BRAHMA DUTTA CHOWDHURY Vs. RANJIT CHOWDHURY

JUDGEMENT

(1.) ORDER dated 4.11.92 passed by the 1st Additional District Judge at Alipore, 24-Parganas, allowing an application under Order 6 Rule 17 read with Order 8 Rule 9 of the Code of Civil Procedure for amendment of the plaint is impugned in this revisional application filed under Section 115 of the Code of Civil Procedure.

(2.) THE O. Ps. as plaintiffs, filed Title suit No. 123 of 1977 for eviction of the petitioner-defendant on the ground of reasonable requirement for own use and occupation. The learned Munsif by his judgment dismissed the suit, against which Title Appeal No. 771 of 1980 was preferred and the learned 1st Additional District Judge allowed the appeal reversing the judgment of the learned Munsif. Against this decision, a 2nd appeal being S.A. No. 1001 of 1982 was taken and A.K. Bhattacharjee, J. by his order dated 21st. March, 1991 remanded back the matter to the 1st Appellate Court 'for a fresh decision according to law in the light of the observations made above. The parties would be allowed to adduce fresh evidence if they so liked." It appears from the said judgment that during the hearing of the 2nd Appeal the appellant- tenant filed a petition stating that during the pendency of the appeal the respondent-landlord had acquired some more accommodation as some of them had moved to a newly purchased flat. It was accordingly urged that this subsequent event affecting the position as to landlord's accommodation should be taken into account and the matter should be remanded to the lower court for a fresh decision taking into consideration the changed circumstances. Against the same, it was submitted on behalf of the respondent-landlord that in spite of availability of some additional accommodation, the accommodation in a rented house should not be considered as suitable accommodation fulfilling landlord's requirement. Considering the submissions of the learned advocates of both sides the learned Judge in the 2nd Appeal held that in his opinion "The lower court should be directed to have its own views of the matter afresh in consideration of the merits of the case in the changed circumstances alleged". With this observation, the prayer for remand was allowed and the final order passed as already quoted above.

(3.) IN the impugned order the learned Court below stated that although in the remand order there was no direction to allow the plaintiff to amend the plaint, yet as he was to form his own views afresh in consideration of the merits of the case due to the changed circumstances as per direction of this court, the prayer for amendment was being allowed.