Ct. 8 vs Must. Halima Khatoon & Ors
2023 Latest Caselaw 272 Cal

SAT 428 of 2014 Item-21.

10-01-2023

Mir Musharaf Ali alias Ekram & Ors.

  sg
             Ct. 8                                  Versus
                                       Must. Halima Khatoon & Ors.

The matter initially appeared in the warning list on 29 th

November, 2022 and thereafter transferred to the regular list on 5 th

December, 2022. There was a clear indication in the list that the

matter shall be transferred to the daily cause list on 5th December,

2022 and since then the appeal is appearing in the list.

The appeal is of the year 2014. The appeal is defective. In

spite of an order passed by a coordinate Bench on 28 th January,

2015, no attempt has been made to remove the defects.

The appellate decree dated 22nd April, 2014 affirming the

judgement and decree dated 12th March, 2007 is the subject matter

of challenge in this second appeal.

The suit for eviction was allowed by the trial court upon

considering the oral and documentary evidence.

We find from the judgment of the trial court that the

appellant was able to establish default. It appears that by an order

no. 43 dated 27-11-2000 the application under section 17(2) of the

West Bengal Premises Tenancy Act was disposed of on the basis

of the joint statement. However, the defendants did not file any

challan to show that they had complied with the order dated 27-

11-2000. As a result whereof, the defendant was hold to be a

defaulter and they were not entitled to get any protection under

section 17(4) of the West Bengal Premises Tenancy Act, 1956.

Moreover, on the basis of the report filed by the engineer

commissioner appointed by the trial court, the decree-holder shall

able to prove that the defendant was guilty of breach of clauses

'm', 'o' and 'p' of section 108 of the Transfer of Property Act. No

contrary evidence was placed before the court to show that the

report of the engineer commissioner was perverse. The plaintiffs

were also able to prove the subletting.

It appears from the evidence that one Mr. Aslam was found

to be in exclusive possession in the premises in question and on

such evidence, the inference of subletting can be established. The

plaintiffs were also able to prove reasonable requirement of the

suit premises having the requirement of him and his family

members. The trial court has taken into considered exhibits 3, 10,

11 and 12 to arrived at a finding that the plaintiffs require the suit

premises for his accommodation as the tenanted house is not

suitable for alternative accommodation.

The appeal was preferred after a delay of 1800 days. The

first appellate court dismissed the said petition on the ground that

the appellant was unable to show sufficient cause for not being

able to file the appeal within the period of limitation.

The trial court has discussed few judgments of the Hon'ble

Supreme Court and applied the said principle to the fact situation

in dismissing the said application. Even if we overlook the order

passed in the section 5 application, the detail evidence before the

trial court justify the decree in favour of the plaintiffs.

The second appeal stands dismissed at the admission stage.

(Uday Kumar, J.)                                   (Soumen Sen, J.)