1. This appeal has been filed by the plaintiffs and it arises out of a suit for ejectment. The appellants filed the said suit for ejectment against the respondent and his brother Jadaben-dra Nath Banerjee who were the defendants Nos. 2 and 1 respectively in the suit.
2. The plaintiffs' case as made out in the plaint is as follows :
The plaintiffs jointly purchased the property being holding Nos. 44-A and 44-B, Ramesh Mitra Road, Calcutta, by a registered Deed of Sale dated July 7, 1964, from Mohini Mohan Ghosh and others, The defendants were the tenants in respect of premises No. 44-A, Ramesh Mitra Road at a monthly rent of Rs. 93.50 p. according to English Calendar month under the vendors of the plaintiffs. On the day on which the Sale Deed was executed the plaintiff vendors sent a letter of Attornment to the defendant in respect of the said tenancy and the letter was accepted by the defendant. It was alleged that the plaintiffs purchased the property for their own use and occupation. Out of the two premises purchased by the plaintiffs they got possession of the premises No. 44-B only. But the accommodation there fa not sufficient. It was also alleged that the defendants were habitual defaulters, not having paid rent since December, 1963. The plaintiffs sent a notice of ejectment under registered post with Acknowledgment Due on August 6, 1964, asking the defendants to vacate with the expiry of the month of September, 1964. But in spite of such notice the defendants have not vacated. It was further alleged that the plaintiff No. 1 is a medical practitioner and he has been practising as a gynaecologist in Calcutta for a considerable time. He requires at least 4 rooms for his chamber and for his Nursing Home. The plaintiff No. 1 has got his wife and one unmarried school going daughter. The plaintiff No. 2 has got his wife and one son. It was alleged that besides these persons the plaintiffs have two unmarried sisters, one cousin and his wife, and their 8 children. It was alleged that they were all dependents in the family of the plaintiffs. It was further alleged that there was one cook and one servant in their family. The accommodation in 44-B, Ramesh Mitra Road was insufficient. They have only one bed room, one kitchen and one thakurghar in the first floor and only 3 rooms on the ground floor including the chamber and the store room. It was accordingly claimed that the plaintiffs required the entire suit premises for their own use and occupation. The suit was contested by the defendant No. 2 who is the respondent in this appeal. It was alleged by the defendant No. 2 that the plaintiffs have no cause of action and that the notice of ejectment was illegal, invalid and insufficient. The service of notice was also denied. The receipt of the letter of attornment was not denied. All other material allegations in the plaint were however denied. It was further alleged by the defendant that for some unavoidable reasons the rent for September and October could not be deposited with the Rent Controller in favour of the vendor. The rent for the month of November, 1963, was sent by money order on 16th December, 1963 to the vendor of the plaintiffs and it was refused by them on 31st December, 1963 and this amount could not be deposited with the Rent Controller as it was beyond time. It was further alleged that the rent for the period from 1st to 6th July, 1964, was sent to the vendor of the plaintiffs and that was refused. The defendant paid rent for the period from 7th July to 31st July, 1964, to the plaintiffs but they refused to accept the same, Thereafter the defendant had been depositing rent with the Rent Controller to the credit of the plaintiffs.
3. The trial court found that the service of notice on one of the tenants in common amounts to service of the same on the other tenant as well, and it further found that the notice was valid and sufficient. The trial court further found that the defendants were defaulters and the plaintiffs are entitled to a decree for eviction on the ground of default. On the question of reasonable requirement also the trial court found in favour of the plaintiffs. Before the trial court it was urged on behalf of the defendant No. 2 that his brother the defendant No. 1 who was a mental patient living in the Mental Hospital at Ranchi had died on the 27th December, 1970. It was contended that no substitution of the heirs and legal representatives of the defendant No. 1 having been made, the plaintiffs were not entitled to get a decree. On this point the trial court took the view that the evidence on record was not sufficient to come to the conclusion that the defendant No. 1 had died as alleged on behalf of the defendant No. 2. The trial court disbelieved the defendants' version on this point on the ground that the defendant No. 2 who filed an application for amendment of the written statement on November 22, 1971, did not mention about the death of the defendant No. 1 in that petition although according to him the defendant No. 1 died on 27th December, 1970. The trial court did not put any reliance upon the only witness examined on behalf of the defence on this point, and in that view of the matter passed a decree in favour of the plaintiffs.
4. Against the decision of the trial court the defendant No. 2 alone preferred an appeal before the lower appellate court. The same points were urged on behalf of the defendant No. 2 in the appeal before the lower appellate court. The lower appellate court agreed with the view taken by the trial court except that it was of the opinion that the plaintiffs' reasonable requirement for their own use and occupation would be satisfied of a decree for partial eviction was passed. Before the lower appellate court the defendant No 2 filed a certified copy of death certificate dated Nov. 23, 1972 granted by the Medical Superintendent, Hospital for mental Diseases Ranchi, showing that Jadabendra Nath Banerjee died on the 27th December, 1970. Although this certificate was not admitted in evidence and it was not marked as an exhibit in the case, the learned Judge in the lower appellate court proceeded on the basis that the defendant No. 1 Jadabendra Nath Banerjee had died in 1970. It was submitted on behalf of the defendant No. 2 that apart from defendant No. 2 the defendant No. 1 died leaving a married sister and the said sister not having been brought on record the suit was not maintainable. The lower appellate court took the view that as the sister was not residing in the disputed premises she was not a tenant within the meaning of West Bengal Premises Tenancy Act, and as such, her substitution was not required. In the aforesaid view of the matter the lower appellate court allowed the appeal in part and sent back the suit on remand to the trial court to find out whether it is feasible to pass a decree on partial eviction if the defendant agreed to the same.
5. Against this decision of the lower appellate court the plaintiffs have filed the present Second Appeal. The defendant No. 2 has also filed an independent appeal, being S. A. No. 1084 of 1973. These two appeals came up for hearing before Anil Kumar Sen J. sitting singly. The appeals were heard on May 27. 1977. The hearing was adjourned to a subsequent date. Thereafter when the appeals came up for hearing on 9th June, 1977, his Lordship was pleased to refer the matter to the Division Bench.
6. Mr. Dutt, learned Advocate for the appellants contended that he had been able to persuade Anil K. Sen J. to reconsider his Lordship's own decision in the case of Asha Gupta v. Sipra Gupta, (1976) 80 Cal WN 187. In that case it was decided by a Division Bench presided over by Anil K. Sen J. that in a case governed by the West Bengal Premises Tenancy Act where the tenant died during the pendency of the suit and only those of his heirs who were residing with him were substituted, it was necessary to substitute all the heirs of the deceased tenant. The Division Bench took the view on the ground that although the other heirs who are not ordinarily residing in the premises were not entitled to the special protection conferred by the Act in view of the definition of the tenant under Section 2(h) of the West Bengal Premises Tenancy Act, still it was open to them to contest the suit on the ground of notice. If the notice was defective the suit was liable to be dismissed. Therefore, it was necessary to substitute all the heirs of the deceased tenant. According to Mr. Dutt, Sen J. thought it fit to reconsider the said decision but as that decision was of a Division Bench his Lordship sitting singly could not go against it and therefore, he referred the matter to a Division Bench. Mr. Sen, learned Advocate appearing on behalf of the respondent however challenged the contention of Mr. Dutt. Mr. Sen submitted that it was not correct to say that Sen J. thought it fit to reconsider the aforesaid decision. According to him the matter was referred to the Division Bench because Mr. Dutt wanted the matter to be decided by a Division Bench. The order recorded on the 9th June. 1977, does not indicate the reasons why the matter was referred to the Division Bench. We need not however enter into this controversy because in the facts of the present case it is immaterial whether the substitution of all the heirs of the deceased defendant No. 1 was necessary or not. Jadabendra Nath Banerjee who was the defendant No. 1 in the suit and who is stated to have died leaving his brother the defendant No. 2, and a married sister, did not file any written statement. He did not contest the suit. The married sister of the said defendant No. 1 who was not residing in the suit premises could not, therefore, contest the suit even on the ground of notice. She could not possibly make out, a case which was never made out by her predecessor-in-interest That being so the only other heir of the deceased defendant No. 1, namely the defendant No. 2 who is the respondent in the present appeal was already on record. He represented the estate of the deceased defendant No. 1. If the estate is represented then there is no abatement of the suit. In such a case the decision will be binding upon the heir who has not been brought on record. -- Vide Dayaram v. Shyamasundari. : 1SCR231 . A similar view has also been taken in Mahabir Prasad v. Jage Ram. : 3SCR301 . In this view of the matter it must be held that the suit and the appeal could have been proceeded with by the appellants even though the married sister of the defendant No. 1 was not substituted after the death of defendant No. 1.
7. Mr. Sen, learned Advocate for the respondent, contended that the present suit is liable to be dismissed inasmuch as the plaintiff failed to put in fresh pleading and make out the ground for eviction under Clause (ff) of Sub-section (1) of Section 13 of the Act. He relied upon the decision in B. Banerjee v. Anita Pan, : 2SCR774 in support of his contention. It appears from the record that an application for amendment of the plaint was filed by the appellants on 25th March, 1976. In that application the appellants made an averment in paragraph 9 to the effect that they have no reasonably suitable or adequate alternative accommodation and they reasonably require the suit premises for their own use and occupation. It also appears from an order passed on the 14th June, 1976 by Chittatosh Mookerji J. that two ad-ditional issues were framed in terms of the amended Section 13 (3-A) and Section 13 (1) (ff) of the Act. Mr. Sen contended that amendment of the plaint is not fresh pleading. According to him the filing of the application for amendment of the plaint by the appellants and raising of the two additional issues are not in consonance with the decision of the Supreme Court in B. Banerjee's case. His contention is that the appellants are not therefore entitled to get a decree in the present suit. We are unable to accept this contention of Mr. Sen. in our view we have to look at the substance and not the form. The steps taken by the appellants after the decision of the Supreme Court in B. Banerjee's case are sufficient compliance with the requirement of law.
8. The only other point which requires consideration in this appeal is whether the decision of the lower appellate court remanding the suit to the trial court for a determination of the question of partial ejectment can be upheld or not. On this question the decision of the lower appellate court proceeds on the basis that since there is some discrepancy on the question of requirement of the plaintiffs, in the evidence of the plaintiff No. 1 and the statements made in paragraph 9 of the plaint, the plaintiffs' case that they require the entire disputed premises for their own use and occupation cannot be accepted. The discrepancy noticed by the lower appellate court is that in paragraph 9 of the plaint it has been stated that the plaintiff No. 1 requires at least 4 rooms for his chamber and nursing home, but in evidence the plaintiff No. 1 has stated that he requires 9 or 10 rooms for his nursing home. It is true that this discrepancy is there regarding the number of rooms required by the plaintiff. But it must not be lost sight of that the suit was filed in January 1965 and the plaintiff No. 1 was deposing in court in May. 1972. In our view, the plaintiff No. 1 was not required to nor could be expected to mention exactly the same number of rooms which he requires because of the intervening period of about 71/2 years. It is in evidence that the plaintiff No. 1 is qualified Gynaecologist having a good practice, and in the normal course a medical practitioner of his standing is expected to have a larger volume of practice in course of 71/2 years, The emphasis put upon this aspect of the case by the learned Judge in the lower appellate court was not therefore quite justified in the circumstances of the present case. The courts below rightly discarded the plaintiffs' case of requirement for their cousin and his wife and 8 children. That finding has not been challenged by the appellants in this appeal. The evidence is that the family of the plaintiff No. 1 consists of himself, his wife and two unmarried daughters, The family of the plaintiff No. 2 consists of himself, his wife and a son. Besides these persons there are two unmarried sisters of the plaintiffs and also the plaintiffs' father. The Commissioner's report shows that there are 8 rooms and a kitchen in premises No. 44/B. Ramesh Mitra Road where the plaintiffs have been residing. The disputed premises No. 44/A, Ramesh Mitra Road which is in occupation of the defendants consists of 9 rooms Including a thakurghar. There is also a mezzanine flour room. Of all the rooms in the two premises the plaintiff No. 1 and his wife would require one room as their bed room. The two daughters of the plaintiff No. 1 can share one of the larger rooms. The plaintiff No. 2 and his wife would require one room as their bed room. The son of the plaintiff No. 2 would need one room. The two sisters of the plaintiffs would also require one room as their bed room and the father of the plaintiffs would also require one room. Besides these the plaintiffs would require one sitting room or drawing room, one kitchen, a thakurghar and a dining-cum-stores room. In all, therefore, they would require 10 rooms. But they have only 9 rooms in their possession in premises No. 44/B. Ramesh Mitra Road. For the purpose of the nursing home of the plaintiff No. 1, one room would be required as waiting room for the patients. The plaintiff No. 1 would require another room for examination of the patients. Then another large room would be required as the Operation Theatre, Besides the nurses engaged by the plaintiff No. 1 would need one room for taking rest when they are not actually attending any patient, and at least 4 rooms would be required to accommodate the patients. Therefore, out of the 10 rooms in premises No. 44/A. Ramesh Mitra Road. 8 rooms would ba required by the plaintiff No. 1 for running the nursing home. It has been seen that the plaintiff would require 10 rooms for their residence. But premises No. 44/B, Ramesh Mitra Road where the plaintiffs are now residing has 9 rooms only. Another room in premises No. 44/A, Ramesh Mitra Road would thus be required by the plaintiffs. It would, therefore, leave only one extra room in premises No. 44/A, Ramesh Mitra Road. The defendant cannot continue to live in this extra room. In this view of the matter we do not think that the lower appellate court was justified in remanding the suit to the trial court for the purpose of finding out whether a decree for partial eviction would satisfy the requirement of the plaintiffs.
9. Before concluding it remains for us to dispose of the application under Order 41 Rule 27 C. P. C. filed on behalf of the respondent for taking as additional evidence certain documents which have been annexed to the said application, The documents annexed to the application are a certificate issued by the Medical Superintendent, Ranchi Mental Hospital. The certificate states that Sri Jadabendra Nath Banerjee has been a patient of the said hospital since 1959 till the date of which the certificate was granted. The date of the certificate is 4th November, 1968. The next document is a communication from the Medical Superintendent of the said hospital dated 23-11-1972 addressed to Sri B. N. Banerjee. It shows that Jadabendra Nath Banerjee died on 27-12-1970. The other documents are the information received from the office of the Rent Controller, Calcutta, to the effect that rent was deposited by Sri B. N. Banerjee and J. N. Banerjee of 44/A. Ramesh Mitra Road, Calcutta and the money had been withdrawn. These documents cannot be accepted in evidence for the simple reason that these are neither the originals nor have those documents been proved. The documents annexed to the application are merely plain copies. The documents have not been proved by anybody. In the circumstances, these cannot be received in evidence. Moreover, there is no explanation why the defendant No. 2 who was in possession of these documents did not produce the same before the courts below. In the circumstances the application is dismissed.
10. In the result, the appeal succeeds. The judgment and decree of the lower appellate court are set aside and those of the trial court are restored. There will be no order as to costs in this appeal.
D.C. Chakravorti, J.
11. I agree.