SUBODH KUMAR SRIMANI Vs. NIL KANTA MUKHERJEE

JUDGEMENT

(1.) . - This second appeal was admitted by a Division Bench of this Court by an order dated 29th June 1991. Lower Court records were called for. Usual notices were served. Paper book was prepared accordingly for the purpose of hearing the appeal. At the time of hearing the appeal I have not found on what point the appeal was admitted. However, as the law permits the Court to formulate the points even at the time of hearing I called upon the Learned Counsels appearing for the parties to formulate the same and proceed with the appeal. At the threshold Learned Counsel appearing for the appellants has pointed out grounds No. II and IV for the purpose of due consideration by the Second Appellate Court. According to me, by and large both the grounds related to fact which has to be decided by the fact finding Court. Mr. S.P. Roychowdhury, Learned Senior Counsel, appearing on behalf of the appellate contended that three major points in connection with the issue of bonafide ground of reasonable requirement of the plaintiff/respondent are available here which may be ignored. Such points are as follows

(2.) Little background of the fact to come to a definite conclusion in respect of the question of reasonable requirement is that the plaintiff/respondent has a cloth printing business at his residence which is nearby a place on the right side of the Grand Trunk Road (G.T. Road) at Serampore. Hooghly, West Bengal. The suit house stands on the G.T. Road itself. First floor of the premises is in the occupation of the plaintiff/respondent but for the purpose of running a shop room for selling silk sarees he wanted to evict the defendants/appellants from the ground floor premises. He lost in the Court of Learned Munsif (now the Learned Civil Judge). He also lost before the Court of first appeal. Second appeal was preferred before this High Court which was initially admitted and by a final order the matter was remanded back to the First Appellate Court for the purpose of fresh hearing. Such First Appellate Court held in favour of the plaintiff/respondent. The present second appeal is outcome of the same.

(3.) The first point arose as to whether order of remand was an open remand or restricted remand. I hereby quote the relevant parts of the order passed by a Bench of this Court in the earlier second appeal on 6th Nov., 1989:-