JUDGMENT
A.K. Mitra, J.
1. Origination of this second appeal is from the challenge thrown to the judgment and decree dated 11.5.1990 passed by the learned Additional District Judge, 12th Court at Alipur in Title Appeal No. 270 of 1989 reversing the judgment and decree dated 30.5.1989 passed by the 1st Additional Munsif at Alipur in T.S. No. 22/87.
2. The instant case concerns a suit for ejectment and recovery of khas possession along with prayer for mesne profits. The case made out in the plaint in brief is, inter alia, as follows:–
3. The plaintiff Pannalal Roy is the owner of the suit premises. The original defendant Tarapada Mitra was a monthly tenant in respect of the suit property at a rental of Rs. 150/- per month. The allegation is that the defendant is a habitual defaulter in the matter of payment of rent since November 1981. He has been intentionally using the varandah as kitchen and the kitchen as bed room in order to damage the suit property and as a result the condition of the suit property has been deteriorated. The defendant has made unauthorised construction of permanent nature covering the landing portion of the staircase of the second floor of the suit property without consent of the plaintiff. The defendant is guilty of causing annoyance and nuisance. The plaintiff also made out a case that the plaintiff reasonably and suitably requires the suit property for his own use and occupation and also that for his family members. The plaintiff alleged that he has another tin-shed house at Baruipur but the same is not at all sufficient for his residence. The tenancy of the defendant has been determined by a notice of ejectment which was sent to the defendant under registered post through the learned advocate for the plaintiff but the defendant continued to occupy the suit property and hence this suit was filed.
4. The defendant Tarapada Mitra contested the suit by filing a written statement. He denied all the allegations made in the plaint. The defendant also denied that he is a defaulter in payment of rent. His contention is that he has not done anything by which the condition of the suit property has been deteriorated. The defendant also alleged that he has effected various essential repairs at his own costs. Those repairs have been made with the approval of the plaintiff and his authorised agent. He has not done any unauthorised construction as alleged in the plaint. The defendant also denied that the plaintiff reasonably requires the suit premises for his own use and occupation. The defendant also stated in the written statement that the notices to quit was illegal and insufficient. It may be mentioned relevantly that subsequently during the pendency of the proceedings the original defendant Tarapada Mitra has expired and his heirs and successors Pratima Mitra and others have been substituted by order dated 10.3.2000.
5. On the basis of the aforementioned pleadings of the plaintiff and the defendant the learned trial Judge framed the following issues:–
1. Is the suit maintainable as framed in law?
2. Is the notice to quit legal, valid and sufficient? Was it duly served?
3. Is the defendant a defaulter in payment of rent?
4. Is the plaintiff reasonably requires the suit premises for use and occupation?
5. Has the plaintiff possessed any other reasonably suitable accommodation elsewhere?
6. Is the defendant guilty of causing annoyance and nuisance?
7. Has the defendant violated the provisions of Clauses (m), (o) & (p) of Section 108 of Transfer of Property Act?
8. Is the plaintiff entitled to get the decree as prayed for?
9. To what other relief, if any, is the plaintiff entitled?
6. The learned trial Judge decreed the suit on contest with cost and directed the defendant to vacate the suit premises and deliver khas possession thereof to the plaint within two months from the date of the order. In default the plaintiff was granted liberty to take possession of the suit premises by executing the decree.
7. When passing the judgment and decree the learned trial Judge found the defendant guilty of violation of the provisions of Clause (p) of Section 108 of Transfer of Property Act but the learned trial Judge did not decide the issue of reasonable requirement of the plaintiff in his favour. Accordingly, challenging the said judgment and decree passed by the learned trial Judge the defendant preferred appeal being Title Appeal No. 270/79 and the plaintiff also filed a cross-objection in the said appeal.
8. After hearing the parties the learned Appellate Court below formulated the following points for determination:–
1. Whether the judgment and decree of the learned Munsif is legal, proper and justified.
2. Whether the plaintiff is entitled to get a decree for eviction on the grounds of reasonable requirements.
3. Whether the judgment and decree of the learned Munsif are liable to be modified or set aside.
9. On the aforementioned points for determination the learned Appellate Court below allowed the appeal on contest against the plaintiff/respondent with cost and set aside the judgment and decree passed by the learned Munsif and also dismissed the cross-objection filed by the plaintiff.
10. Hence this second appeal has been preferred.
11. On 26.3.1991 the Hon’ble Division Bench when hearing the appeal under Order 41 Rule 11 of the Code of Civil Procedure observed that the appeal will be heard on the points of law taken in the grounds of appeal. But at the time of hearing of the appeal on consideration of the pleadings the judgment of both the Courts below as well as the grounds of appeal taken in the memorandum of appeal it appears that all the grounds of appeal taken in the memorandum cannot be termed to be substantial questions of law. Therefore, for the purpose of deciding this appeal substantial questions of law are to be formulated first which after the amendment of the Code of Civil Procedure is the settled position of law and in so many decisions the Hon’ble Apex Court has laid down the same principle regarding formulation of substantial questions of law finally deciding the second appeal. On consideration of all the aspects, in my opinion, the following are the substantial question(s) of law which need be decided in the instant appeal, (1) Whether the learned trial Judge as well as the learned Appellate Court below when passing the judgment and decree properly construed the ratio of the relevant statutory provisions. (2) Whether the judgment and order passed by the Appellate Court below is perverse or not. (3) Whether the learned Appellate Court below made the proper scrutiny of the judgment and decree passed by the learned trial Judge in proper legal perspective or not.
12. During the pendency of this second appeal the appellant/plaintiff filed an application under Order 41 Rule 27 of the Code of Civil Procedure for considering the subsequent events with regard to reasonable requirements. The said application being CAN 6673/2001 was taken up for hearing on August 10, 2001 by the Hon’ble Justice Subhra Kamal Mukherjee and on the said date His Lordship issued directions to file affidavits on the said application and directed the appeal to come up for hearing along with the application and in this application the appellant/plaintiff has stated that the learned trial Judge passed the judgment and decree on the ground of violation of Clause (p) of Section 108 of the Transfer of Property Act by the defendant but did not accept the contention of the plaintiff regarding his requirement of the suit property and as such the plaintiff (appellant herein) had to file cross-objection before the first Appellate Court and the first Appellate Court dismissed the suit as well as the cross-objection filed by the plaintiff. According to the appellant, the petitioner in the application some subsequent events have taken place which are required to be considered in coming the conclusion with regard to the claim for reasonable requirement of the appellant/petitioner. In the application the petitioner/appellant has stated that he has got three daughters and one son. Out of the 3 daughters, 2 have already got married and the youngest daughter at present is aged about 27 years. The son of the petitioner Sri Arun Roy is at present aged about 31 years. The petitioner/appellant in paragraph 8 of the application has also pleaded that his son after inducting some training in computer is doing his own business on computer maintenance in various Calcutta based organisations for which he is to work sometimes upto late night and as such he is facing very much difficulties to come back to the present residence at Baruipur. The appellant/petitioner in this application has also stated that his son has got now marriageable age and due to paucity of accommodation in Baruipur the petitioner could not arrange for the marriage of his only son inasmuch as the petitioner is at present in occupation of only two tin and tile shed rooms at Baruipur house. The petitioner is ready to bear entire expenses for any Special Officer to take note of the petitioner’s shed at Baruipur. The petitioner has further alleged in this application that one of the son-in-laws of the petitioner is lecturer in North Bengal University and the other son-in-law is the Medical Practitioner. But due to paucity of accommodation the daughters and son-in-law of the petitioner cannot spend night in the house of the petitioner at Baruipur. They are to take shelter in the house of their relatives when they come to Calcutta which is embarrassing to the petitioner. The appellant/petitioner in this application has also stated that he requires the suit property situated at Ballygunge for the accommodation of his son, particularly, after his marriage and for accommodation of his unmarried daughter and further for his married daughters. The petitioner also requires the suit property to continue with his legal profession at Alipore Court.
13. In the above context the learned counsel for the appellant, Mr. Mukherjee, submitted that the learned trial Judge committed wrong by not considering the requirements of the appellant/plaintiff in its proper perspective and on the face of the evidence on record and on the face of the report of the learned local Inspection Commissioner. The learned counsel for the appellant also submitted that the Appellate Court below did not consider the evidence on record and the judgment and decree passed by the learned Appellate Court below is totally perverse. The learned counsel also submitted that the learned Appellate Court below did not at all consider the report of the Commissioner which was not objected to by the defendant. The learned counsel submitted that the learned Appellate Court below wrongly dismissed his cross-objection and could not or did not consider the aspect of his reasonable requirement in its proper, legal as well as factual perspective. The learned Appellate Court below also wrongly held that the defendant is not guilty of violation of (m), (o) & (p) clause when admittedly from the evidence on record it clearly appeared that the defendant made construction unauthorisedly without permission of the plaintiff which is permanent in nature. The learned counsel further submitted that though in the plaint the requirement of the plaintiff has been specifically stated still then by passage of time some subsequent events took place which need to be considered and as such he has filed an application under Order 41 Rule 27 of the Code of Civil Procedure which should be taken into consideration. In support of his contentions Mr. Mukherjee relied on a decision (Hasmat Rai v. Raghunath Prasad). Relying on the said decision the learned counsel submitted that here the Hon’ble Apex Court has observed that at the second appellate stage also if the landlord can prove that he bona fide requires the premises, the second Appellate Court should also consider that aspect. The learned counsel relied on another decision (Santilal Dulichand Shah v. Ramesh Ch. Guzarti). The learned counsel relied on the observation made by the Hon’ble Division Bench of this High Court in this decision in its paragraph 20 which is as follows:–
“The requirement as on the date of the decree is the relevant factor for consideration and not what the requirement was at the date of suit. Undoubtedly, the plaintiff’s requirement has considerably increased since after the filing of the suit. That is an aspect which is to be taken into consideration. The learned counsel then relied on a decision (P.V. Papanna and Ors. v. K. Padmanabhaiah). In third decision also the Hon’ble Apex Court reiterated the same principle of consideration of subsequent events at the date of final decree.”
14. The learned counsel then relied on the judgment reported in 2000 (suppl) (3) JT (State of Rajasthan v. T.N. Sahani and Ors.). The learned counsel relied on the observation made in paragraph 4 of this decision of the Hon’ble Apex Court and according to the learned counsel this is exactly on the point for the purpose of consideration of his application under Order 41 Rule 27 of the Code of Civil Procedure. The observation made in paragraph 4 of this decision runs as follows:–
This is entirely for the Court to consider, at the time of hearing of the appeal on merits, whether the documents which are sought to be filed as additional evidence, need to be looked into the pronounce its judgment in a more satisfactory manner. If that be so, it is always open to the Court to look into the document and for that purpose, amended provision of Order 41 Rule 27(b) of the Code of Civil Procedure can be invoked. So the application under Order 41 Rule 27 should have been decided along with the application. Had the Court found the documents necessary to pronounce the judgment in the appeal in a more satisfactory manner it would have allowed the same, if not, the same would have been dismissed at that stage. But taking a view on the application before hearing of the appeal would be improper. Relying on the aforesaid decisions and on another decision (Davish v. Sebastian). The learned counsel for the appellant Mr. Mukherjee submitted that initially both the Courts below committed mistake in not considering the aspect of his reasonable requirement of the suit premises and the appellant being the petitioner has filed an application for taking into consideration the subsequent events which should be considered and prayed for remand of the matter to the Court below for taking evidence as well as for making local inspection, if necessary, regarding his Baruipur residence and a direction on the Court below to come to a finding on the basis of the said evidence to be taken and to submit the findings before this second Appellate Court so that this Court can come to a decision in a more satisfactory manner.
15. The learned counsel for the respondent Mr. Bhattacharyya sought to distinguish the judgment (supra) and submitted that in the said judgment Hon’ble Apex Court observed trial in such case amendment is necessary and the Hon’ble Apex Court also observed that application under Order 41 Rule 27 can be made only for consideration of the events which happened subsequently or which could not be within the knowledge of the applicant but in the instant case the plaintiff being the appellant herein by making an application under Order 41 Rule 27 wants to fortify the averments made in the plaint which is not permissible and in the instant case amendment of the plaint is the only remedy. The learned counsel for the respondent also relied on the decision (Pashupati Venkateswaralu v. Motor & General Traders). The learned counsel relied on the observations made in paragraphs 5 and 6 of the said decision and submitted that amendment is necessary in the instant case and there is no application for amendment made by the plaintiff/appellant herein. The learned counsel then relied on the decision and submitted that for the purpose of coming to a finding regarding violation of Clause (p) of Section 108 of the Transfer of Property Act the Court is to come to a finding regarding the nature of construction that is whether it is permanent or not. The learned counsel thereafter relied on the decision reported in the case of Kanta Devi Arora v. Snehalata Sen and submitted that reasonability is the only test which is to be made when granting such a decree and the learned counsel also relied on the decision and submitted that in the instant case the learned trial Judge wrongly came to a finding that the defendant/tenant is guilty of violation of Clause (p) of Section 108 of the Transfer of Property Act.
16. The learned counsel for the appellant in reply relied on the decision (Kujna Kesavan v. M.M. Philip and Ors.) and AIR 1959 SC 31 (M.M.B. Cathlicos v. Thukalan Paulo Avira and Ors.) and the learned counsel submitted that the Appellate Court below wrongly rejected the cross-objection filed by the plaintiff/landlord in the first appeal and wrongly came to a finding that the defendant/tenant is not guilty of violation of Clause (m), (o) & (p) of Section 108 of the Transfer of Property Act. The learned counsel for the appellant also relied on two unreported judgments delivered by the Hon’ble Justice P.K. Samanta in S.A. No. 345 of 1983 (Smt. Sadhana Saha Bhakta v. Archana Saha and Ors.) and delivered by Hon’ble Justice Subhra Kamal Mukherjee in S.A. No. 99/92 (Sri Subal Patra v. Motilal Pal) and submitted that in these two judgments two Hon’ble Judges of this High Court in identical situation sent the appeal back on remand for the purpose of taking evidence on the applications filed under Order 41 Rule 27 of the Code of Civil Procedure.
17. Heard the learned counsel for the parties. Perused the averments made in the plaint arid the written statement, perused the evidence on record as well as the Commissioner’s report. The learned Appellate Court below wrongly observed that “there is no case on this point in the plaint that the defendant/appellant covered the open varandah by unauthorised construction” whereas in paragraph 5 of the plaint it has been pleaded “that besides the defendant has made unauthorised construction of permanent in nature covering the landing portion of the staircase of the second floor of the suit premises without the consent of the plaintiff.” The learned Appellate Court below also did not consider the Commissioner’s report where it has been observed by the local Inspection Commissioner “the measurement of the covered varandah is 14′ 10” x 6′ 2′ and the open varandah “left open after conversion of the kitchen portion” 25’8″ x 5’8″.” The learned Appellate Court below made a wrong finding in his judgment where he says that “the findings of the learned Munsif on this point that he covered the varandah by unauthorised construction is neither in the plaint not it is the case of plaintiff/respondent and such this findings must be taken to be illegal, improper and unjust.”
18. It is duty of the learned Appellate Court below entrusted under Section 96 of the Code of Civil Procedure that the learned Appellate Court below is to scrutinise the judgment of the learned trial Judge but in the instant case it is found that neither he did scrutinise the judgment of the learned Munsif nor he did consider the evidence on record at all. The learned Appellate Court below either acted on bias or acted in a negligent manner when coming to the decision. The learned Appellate Court below should have remembered that the first Appellate Court is the last Court of fact and the learned Appellate Court below should have been more cautious in considering the evidence on record and the judgment of the learned trial Judge. The learned Appellate Court below when coming to the decision regarding reasonableness of the requirement of the landlord /plaintiff, he made out a new theory which is not only unwanted but unexpected when the learned Appellate Court below observed that since the appellant is able to accommodate his family in three rooms in Baruipur house naturally he is not required to come to Calcutta house. It is settled position of law that the landlord is the best judge regarding the user of his own premises and there the Court below cannot profound a special theory and render gratuitous advice that the landlord should be satisfied with the accommodation available to him. Neither did the Appellate Court below consider the averments made by the plaintiff in paragraphs 5, 6 and 7 of the plaint nor did he consider the reasonableness of the requirement. The learned Appellate Court below also went in contradiction to the averments made out in the plaint when the learned first Appellate Court comes to a finding “it is not the case of the plaintiff/respondent that the accommodation in the suit premises is necessary for the purpose of education and other things for the members of the family including his sons and daughters” inasmuch as had the learned Appellate Court cast a glance on the averments made in paragraph 7 of the plaint he could have found that there is clear averment that one room is required for studies of the sons and daughters.” The learned Appellate Court below did not at all consider the evidence on record and passed the judgment and decree not only without scrutiny of the judgment of the learned trial Judge but also in contradiction of the evidence on record. In clear language the Judgment and decree passed by the learned Appellate Court below can be said to be perverse.
19. In so far as the application under Order 41 Rule 27 of the Code of Civil Procedure is concerned which has been filed before this Court containing new fact regarding the marriage of two daughters, regarding the computer business of his son, regarding the inability of the plaintiff in getting his son married though he has attained marriageable age and the inability of the plaintiff in getting his son married though he has attained marriageable age and the inability of the plaintiff to keep his daughters and son-in-laws at least for a night or two because of paucity of accommodation, these facts are subsequent. I respectfully disagree with the contentions of the learned counsel for the respondent in this regard that the plaintiff/appellant ought to have made an application under Order 6 Rule 17 for amendment of the plaint and in this regard the judgment of the Hon’ble Apex Court (supra) as has been cited by the learned counsel for the appellant which is very and clear specific. It has been observed by the Hon’ble Apex Court that even after rejection of the application for amendment, the Court can consider the application under Order 41 Rule 27 of the Code of Civil Procedure. In my opinion, for the purpose of deciding the issues or deciding the second appeal in a more satisfactory manner this application under Order 41 Rule 27 should be decided through evidence.
20. With the above observation, I, therefore, remand the matter back to the learned Appellate Court below for hearing afresh on the point of violation of (m), (o) & (p) clause of Section 108 of the Transfer of Property Act in the light of the observation made above. The learned Appellate Court below will also consider the application filed by the plaintiff being the appellant herein under Order 41 Rule 27 which is to be sent back after taking evidence in so far as the contents of the said application being CAN 6673 of 2001 is concerned. Since the matter is long pending, the Appellate Court below is directed to hear out the matter in the light of the above observations within a period of three months from the date of his receiving the records and to send back the entire records along with his finding before this High Court within a period of fortnight from the date of his decision and/or finding in the matter. After arrival of the matter from the Appellate Court below, the matter be placed before the appropriate Bench for taking up the hearing of the second appeal and in any event it will not be treated as hearing-in-part by this Court.
The entire records be sent to the Appellate Court below forthwith.
Urgent xerox certified copy, if applied for, will be supplied to the parties expeditiously.