BINAPANI DAS Vs. S.C. DAS

JUDGEMENT

(1.) THIS first appeal is at the instance of the tenant-defendants and is directed against the judgment and decree dated August 29, 1987, passed by the learned Judge, 6th Bench, City Civil Court at Calcutta in Ejectment Suit No. 1050 of 1979.

(2.) THE present suit was filed by the respondent for eviction of the appellants who were tenants in respect of 2 rooms and kitchen on the second floor. Along with this suit, the present respondent filed another suit, being Ejectment Suit No. 1042 of 1979 for eviction of another tenant who was holding 3 rooms, bath and kitchen in the first floor of the said building. Both the suits were heard analogously and the learned Judge by common judgment dated August 29, 1987, was pleased to decree both the suits.

(3.) IN the instant appeal, an application for taking note of subsequent event has been filed in terms of Order 41 Rule 27 of the Code of Civil Procedure by the present appellants. By the said application, the appellants have drawn our attention to the fact that the plaintiff has already taken possession of 3 rooms of the first floor of the suit property and that the daughter of the plaintiff has already been married and she is staying in her matrimonial home and at the same time, she is an employee of Indian Overseas Bank. The fact that the respondent has obtained possession of the accommodation of the other tenant has not been disputed by Mr. Ghosal appearing on behalf of the respondent. Mr. Ghosal has also not denied that his client's daughter has already been married and she is staying in her husband's house and that she is working in Indian Overseas Bank. It is also undisputed that the other tenant who suffered decree, though preferred an appeal, ultimately withdrew the same and the respondent has already obtained possession. Therefore, the respondent is now in possession of 3 rooms, bath, privy and kitchen. From the materials on record, it appears that the present accommodation available to the plaintiff/respondent will be sufficient if he is not required to accommodate his married daughter. We find from the materials on record that there is no sufficient evidence to indicate that the daughter was really willing to come and stay at the house of the respondent. In view of the fact that the present application for taking note of additional evidence has been filed, and in view of the fact that the facts stated therein are disputed to some extent by the respondent, in our opinion, on the basis of affidavit, this disputed fact cannot be adjudicated. In our opinion, in the facts and circumstances of the case, the plaintiff should be given liberty to amend his plaint to incorporate the ground for requirement of his married daughter, if he is so advised. If any such application for amendment is made, the same should be allowed and the appellants should be given an opportunity to file additional written statement for controverting those statements. In view of the materials on record, we are not in a position to adjudicate the present claim of the plaintiff/respondent, and as such, we are left with no other alternative but to set aside the judgment and decree passed by the learned trial Judge and to send the matter back to the learned trial Judge under the provision of Order 41 Rule 23A of the Code of Civil Procedure. It is also not possible for us to arrive at a concluded finding as regards correctness or otherwise of the entirety of the allegations made in the application for additional evidence filed on behalf of the appellants. Thus, the judgment and decree passed by the learned trial Judge are set aside and the matter is sent back on remand to the learned trial Judge for adjudicating the matter afresh after giving the parties opportunity to lead evidence only on the question as to whether the plaintiff requires any accommodation for his married daughter. Since the suit has been filed in the year 1979, it is desirable that the learned trial Judge should dispose of the matter within a short period, in no case later than 4 months from the date of communication of the order and receipt of records. Lower Court records be sent down forthwith. There will be no order as to costs. Appeal allowed.