LACHMAN KUMAR AGARWALA Vs. PAWAN KUMAR AGARWALA

JUDGEMENT

(1.) THE affidavit -of -service filed on behalf of the petitioner is kept with the record. The petitioner has preferred this application under Article 227 of the Constitution of India challenging the Order No. 42 dated 11th March, 2013 passed by learned Judge, 13th Bench, City Civil Court, Calcutta in Title Appeal No. 35 of 2009, by which learned Judge of the First Appellate Court rejected the application under Order 41 Rule 27 of the Code of Civil Procedure filed by the petitioner.

(2.) THE petitioner is the appellant before the First Appellate Court. The opposite party nos. 1 and 2 are the respondents before the First Appellate Court. It appears from the materials on record that the opposite parties/plaintiffs instituted the Ejectment Suit No. 2597 of 2000 against the petitioner/defendant in the Court of learned Judge, 6th Court, Presidency Small Causes Court, Calcutta for eviction, recovery of khas possession on the ground of reasonable requirement, default etc. Learned Judge of the Presidency Small Causes Court decreed the said suit on 26th May, 2009 and the petitioner/appellant preferred Title Appeal No. 35 of 2009 before the City Civil Court, Calcutta. On 3rd September, 2010 the petitioner/appellant filed an application under Order 41 Rule 27 of the Code of Civil Procedure before the Appellate Court for adducing additional evidence to establish that the opposite parties/respondents have suitable alternative accommodation. Thereafter, on 10th November, 2010 the petitioner/appellant filed another application under Order 39 Rule 7 of the Code of Civil Procedure praying for local inspection of the premises alleged to have been under the possession of the opposite parties/respondents. The several orders passed by learned Judge of the First Appellate Court, were challenged by the petitioner before the High Court in C.O. No. 4042 of 2010. It appears from order dated 17th January, 2011 passed by this Court in C.O. No. 4042 of 2010 that this High Court observed that the appeal along with the application under Order 41 Rule 27 of the Code of Civil Procedure may be heard together and learned Appellate Court is free to dispose of the application under Order 39 Rule 7 of the Code of Civil Procedure independently. It is also observed in the said order that learned Judge of the First Appellate Court shall proceed with the appeal along with application under Order 41 Rule 27 of the Code of Civil Procedure and the appeal shall be disposed of within a period of three months from the date of communication of the order. The order, by which learned Judge of the First Appellate Court disposed of the application under Order 39 Rule 7 of the Code of Civil Procedure, was again challenged by the petitioner before this Court in C.O. No. 1752 of 2011. It appears from the order dated 23rd September, 2011 passed in C.O. No. 1752 of 2011 that this Court observed that the application under Order 39 Rule 7 of the Code of Civil Procedure is premature unless and until the fate of the application for production of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure is decided. It is also observed in the said order that in course of hearing of the appeal and the application for production of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure in terms of earlier direction of this Court, the Lower Appellate Court may, if satisfied, be inclined to allow the application under Order 41 Rule 27 of the Code of Civil Procedure and permit the petitioner to produce additional evidence. Lastly, it is observed in the said order that in the event the Lower Appellate Court allows the application under Order 41 Rule 27 of the Code, the petitioner shall be entitled to apply for local inspection of the premises in question, provided such application is preferred by the petitioner. Thereafter, First Appellate Court took up the application under Order 41 Rule 27 of the Code of Civil Procedure for hearing and rejected the said application after hearing both the parties by the impugned order which is under challenge in this revision.

(3.) MR . Siddhartha Banerjee, learned counsel appearing on behalf of the opposite parties has referred to the relevant portion of the orders passed by this Court in C.O. No. 4042 of 2010 and C.O. No. 1752 of 2011 in order to submit that there is no specific direction of this Court for hearing of the application under Order 41 Rule 27 of the Code of Civil Procedure along with the appeal pending before the First Appellate Court. Mr. Banerjee also submits that the suit for eviction of the petitioner/appellant was instituted on 7th July, 1982 and almost after 28 years on 3rd September, 2010, the petitioner filed the application under Order 41 Rule 27 of the Code of Civil Procedure before the Appellate Court to adduce additional evidence to establish that the opposite parties/respondents have suitable alternative accommodation which is a tenanted premises of the opposite parties and the same is used not for the residence but for the business of the opposite parties. According to Mr. Banerjee, the petitioner has taken dilatory tactics by filing frivolous application before the learned Court below.