Calcutta High Court (Appellete Side)
Sri Mukul Chatterjee vs Sri Anup Kumar Dey And Others on 3 March, 2021
03.03.2021.
Item No. 11
S.A.T. 319 of 2019
With
CAN 1 of 2019 (Old No. CAN 11304 of 2019)
Sri Mukul Chatterjee
Vs.
Sri Anup Kumar Dey and others.
Mr. Asit Kumar Bhattacharya.
... for the appellant.
Leave is granted to the appellant to file the
certified copy of the judgment and decree of the trial
court. Let the same be kept on record.
Both the courts below have decreed the suit
against the defendants on the ground of default and
reasonable requirement under the provisions of the
West Bengal Premises Tenancy Act, 1956 (hereinafter
referred to as 'said Act').
The predecessor of the present
defendant/appellant was the tenant under the
plaintiffs/respondents and a suit for eviction was
filed on the above ground upon service of the
statutory notice provided under the said Act. The
original defendant appeared and filed an application
under Section 17(2) of the said Act raising a dispute
as to the relationship of landlord and tenant and
further filed the written statement with an intent to
contest the said suit.
Admittedly, during pendency of the suit the
original defendant died and the heirs and legal
representatives were substituted in his place.
Undisputedly, the substituted defendants did not
participate in the proceeding and the suit was posted
at the ex parte board. The trial court decreed the suit
ex parte against the substituted defendants with
categorical findings that the plaintiffs have been able
to establish the relationship of landlord and tenant
and the substituted defendants are the defaulters in
payment of rent and the plaintiffs also reasonably
require the suit premises. The said ex parte judgment
and decree is carried to a first appellate court and a
plea was taken that one of the substituted
defendants, namely, defendant no. 1(b), died during
pendency of the suit and, therefore, the decree is a
nullity.
We must record that there is no reflection of
such plea having taken and considered by the first
appellate court though the grounds of appeal
incorporated in the Memorandum of Appeal evince
such grounds to have been taken. What we perceived
from the judgment of the appellate court and the
submissions made by the appellant that such plea
was not agitated and naturally there was no occasion
on the part of the learned Judge in the court of
appeal below to consider the same.
A point might have been taken in the
Memorandum of Appeal but not pressed at the time
of argument and the decision rendered cannot be said
to be imperfect as the learned Judge is required to
return its findings on each of the grounds
incorporated in the Memorandum of Appeal.
Furthermore, the suit was decreed ex parte as the
substituted defendants did not participate therein.
Mere statement that one of the defendants expired
during pendency of the suit is not sufficient unless
the same is proved by convincing evidence.
Neither the death certificate nor any other
documents were produced before the court of appeal
below in support of such ground that the said
defendant died during pendency of the suit. The plea
of fact, which was available to the party, having not
taken before both the courts below, cannot be
permitted to be agitated before the second appellate
court. The only exception one can see that if a point
is a pure question of law not dependant upon any
facts to be proved, the same can be agitated for the
first time before the higher forum.
This is not a case of such nature. The first
appellate court was confining the scrutiny on the
basis of the evidence adduced by the
plaintiffs/respondents in support of the pleading and
if the court finds that such pleaded facts have been
proved by convincing evidence, the appellate court
has to travel over the circumference of such evidence
and the pleading and is not supposed to look into the
written statement filed by the defendants for the
purpose of finding out the genuinity of the case
pleaded therein.
There is a stark distinction between a pleading
and prove. The pleading is not substitute of prove. It
is an ordinary rule of evidence that the pleading has
to be proved by a litigant by giving evidence unless
the other side admits the claim made in the plaint for
the simple reason that the admission need not be
proved in law.
In absence of any evidence on the part of the
substituted defendants and that no argument has
been advanced before us that the material available
before the trial court was not sufficient enough to
justify the passing of the ex parte decree, we do not
feel that there is any substantial questions of law
involved in the instant appeal.
The appeal is dismissed under Order XLI Rule
11 of the Code of Civil Procedure.
In view of dismissal of the appeal itself, the
connected application being CAN 1 of 2019 (Old No.
CAN 11304 of 2019) has become infructuous and the
same is also dismissed.
There shall, however, be no order as to costs.
ab (Harish Tandon, J.)
(Kausik Chanda, J.)
