BAIDYANATH MUKHERJEE Vs. JANKI DEVI VERMA

JUDGEMENT

(1.) HEARD the parties. Plaintiff filed Title (Eviction) Suit No. 160 of 1982 for eviction of defendants under the provisions of Bihar Buildings (Lease, Rent and Eviction) Control Act. 1982, on the grounds of personal necessity, subletting, breach of terms of tenancy and default in payment of rent, which was dismissed on 26.4.1989. Plaintiff thereafter preferred Title Appeal No. 41 of 1989, which has been allowed by impugned judgment dated 27.2.1989 and the suit has been decreed. Hence, defendants have filed the present Second Appeal. During pendency of appeal certain amendments were allowed in plaint and further evidence was permitted to be adduced at appellate stage. The suit was decreed on the ground of personal necessity and breach of terms of tenancy committed by defendants. In my view, as suggested by the defendants -appellants the following substantial question of law arises to be considered and decided in this Second Appeal,

(2.) "Whether the Court of appeal below erred in law in recording further evidence itself and deciding the appeal on the basis of said evidence"? Originally the plaintiffs case was that she purchased the suit premises, described in scheduled A to the plaint on 25.4.1962 for her own use and occupation and for the benefits of her children. Her husband died on 20.2.1962, leaving behind her two sons and eight daughters. In the year 1964 she wantedto open a sweetmeat shop in the suit premises in order to maintain her huge family. Atthe appellate stage, by order dated 11.9.1998 on account of change in circumstances and due to such long lapse of time, plaint was amended to the effect that her son, Jayant Kumar Verma got employment in State Bank of India. Her second son. Hemant Kumar Verma was still unemployed and intended to carry business in the suit premises. Her daughter, Anuradha Verma, who became widow also required the premises for some business. Her eldest daughter. Kalyaneshwari Verma was still unmarried and was fully dependent on the plaintiff. Another daughter, Rita Verma was also unmarried and fully dependent on her. Court of appeal below thereafter permitted both parties to adduce oral and documentary evidence. The aforesaid evidence adduced at the appellate stage were considered in detail and thereafter, Court of appeal below came to conclusion that plaintiffs daughter Rita Verma was aged about 40 -42 years and was unmarried. She was fully dependent upon the plaintiff and was also residing with her Plaintiffs need to engage Rita Verma in business, to be started in the suit premises, was held to be genuine and reasonable requirement. It was also established that other rooms did not belong to the plaintiff and so she could not have utilised those Katras for her personal necessity. It was, therefore, held that the plaintiff and her un -married daughter Miss. Rita Verma bonafidely and reasonably required the suit premises for personal need. The Court of appeal below thereafter also considered question of partial eviction. The dimension of the suit shop was 15 feet wide North to South and 55 feet long East to West and in case it was devided into two parts, i.e. 7.1/2 + 7.1/2, it was not possible to run a shop in that small space. Therefore, plaintiffs requirement was not to be fulfilled on partial eviction of the defendants. In my opinion, it was within the domain of the Court of appeal below to permit amendment in pleadings, on account of subsequent events relevant for deciding the lis and allow the parties to adduce further evidence and being final Court of fact scrutinise the entire evidence, both oral and documentary and decide the appeal on its own merit and in accordance with law. So the Court of appeal below did not commit any illegality in considering further evidence adduced at appellate stage.

(3.) APPEAL dismissed.