SAMIR KR ROY Vs. KANIKA GHOSH

JUDGEMENT

(1.) The predecessor-in-interest of the petitioners instituted a suit for eviction of the opposite party from holding no.102 (hereafter the suit holding), inter alia, on the ground of reasonable requirement. He intended his sons to start a jewellery business therefrom. During pendency of the suit, the original plaintiff passed away. The petitioners were substituted in his place as plaintiffs. The learned Judge of the trial Court was apprised by the opposite party that the plaintiffs had suppressed availability of a reasonably suitable alternative accommodation at holding no.105 (hereafter the said holding). P.W. 1 admitted in his evidence that his mother was the owner of the said holding when she died. The trial Judge was of the view that since a reasonably suitable alternative accommodation was available to the plaintiffs, they did not require the suit holding for their own use and, consequently, dismissed the suit.

(2.) The judgment and decree of the trial Court was challenged in an appeal. During pendency of the appeal, the petitioners filed an application for amendment of the plaint under Order 6 Rule 17, Civil Procedure Code (hereafter the Code) seeking to bring on record a plea that the said holding was not a reasonably suitable alternative accommodation available to them, which could be considered as a ground for disentitling relief claimed in the suit. The application for amendment of the plaint was allowed by the appellate Court. The resultant order was challenged by the opposite party by filing a revisional application before this Court. A learned Judge of this Court by order dated 7th May, 2010 opined that the amendment was necessary for effective and complete decision on the point in controversy between the parties and, therefore, disposed of the same without interfering with the order impugned.

(3.) After the application for amendment of the plaint was allowed, the petitioners filed an application under Order 41 Rule 27 of the Code before the appellate Court seeking permission to produce additional evidence. The said application and the appeal were thereafter heard together. The appeal stood allowed by judgment dated 27th May, 2011 along with the said application. The impugned judgment and decree was set aside and the suit sent on remand. The trial Court was directed to give opportunity to the opposite party to produce additional evidence confined to paragraph 5(a) of the plaint, which had been incorporated therein as a result of the application under Order 6 Rule 17 of the Code being allowed. The trial Court was further directed to receive additional evidence, if led by the parties, and to decide the suit within three months.