know from the K.M.C. that the landlords are the owners of premises no. 196A, Bidhan Sarani, Kolkata-6 and 10/5, Natabar Dutta Road, but failed to say whether those buildings have already been sold out or not ... ... ..."

The first passage cannot be relied upon as evidence or

proof of alternative accommodation admitted by plaintiffs

because in examination in chief, case is made out. Denial

comes in cross examination. It appears submission of

appellants regarding the examination-in-chief was that

there was no statement made by plaintiff regarding

possession of alternative accommodation. Appellants

could not demonstrate plaintiff had not denied same in

cross-examination. The second passage is clear

appreciation of evidence by the lower appellate Court

being that appellants/defendants could not positively

prove plaintiffs' are in possession of alternative

accommodation within the radius.

On the third question, we find trial Court had

found requirement of at least one room for business of

plaintiff no.1(b)-the son of deceased plaintiff. The lower

appellate Court found as follows:-

"On a perusal of the material on record, it is very clear that the plaintiffs' requirement of three bed rooms, kitchen room, drawing room, dinning room, guest room, servant's room, Thakurghar and as the plaintiff no.1(a) has at- tained marriageable age, so requirement of at least three rooms has to be considered because of the fact that the defendants have failed to prove that the plaintiffs have other suitable rea- sonable accommodation save and except suit premises. So, it appears that the plaintiffs have no other accommodation elsewhere other than the suit premises."

In view of above, no question arises on requirement of

original plaintiff, since deceased, as could not be pressed

at trial subsequently. Concurrent findings on fact of

requirement are not based on requirement of original

plaintiff, since deceased.

We do not find any question of law arises in the

second appeal. It is dismissed. Consequently, connected

applications are also dismissed.

Mr. Mitra submits there are errors in judgment

of the lower appellate Court. We make it clear that

correction of errors cannot be in second appeal.

(Arindam Sinha, J.)

(Saugata Bhattacharyya, J.)