Pintu Mondal vs Somnath Dey & Ors
2021 Latest Caselaw 5203 Cal

IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION APPELLATE SIDE

Present:

The Hon'ble Justice Hiranmay Bhattacharyya

C. O. No. 1393 of 2021

Pintu Mondal

-Vs.-

Somnath Dey & Ors.

For the petitioners : Mr. Asis Ch. Bagchi, Advocate Mr. Chirantan Sarkar, Advocate

For the opposite parties : Mr. Satrajit Sinha Roy, Advocate

Heard on : 28.09.2021

Judgement on : 28.09.2021

Hiranmay Bhattacharyya, J.:

Leave is granted to the learned advocate on record for the

petitioner to amend the Cause Title of the instant Civil Order,

insofar as the description of the parties is concerned, here and

now.

The defendant in a suit for eviction under Section 6 of the

West Bengal Premises Tenancy Act, 1997 has filed the instant

application under Article 227 of the Constitution of India

challenging a portion of the order no. 45 dated July 13, 2021

passed by the learned Civil Judge, Junior Division, 1st Court,

Katwa in Title Suit No. 80 of 2016.

By the order impugned, the learned Trial Judge rejected

the application under Order VI Rule 17 of the Code of Civil

Procedure filed by the defendant/petitioner herein for

amendment of the written statement. However, liberty was

granted to the defendant to file the same after curing the defects.

Being aggrieved by the portion of the order granting liberty

to the defendant to file a fresh application after curing the

defects, the plaintiff/ opposite party no. 1 herein filed a Civil

Order No. 1302 of 2021. The said Civil Order was dismissed by a

coordinate Bench by an order dated July 27, 2021.

Subsequently, the present petitioner filed the instant application

challenging the other portion of the order whereby the prayer for

amendment of the written statement was rejected.

Mr. Bagchi, the learned senior advocate for the petitioner

submits that the order passed by the learned Trial Judge on July

13, 2021 did not merge with the order dated July 27, 2021

passed in CO 1302 of 2021 as the same was dismissed at the

threshold without even issuing any notice or a rule upon the

petitioner herein.

In support of such submission he relied upon a judgment

of the Hon'ble Supreme Court of India in the case of Shankar

Ramchandra Abhyankar Vs. Krishnaji Dattatraya Bapa, reported

at AIR 1970 SC 1.

He further submits that the challenge in the earlier Civil

Order was restricted only to the issue of grant of liberty to the

defendant to file a fresh application and there was no occasion

on the part of the coordinate Bench to enter into the issue with

regard to the prayer for amendment of written statement. Thus it

is submitted that the instant Civil Order is maintainable.

Insofar as the prayer for amendment is concerned, Mr.

Bagchi submits that the application for amendment of the

written statement was filed immediately after it came to the

knowledge of the petitioner that a tenant has vacated the shop

room which is a part of the same building and surrendered the

possession in favour of the landlord during the pendency of the

suit. Mr. Bagchi submits that such subsequent event ought to

have been allowed by the learned Trial Judge, this being a suit

for eviction, inter alia, on the ground of reasonable requirement.

Mr. Sinha Roy, the learned advocate for the opposite party

no. 1 submits that the instant application is not maintainable in

view of the fact that the order impugned was assailed by the

plaintiff by filing a Civil Order No. 1302 of 2021 and a coordinate

Bench after considering the order impugned dismissed the said

application. According to Mr. Sinha Roy, the order passed by the

learned Trial Judge merged into the order passed by the

coordinate Bench on July 27, 2021 in CO 1302 of 2021 and as

such the selfsame order cannot be subjected to a fresh challenge

at the instance of the defendant. He further submits that the

instant Civil Order is also barred by the principles of res judicata

or constructive res judicata as the issues decided by the

impugned order has already been finally and conclusively

decided in CO 1302 of 2021..

He also submits that when the coordinate Bench

exercising the supervisory jurisdiction under Article 227 of the

Constitution of India has decided the matter, the same cannot be

reopened again at the instance of the present petitioner by filing

a separate application. Thus according to him, the present

application under Article 227 of the Constitution of India is not

maintainable.

Mr. Sinha Roy submits that the petitioner herein filed this

application for amendment only for the purpose of delaying the

suit for eviction as the said application was filed intentionally by

the defendant after the closure of evidence of the sole witness of

the plaintiff. Mr. Sinha Roy relies upon the judgment in the case

of Surya Dev Rai Vs. Ram Chander Rai & Ors., reported at (2003)

6 SCC 675 in support of his argument that the High Court can

exercise jurisdiction under Article 227 to keep the subordinate

Courts within the bounds of their jurisdiction.

I have heard the learned advocate for the parties and

perused the materials on record.

Since an objection as to the maintainability of the

application under Article 227 of the Constitution of India has

been raised by the opposite party no. 1 herein, I propose to

decide such issue before taking up the other issue.

It is evident from the order dated July 27, 2021 passed by

the coordinate Bench in CO 1302 of 2021 that the challenge was

with regard to granting liberty to the petitioner herein to file a

fresh amendment application on the ground that there was a

technical defect in the amendment application already filed by

the petitioner herein.

After hearing the learned advocate for the petitioner and

without even issuing notice or a rule upon the petitioner herein

who was the opposite party in CO No. 1302 of 2021, the

coordinate bench dismissed the said Civil Order.

The order impugned has two parts. The first part relates to

rejection of the application for amendment of the written

statement. By the other part, liberty was granted to the

defendant to file a fresh application for amendment. The

landlord/plaintiff/opposite party no. 1 herein who was the

petitioner in CO 1302 of 2021 could not be said to be a person

aggrieved insofar as the rejection of the application for

amendment of written statement is concerned. He was only

aggrieved against granting liberty in favour of the defendant to

file a fresh application and accordingly assailed the said order

only on such ground.

The order dated July 27, 2021 has to be read in the light of

the challenge thrown to the impugned order and the affirmation

of the order no. 45 dated July 13, 2021 is to be construed as an

affirmation of the portion of the said order whereby liberty was

granted to the defendant to file a fresh application. The issue of

amendment of written statement was not directly and

substantially in issue in CO 1302 of 2021. The said issue being

decided in favour of the plaintiff by the learned Trial Judge, the

same could not be a ground of attack in the earlier Civil Order.

Since no notice was issued to the defendant in the earlier Civil

Order and no challenge being thrown earlier to the issue of

amendment, the same also could not have been taken as a

ground of defence by the plaintiff in the earlier Civil Order.

For the reasons as aforesaid, this Court is unable to accept

the argument of the plaintiff/opposite party no. 1 that the

instant Civil Order is barred by the principles of res judicata or

constructive res judicata. Furthermore, since the Civil Order No.

1302 of 2021 was dismissed without issuing any notice upon the

opposite party of the said civil order, the order no. 45 dated July

13, 2021 passed by the learned Trial Judge cannot be said to

have merged with the order passed in CO 1302 of 2021 in view of

the judgment in the case of Shankar Ramchandra Abhyankar

(Supra) wherein it has been held that a judgment pronounced by

the High Court in the exercise of its appellate or revisional

jurisdiction after issue of a notice and a full hearing, in the

presence of both the parties would replace the judgment of the

lower Court thus constituting the judgment of the High Court the

only final judgment to be executed in accordance with law by the

Court below.

In the instant case no notice or rule was issued upon the

defendant in the earlier Civil Order and the same was dismissed

only upon hearing the plaintiff. Thus, the impugned order cannot

be said to have merged into the order dated July 27, 2021, in

view of the judgment of the Hon'ble Supreme Court of India in

Shankar Ramchandra Abhyankar (Supra).

There is, however, no quarrel to the proposition of law laid

down by the Hon'ble Supreme Court in Surya Dev Rai (Supra).

But the said decision is of no assistance to the plaintiff/opposite

party no. 1 in the instant case.

Thus, in the considered opinion of this Court, the instant

civil revisional application is maintainable at the instance of the

defendant insofar as the rejection of the prayer for amendment of

the written statement is concerned.

The instant suit is for eviction of a premises tenant, inter

alia, on the ground of reasonable requirement. In a suit for

eviction filed under Section 6(1)(d) of the West Bengal Premises

Tenancy Act, 1997 the burden of proof lies upon the

landlord/plaintiff to prove that the premises is reasonably

required for his own occupation and also that the landlord is not

in possession of any suitable accommodation within the same

municipal corporation or municipality or in any other area within

10kms. from such premises where the Act extends.

In the instant case, the defendant attempted to incorporate

the fact that during pendency of the suit one of the tenants of the

said building has vacated and delivered possession in favour of

the plaintiff/landlord by way of amendment of his pleadings.

In the application, it has been stated that such application

was filed immediately after coming to know of such fact. The

plaintiff/landlord contested the said application by filing a

written objection specifically denying the fact that one of the

tenants have vacated the suit property during the pendency of

the said suit.

The learned Trial Judge rejected such application only on

the ground that specific date, month or year of such vacation

and acquirement of possession of the room has not been

specifically stated in the said amendment application. In order to

get a decree for eviction on the ground of reasonable

requirement, the onus lies upon the plaintiff to prove that he is

not in possession of any other alternative, reasonable, suitable

accommodation. The defendant has only tried to bring to the

notice of the Court of fact that one of the tenants have in the

meantime vacated. In order to contest the suit for eviction on the

ground of reasonable requirement the tenant has to show that

the accommodation available to the plaintiff is sufficient. For

such purpose the defendant filed the amendment application.

The exact date, month and year when the possession was

allegedly handed over to the landlord is not necessary. The only

fact relevant is whether the landlord reasonably requires the suit

premises.

The truth and veracity of such claim of the tenant is to be

decided after a full fledged trial. It is well-settled that pleading is

not a substitute of proof. Even if, the said fact is allowed to be

incorporated in the said pleadings, the defendant has to prove

such fact and it is open to the plaintiff to disprove such

allegations in the pleadings in accordance with law.

The proposed amendment is a subsequent event. As such

the proviso to Order VI Rule 17 of the Code of Civil Procedure

shall not be a bar in allowing such prayer for amendment in the

instant case. The proposed amendment is necessary for the

purpose of deciding the real controversies between the parties.

The application for amendment of written statement filed

by the petitioner herein on June 21, 2021, stands allowed. The

defendant/petitioner herein shall file the amended written

statement positively on or before October 7, 2021.

Since in the meantime the evidence of the plaintiff has

been closed, the plaintiff is at liberty to recall the witness for the

purpose of giving evidence to contradict the statements made by

the defendants in the amended written statement after the

amended written statement is filed by the petitioner herein before

the court below.

The revisional application being CO 1393 of 2021 thus

stands allowed. The learned Trial Judge failed to exercise the

jurisdiction vested in him by law. The impugned order no. 45

dated July 13, 2021 insofar as the rejection of the application for

amendment of written statement is concerned suffers from

infirmity and the same is accordingly set aside.

Since this is a suit for eviction, inter alia, on the ground of

reasonable requirement filed in the year 2016, the learned Civil

Judge, Junior Division, 1st Court, Katwa is requested to dispose

of Title Suit No. 80 of 2016 as expeditiously as possible and

preferably by the end of March 2022 without granting any

unnecessary adjournments to either of the parties.

Urgent photostat certified copy of this order, if applied for,

be supplied to the parties on priority basis upon compliance of

all requisite formalities.

(Hiranmay Bhattacharyya, J.)

S. Banerjee