(Ad 77) vs Sri. Mihir Mitra & Ors
2023 Latest Caselaw 1782 Cal

Court No. 652                      CO 1002 of 2018

17.03.2023                          Smt. Basanti Roy
(AD 77)                                    Vs.
                                 Sri. Mihir Mitra & Ors.
(S. Banerjee)

                                         with
                                     CAN 1 of 2019
                                 (Old CAN 160 of 2019)




                     Mr. Kushal Chatterjee
                     Mr. Arunava Ganguly
                     Mr. Ajay Chowdhury
                                                      ... for the petitioner



                      Affidavit of service filed by the petitioner is taken

                on record.


                      Being aggrieved and dissatisfied with the order

                dated 21st February, 2018, passed by learned Civil

                Judge (Sr. Division), 10th Court at Alipore in Ejectment

                Appeal No. 35 of 2014 arising out of Ejectment Case No.

                297 of 2004, the present application under Article 227

                of the Constitution of India has been preferred.


                      Petitioner contended that the petitioner along

                with plaintiffs/proforma opposite parties filed a suit for

                ejectment, mesne profit against opposite parties herein,

                being aforesaid Ejectment Case No. 297 of 2004. Said

                suit was taken up for final hearing by the trial court

                and trial court was pleased to pass a judgement and

                decree directing the opposite parties herein to quit,

                vacate and deliver Khas peaceful vacant possession of
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the suit property in favour of the plaintiffs within three

months.


      Challenging aforesaid judgement and decree, the

defendant no. 2/opposite party herein preferred the

aforesaid appeal being Ejectment Appeal No. 35 of 2014.

During    pendency       of   the   said    appeal    the

appellant/opposite party herein filed an application

under Order XLI Rule 27 of the Code of Civil Procedure

for admission of the document annexed thereto as an

additional evidence. The petitioner herein filed written

objection against the said application. The appellate

court by the impugned order was pleased to allow

defendant/opposite party's aforesaid application under

Order XLI Rule 27 of the Code of Civil Procedure

directing the appellant to file certified copy of the

document annexed with the application.


      Mr. Kushal Chatterjee, learned counsel appearing

on behalf of the petitioner, submits that the court below

ought to have heard the said application under Order

XLI Rule 27 of the Code along with the ejectment appeal

and not in an isolated manner. He further contended

that the court below have failed to appreciate the fact

that the documents sought to be relied upon is not at

all germane to the present issue, in view of the fact that

the opposite parties herein have ceased to be a tenant

under the provision of the West Bengal Premises
                      3




Tenancy Act, 1997 and as such the court below ought

to have rejected the said application seeking additional

evidence filed by the defendant/opposite party herein.


       Learned advocate for the opposite party submits

that plaintiff has sufficient alternative accommodation

and the court below was pleased to overlook that the

plaintiffs have not come to the learned court with clean

hands as plaintiffs have alternative accommodation at

Rustamji Street at 186-A, S. P. Mukherjee Road,

consisting of 12 rooms and the Trial court did not give

any credence to the report submitted by the learned

Commissioner.     Opposite    party     defendant     further

contended that the plaintiffs/owners constructed a G+5

storied building in the property situated at 15, Mondal

Temple Lane, New Alipore with the assistance of M/s. S.

R. Realtor Private Limited and sold some of their portion

of the flats to prospective purchasers, keeping the rest

for themselves. Accordingly opposite party contended

that    the    plaintiffs/petitioners    have       sufficient

accommodation in Kolkata within 10 KMs from suit

property and the ground of reasonable requirement,

which is the issue involved in the ejectment suit, ought

to be demolished particularly in view of the fact that the

aforesaid fact was intentional suppression by the

plaintiff while dealing with the said suit. He further

contended that the aforesaid facts were not within the

knowledge of the defendants/opposite parties and as
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such they could not produce the same before the court

below. Now they have learnt about the said alternative

accommodation of the plaintiffs and as such they have

sought for filing the certified copy of the deed by way of

an additional evidence, which the trial court rightly

allowed and as such the order impugned does not call

for any interference.


      Considered the submissions made by both the

parties. At the very outset it is to be made clear that it

has not been appraised herein as to whether issue

pertaining to Section 2(g) of the West Bengal Premises

Tenancy Act, 1997 was raised and/or considered by the

Trial court or not. Be that as it may, from the

application filed under Order XLI Rule 27, it appears

that defendant/tenant has taken a specific plea of

suppression of fact by plaintiff while obtaining decree,

contending that plaintiffs have constructed G+5 storied

building at 15, Mandal Temple Lane, New Alipore and

sold some of their portion of the flats to prospective

purchasers keeping the rest for themselves and by way

of additional evidence they want to brought before the

court, certified copy of one such deed executed by

plaintiffs in favour of one of such purchasers in respect

of a flat in the building at 15, Mandal Para Lane. It is

appellant's further case that he came to know about

such fact during pendency of the said appeal.
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      Plaintiffs/respondents    dealt    with   the   said

allegation stating that said property was developed

much after filing of the suit and the proceeds of the sale

was used for their personal requirement.

Now in view of the case of Union of India -Vs.-

Ibrahim Uddin & Anr., reported in (2012) 8 SCC 148

it has been categorically held that the issue of

additional evidence before the appellate court at a

belated state can be considered, provided:

i) that there are relevance of the documents

in respect of the issue involved in the case;

ii) the circumstances under which such an

evidence could not be led in the court

below; and

iii) Whether the applicant had prosecuted his

case before the court of law diligently and

as to whether such evidence is required to

pronounce the judgment by the appeal

court.

Since the suit has been decreed inter alia on the

ground of reasonable requirement, such issue is a

substantial issue which Trial court did not have any

scope to consider while passing the decree. Therefore,

after the suit was decreed there is no other way for the

appellant than to run to the competent authority to

procure the document, which may determine the fate of

the suit and which also could decide the entitlement of

the plaintiff and the defendant. The respondents have

taken the plea that defendant/tenant cannot dictate the

landlord, which accommodation is most suitable for

him, but even such issue of alternative reasonable

accommodation could not be ascertained, if a party is

given a chance to examine the document by rendering it

into evidence.

If Section 107 is read with Order XLI, Rule 17(b)

of the Code, the words "on for any other substantial

cause" appears as, for any other substantial cause, the

appellant court requires additional evidence. It is well

settled that the admissibility of additional evidence

depends upon whether or not the appellate court

requires the evidence sought to be adduced to enable it

to pronounce judgement. In other words whether the

appellate court is able to pronounce judgement on the

materials before it without taking into consideration,

the additional evidence sought to be adduced. In the

present context at the cost of repetition it can be stated

that the suit was decreed on the ground of reasonable

requirement and the issue of reasonable requirement

has a direct bearing upon the question of landlord's

possession of other suitable accommodation in that

area. It is true that the general principle is that the

appellate court should not travel outside the record of

the lower court and cannot take evidence in appeal.

However, as an exception, Section 107(1)(d) read with

Order XLI Rule 27, enables the appellate court to take

additional evidence in order to remove the cloud of

doubt over the case and if the evidence has a direct and

important bearing on the main issue in the suit.

In view of the above, I find nothing to interfere

with the order impugned and as such it does not call for

any interference.

CO 1002 of 2018 is accordingly dismissed.

However, if the issue raised before court below as

to whether the opposite parties ceased to be a tenant

under Section 2(g) of the Act of 1997, such issue shall

be kept open before court below for disposal in

accordance with law without being influenced by any

observation made herein.

(Ajoy Kumar Mukherjee, J.)