Calcutta High Court (Appellete Side)
Smt. Vandana Agarwalla & Anr vs State Of West Bengal & Anr on 28 August, 2017
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
28.08.2017
srm
W.P.L.R.T. No. 51 of 2017
Smt. Vandana Agarwalla & Anr.
Versus
State of West Bengal & Anr.
Mr. Aniruddha Chatterjee, ld. Advocate
Mr. Asim Kumar Roy, ld. Advocate
...for the Petitioners.
Mr. Om Narayan Rai, ld. Advocate
Mr. Prashant Agarwal, ld. Advocate
Ms. Rashmi Kedia, ld. Advocate
...for the private respondent No.2.
None appears on behalf of the State‐respondents when the matter is called on. No accommodation is prayed for.
Let affidavit‐in‐opposition filed by the respondent No.2 and reply thereto filed on behalf of the petitioners be kept on record.
This is an application filed under Article 226 of the Constitution of India assailing an order dated May 11, 2017 passed by the West Bengal Land Reforms Tenancy Tribunal, 1st Bench, in connection with two miscellaneous applications bearing M.A. 1061 of 2016 and M.A. 35 of 2017 arising out of the original application bearing O.A.(P) 2460 of 2015 (LRTT).
By virtue of the impugned order the above miscellaneous applications were dismissed. The former application was filed under Order 2 XLI Rule 27 of the Code of Civil Procedure for adducing evidence before the learned Tribunal and the later one was filed before the learned Tribunal for securing an amount of Rs.6,60,14,401/‐ together with Rs.2 lakhs and odd claiming the same to be the monthly fair rent of the property in question. The above original application was arising out of an order passed by the Additional Rent Controller, Kolkata in R.C. Case No.68 of 2004 fixing the fair rent of the property in question. The above original application was filed by the respondent No.2 before the learned Tribunal.
Having heard the learned Counsel appearing for the respective parties as also after considering the facts and circumstances of this case, we find that former application filed under Order XLI Rule 27 was rejected by the learned Tribunal on the basis of the findings that there was no evidence on record making an approach before the Rent Controller to produce the above additional evidence before him or that no reason was assigned for non‐production of the above additional evidence before the Rent Controller.
After taking into consideration the provisions of Order XLI Rule 27 of the Code of Civil Procedure, we find that by virtue of the provisions of Order XLI Rule 27(2) of the Code of Civil Procedure the appellate Court is vested with the power to ascertain the necessity of production of additional evidence before the Court and in the event the appellate Court finds its 3 necessary to take such additional evidence into consideration for pronouncing the judgment such a prayer made on behalf of a party can be allowed. In that event the application has to be taken up at the time of final hearing of the appeal pending before the appellate Court.
That apart we find that the sheet anchor of the claim of the petitioners was a decision of the Hon'ble Supreme Court according to which cost of construction of the premises concerned should be taken into consideration for fixing the fair rent. The learned Tribunal while deciding the aforesaid former application of the petitioners considered the applicability of the aforesaid judgment assigning the reason therefor. In that event nothing remains to be decided so far as the above point of law was concerned at the time of final hearing of the appeal pending before the learned Tribunal. From that point of view, the aforesaid order passed in respect of the former application cannot be sustain in law.
So far as the later application is concerned, it is submitted before us by the learned Counsel appearing for the petitioners, on instruction, that an execution proceeding has already been initiated for execution of the order passed by the Rent Controller fixing the monthly fair rent of the property in question. Therefore, the later application need not require further 4 consideration. Petitioners will be at liberty to take steps in accordance with law so far as the aforesaid execution proceeding is concerned.
In view of the above, the impugned order is quashed and set aside partially so far as it relates to the former application bearing M.A. 1061 of 2016 is concerned.
This writ application is, thus, disposed of with the hope and trust that the learned Tribunal will dispose of the original application together with M.A. 1061 of 2016 expeditiously and preferably within a period of four months from the date of communication of this order without adjourning the hearing of the matter unnecessarily on the prayers which may be made either of the parties.
There will be, however, no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
( Debasish Kar Gupta, J. ) (Sahidullah Munshi, J.)