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Bhulan Shaw Vs. Sm. Tarubala Roy - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 743 of 1979
Judge
Reported inAIR1985Cal450
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100 to 101 - Order 41, Rules 27, 27(1) and 28
AppellantBhulan Shaw
RespondentSm. Tarubala Roy
Appellant AdvocateMani Chakraborty and ;Nani Gopal Chatterjee, Advs.
Respondent AdvocateSudhis Das Gupta and ;K.K. Chakraborty, Advs.
DispositionAppeal dismissed
Cases ReferredK. Venkataramiah v. Seetharama Reddy
Excerpt:
- .....ejectment.2. the plaintiff's case, is that the defendant was a tenant under the plaintiff in the suit premises at a rent of rs. 32/- per month payable according to english calendar month and that as the plaintiff requires the disputed room for her own use and occupation, she served a notice of ejectment on the defendant dated 28-12-1973 by registered post on 31-12-1973 terminating the tenancy and calling upon the defendant to vacate the suit premises on the expiry of the month of january, 1974.3. the defendant contested the suit by filing written statement denying the validity andsufficiency of the notice of ejectment and the alleged requirement of the plaintiff for the suit premises and also pleading that the suit premises are not outside the municipal area and so the defendant's.....
Judgment:

Amitabha Dutta, J.

1. This is an appeal by thedefendant from the judgment and decree ofthe learned District Judge, Hooghly reversingthe decision of the learned Munsif 1st Court,Serampore and it arises out of a suit for evictionof the defendant from one room in plot No. 153of village Kashibati within Mouza Uttarpara,P. S. Uttarpara in the District of Hooghly afterservice of a notice of ejectment.

2. The plaintiff's case, is that the defendant was a tenant under the plaintiff in the suit premises at a rent of Rs. 32/- per month payable according to English calendar month and that as the plaintiff requires the disputed room for her own use and occupation, she served a notice of ejectment on the defendant dated 28-12-1973 by registered post on 31-12-1973 terminating the tenancy and calling upon the defendant to vacate the suit premises on the expiry of the month of January, 1974.

3. The defendant contested the suit by filing written statement denying the validity andsufficiency of the notice of ejectment and the alleged requirement of the plaintiff for the suit premises and also pleading that the suit premises are not outside the municipal area and so the defendant's tenancy is governed not by the Transfer of Property Act but by the West Bengal Premises Tenancy Act, 1956.

4. The learned Munsif after considering the evidence adduced during trial, dismissed the suit. In first appeal, the learned District Judge after directing the learned Munsif to take additional evidence and after such evidence was taken, considered the evidence as a whole and decreed the suit reversing the decision of the learned Munsif. Being aggrieved by the decision of the appellate Court, the defendant has preferred this appeal

5. The first point raised by the learned Advocate for the defendant appellant is that the suit premises being situated within the area of Uttarpara Kotrang Municipality, the tenancy of the defendant is governed by the provisions of the West Bengal Premises Tenancy Act, 1956 and, therefore, the Courts below had no jurisdiction to decide the suit as framed for eviction of the defendant by service of a notice of ejectment. In support of this contention reliance has been placed on the judgment of the learned Judge Pradyot Kumar Banerjee, J. passed on the 29th June, 1981 in Appeal from Appellate Decree No. 1232 of 1979, a certified copy of which has been produced at the time of hearing, in which the learned Judge has held that by a notification dated the 24th December, 1971 the local area of Uttarpara Kotrang Municipality was extended under Section 8(c) of the Bengal Municipal Act and the challenge to the notification in a writ proceeding having failed, Makhla Mouza is within the area of the said Municipality and, therefore, to a premises tenancy in respect of plot No. 2125 of Mouza Makhla, the West Bengal Premises Tenancy Act applies. On the other hand, it has been submitted by the learned Advocate appearing on behalf of the plaintiff respondent that the defendant having raised this plea specifically that the suit premises being not outside the municipal area are governed not by the Transfer of Property Act but by the West Bengal Premises Tenancy Act, in the written statement and thereafter having abandoned the plea both before the trial Court and before the first appellate Court, cannot raise the question in second appeal before this Court although it touches the validity of the entire proceeding. In this connection, he has relied on the decision of the Division Bench in the case of Premchand M. Chand v. F. G. J. and Manufacturing Company, : AIR1959Cal620 in which the learned Judge Chakraborty, C.J. delivering the judgment has held that a ground of law particularly one which goes to the validity of the entire proceeding can be taken for the first time at any stage; but when a party has raised such ground in the trial Court and then deliberately has abandoned it, he cannot be allowed to raise it at the appellate stage. The reported decision is a judgment under appeal from the decision of the learned Judge P. B. Mukherji, J. (as his Lordship then was) and it arises out of an application for setting aside an award made against the appellant by the Bengal Chamber of Commerce. Before the Court of first instance the award was challenged principally on two grounds viz., that as the contract for sale of jute was void being in contravention of the Forward Contracts (Regulation) Act. 1952 the arbitration agreement contained in the contract was also void and the second ground was that the arbitrators had misconducted themselves by proceeding ex parte without giving any peremptory notice to the appellant. Before the Court of first instance, only the second ground was pressed and the other ground was abandoned. The Division Bench held that it was not open to the appellant to raise the first ground before the appellate Court although it was a ground of law going to the legal validity of the entire proceedings. In the present case, it has been observed by the trial Court in its judgment that in paragraph 11 of the written statement it has been stated that the suit premises are not outside the municipal area and that it is to be governed not by the Transfer of Property Act but by the West Bengal Premises Tenancy Act. But the defendant has not led any evidence to that effect and there was also no argument by the learned lawyer on behalf of the defendant on that point. The first appellate Court in its order dated 11-8-1976 by which it sent the records of the suit to the learned Munsif for taking evidence on certain point has observed that it is also not disputed that the suit premises are situated at a place where there is no application of the West BengalPremises Tenancy Act. Then again, when the appeal was finally heard by the learned District Judge, he has made a similar observation in his judgment that it is no longer disputed that the disputed premises are situated beyond the municipal area and the provisions of the Transfer of Property Act applied thereto. It is, therefore, clear that the defendant having raised the plea in the written statement abandoned it before the court of first instance and also before the Court of first appeal. No evidence has been led by the defendant either oral or documentary in support of such plea. So, I cannot accept the explanation offered on behalf of the appellant that he was not aware of the notification in question extending the area of Uttarpara Kotrang municipality although it is of December 1971 and the suit was filed in 1974 and thereafter that plea was taken in the written statement. In the circumstances of the case, and in view of the Bench decision refected to above, I find that it is not open to the appellant to raise the plea before this Court that the suit premises are situated within the municipal area and the disputed tenancy is not governed by the Transfer of Property Act.

6. The learned advocate appearing for the plaintiff respondent has also disputed that the premises in question are situated within Makhla Mouza and it is contended that the decision of the learned Judge, P. K. Banerjee, J. in Appeal from Appellate Decree No. 1232 of 1979 is of no assistance to the appellant. In this connection, the description of the suit premises in the schedule to the plaint has been referred to where the suit premises have been described as one room in village Kashibati, dag No. 153 in Mouza Uttarpara under P. S. Uttarpara. There is also evidence of P. W. 1 who has stated that the suit premises are not situated in the municipal area which has not been challenged in cross-examination nor has the defendant adduced any rebutting evidence. An application has been filed for admitting Xerox copies of certain documents annexed to the affidavit in support of the application, as additional evidence for pronouncing the judgment under Order 41, Rule 27 of the Code of Civil Procedure. After hearing both sides on the said application, it is allowed without any objection raised on behalf of the appellant. The said documents purport to show that the plaintiff paid the house taxes i.e. land revenueto Makhla Anchal Panchayat up to31st March, 1983 for her property in Mouza Uttarpara, Makhla and that the Chairman of Uttarpara Kotrang Municipality has certified that village Kashibati P. O. Makhla District Hooghly does not come under the jurisdiction of Uttarpara Kotrang Municipality at present. The said certificate is dated 27-1-1984. The only ether document received as additional evidence is Xerox copy of a ration card where the village address of the plaintiff is described as Makhla within Anchal Makhla. the column for mentioning the name of the municipality in the ration card having been left blank. Considering the materials on record and the unchallenged additional evidence referred to above, I find that it has not been established that the suit premises are situate within municipal area or that the provisions of West Bengal Premises Tenancy Act apply to the tenancy in suit.

7. The next point raised by the learned Advocate appearing for the appellant is that the learned District Judge has erred in law in directing the learned Munsif to take additional evidence on the point whether the original notice of ejectment sent by the plaintiff to the defendant contained any signature and if so, who was the author of the signature. It is argued that the provisions of Order 41, Rule 25 of the Code do not permit the appellate Court to make such order for the purpose of filling up the lacuna in the plaintiff's evidence. In this connection, reliance has been placed on the decision in the case of Ram Chandra Kunwar v Chaudhury Narpat Singh, (1907) 11 Cal WN 321 in which the Privy Council held that where in the course of a suit, a question was raised in such a manner that the opposite party was not taken by surprise and evidence was led on the question though no issue was expressly framed in regard to it, it was undesirable to frame a fresh issue on the question and sent it back for trial in the original Court. But in my view, the ratio in the said decision does not apply to the present case where the learned District Judge had not framed any issue for referring it to the Court of first instance. The next decision cited on behalf of the appellant is the case of V. V. T. Chariar v. Anantha Chariar, (1893) ILR 16 Mad 299 (PC) in which the High Court made an order directing the District Judge to takecertain document in question and submit a revised finding. Their Lordships of the Privy Council held that the power of the High Court to remand for further consideration of the evidence was limited to and defined by the Code and that the second or revised judgment of the District Judge had been irregularly obtained in the manner not authorised by any one of the Sections 562 to 567 of the Code, as it then was. In the present case, the District Judge did not ask for a revised finding of the learned Munsif and so it is difficult to follow how the aforesaid decision of the Privy Council is of any aid to the appellant. It appears that in the present case the learned Munsif found that the plaintiffs witness in his deposition only proved the copy of the notice and that there has not been a word about whether the original notice of enactment was signed by the plaintiff Tarubala Roy. The deponent, P. W. 1 also did not see the notice m original being written out by his father. P. W. 1 is the son of the plaintiff. According to the learned Munsif, in the absence of the original being not proved in the manner required, the cop> of the notice of ejectment which was marked Ext. 1 without objection, could not be accepted as the copy of a valid notice. The learned District Judge while hearing the appeal for the first time found that in view of the state of evidence it was difficult to dispose of the appeal in a proper way and that there should, therefore, be some further evidence on the point. On the said consideration, the District Judge directed the iearned Munsif to take evidence on the point whether the original notice contained any signature and if so who was the signatory. Thereafter the husband of the plaintiff deposed before the trial Court and gave evidence for proving the writing and signature of the original notice to the effect that he was the wnter of the contents of the notice and his wife, the plaintiff, signed the notice. After such evidence was taken and returned to the learned District Judge, he considered the entire evidence and found that a valid notice of ejectment was served on the defendant terminating his tenancy on the expiry of January 1974. There is a postal acknowledgment showing that the defendant received the notice by putting his signature on 3I-12-1973 All these materials have been considered by the first appellate Court in coming to a finding that the plaintiff has succeeded in proving her case and on thatbasis for decreeing the suit and reversing the decision of the learned Munsif. It appears that the first appellate Court had really exercised its powers under Order 41, Rule 27, Sub-rule (1) Clause (b) read with Rule 28, of the Code. Under Order 41, Rule 27(1)(b), when the appellate Court requires any document to be proved or any witness to be examined to enable it to pronounce the judgment or for any other substantial cause it may allow such evidence or document to be produced or witness to be examined and Rule 28 provides that the appellate Court may direct the Court, from whose decree the appeal is preferred, to take such evidence and send it when taken to the appellate Court. In this connection, it has been submitted on behalf of the respondent that the order of the appellate Court shows that it wanted to clear up some obscurity in the evidence for the purpose of enabling it to pronounce the judgment which is quite permissible under Order 41, Rule 27 (1)(b) of the Code, and this will be supported by the Supreme Court's decision in the case of K. Venkataramiah v. Seetharama Reddy, : [1964]2SCR35 where the learned Judge Das Gupta, J. delivering the judgment had held that the expression 'any other substantial cause' includes cases where the Court considers that in the interests of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more suitable manner. The Supreme Court has further held that when additional evidence is taken without objection at the time when it was taken, it is not open to a party to complain of it later on. In the present case, there is no indication in the records to show that any objection was raised on behalf of the present appellant to the taking of additional evidence as directed by the appellate Court. In the circumstances, I find that there is no substance in the second point raised on behalf of the appellant to assail the decision of the learned District Judge. I cannot agree with the learned Advocate for the appellant that the District Judge has acted arbitrarily and without any reason in taking additional evidence. No other point has been raised on behalf of the appellant.

8. In the result, the appeal fails and is dismissed without any order as to costs. The judgment and decree of the first appellate Court are affirmed. The defendant appellantis allowed six months' time to vacate the suit premises on condition that he goes on paying to the plaintiff or depositing in the trial Court damages, equivalent to the rate of rent, month by month, by the 15th of the next succeeding month.


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