Patna High Court
Mohanlal Subhash Chandra And Anr. vs Badrilal Agarwalla on 28 September, 1992
Equivalent citations: 1993(2)BLJR1161
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This second appeal arises out of a judgment and decree dated 11th April, 1991 passed by Sri Tarkeshwar Prasad, Additional District Judge, Jamshedpur in Title (Eviction) appeal No. 4/28 of 1986-87 whereby and thereunder the said learned court reversed the judgment and decree dated 20th December, 1985 passed by Sri Rameshwar Rai, Munsif, Jamshedpur in Title Suit No. 420 of 1980 dismissing the plaintiff-respondent's suit.
2. The fact of the matter lies in a very narrow compass:
The plaintiff-respondent filed the aforementioned suit for a decree for eviction as against the defendant/appellant inter alia on the ground that his first and second son namely Durga Dutta and Gajanand were sitting idle and the suit premises is required in order to enable them to carry on business. The defence put-forth by the defendant-appellant was that the plaintiff had filed the aforementioned suit mala fide inasmuch as the eldest son is insane and thus not capable of carrying on any business and his second son is already engaged in a business. The defendant's further defence was that the plaintiff disconnected the electrical connection of the suit premises and an application for restoration of the electrical connection of the suit premises was filed by tie defendant and as the same was allowed, the aforementioned suit was filed by the plaintiff mala fide.
3. The learned trial court in view of the rival contentions of the parties, framed the following issues:
(1) Is the suit maintainable in its present form and for the reliefs claimed ?
(2) Has the plaintiff valid cause of action or right to bring the suit against the defendants ?
(3) Is the suit bad for mis-joinder and non-joinder of necessary parties?
(4) Is the suit barred by law of estoppel, waiver, and acquiscence?
(5) Is the suit premises required in bonafide use and occupation of the plaintiff's sons for running the business?
(6) Have the defendants caused damage to the walls of the suit room by constructing permanent structures without plaintiff's consent in breach of the tenancy?
(7) Are the defendants entitled to be evicted from the suit premises on the ground of personal necessity as well as causing damage to the walls of the suit room?
(8) To what relief or reliefs the plaintiff is entitled to?
4. Learned trial court upon consideration of the evidences on records came to the conclusion that the plaintiff has failed to prove his case of bonafide requirement of the suit premises. He, therefore, dismissed the suit.
5. The plaintiff preferred an appeal as against the said judgment and decree on 4-2-1986. On 20th June, 1986, the plaintiff filed an application for amendment of the plaint alleging inter alia therein that his third son Pawan Kumar Agarwal has become major and as his fourth son has discontinued his studies and he is also sitting idle and thus the suit premises are required for carrying on business by his third and fourth sons also. The said application for amendment was allowed. By an order dated 28-3-1988, Sri S.M. Alam, 3rd Addl. District Judge, Jamshedpur, directed the trial court to record additional evidence to the extent of subsequent events mentioned in the application for amendment of plaint dated 20th June, 1987 and the rejoinder filed thereto by action for the defendant-respondent on 1-9-1987.
6. On or about 20th April, 1990 another application was filed on behalf of the appellant purported to be under Order VI, Rule 17 of the Code of Civil Procedure for the purpose of bringing certain subsequent events on records of the case by insertion of new paragraph namely, paragraph No. 4 (b), which is to the following effect:
That however since the month of January 1990 the plaintiff's third son Pawan Kumar Agarwalla finding no other place for his business, has been doing the business of manufacturing Battery in the verandah of the ground floor partition of the suit house and the open space adjoining the suit house. The plaintiff's fourth son namely, Kailash Kumar Agarwalla also from the same time, has been doing business of castes of tape recorders, in the verandah of the ground floor partition of the suit house. For doing the above-mentioned businesses properly and in a decent way, the said two sons need the suit shop as there is no outer suitable room lying vacant doing their respective business.
7. The appellant filed a rejoinder to the said application on 28th April, 1990 wherein inter alia the purported requirement of the plaintiff for his third and fourth sons was denied and disputed, In that rejoinder, it has further been stated as follow:
(6) That as a matter of fact Badrilal being very old and unable to look after business has left their joint family grocery business.
(7) That the plaintiff having purchased a big house with as many four shops premises and residential buildings near Community Centre at Sonari Market the plaintiff has got absolutely no necessity of any further premises.
(8) That the ground floor portion of the suit building has now got enough space and will suffice the need of other sons of the plaintiff.
(9) That as the space and house premises have been increased to a large extent the plaintiff does not require that suit premises for any of visions.
(10) That the plaintiff has no business of his own and the plaintiff 3rd son does not carry on manufacturing of Battery business. A battery manufacturing business cannot be started in the suit holding.
8. From a perusal of the order sheet of Title Appeal No. 4/86, it appears that no order was passed on the application for amendment of plaint filed on behalf of the plaintiff-respondent. However, it appears that despite the same, on 18-1-91, appellant's witness No. 1 was allowed to be examined, cross-examined and discharged. He proved a booking order receipt as Ext. 3 by way of additional evidence.
9. By reason of the impugned judgment, learned court below allowed the appeal holding:
But so far requirements of the suit premises by the plaintiff on the personal necessity is concerned, 1 find as discussed above even if the findings of the learned lower court is taken in toto that the appellant did not require the suit premises for his first and second sons but so far his third and fourth sons are concerned who have admittedly become major and they are keen to start their own business and they are also doing the same sort of their own business in a open space on the verandah outside of the suit premises and even below the stair-case of the verandah, certainly their requirement of the suit premises for starting their own business is quite genuine, bonafide and in good faith and on this score alone defendant/respondent is liable for eviction from the suit premises on the ground of personal necessity of the appellant/ plaintiff.
10. Mr. M.V. Eqbal learned Counsel appearing on behalf of the appellant has submitted that the learned court of appeal below had no jurisdiction to allow the plaintiff to adduce additional evidence purported to be in exercise of power conferred upon it under Order XLI, Rule 27 of the Code of Civil Procedure as neither an application was filed in that regard nor the application for amendment of the plaint filed by the appellant on 20th April, 1990 was allowed. Learned Counsel further submitted that from a perusal of the entire judgment, it would appear that the learned court below has not considered the evidence adduced on behalf of the parties nor did he take into consideration the evidence recorded by the trial court pursuant to the order dated 21-3-1988 whereby the matter was retted to the trial Court for recording additional evidence in terms of Order XLI, Rule 28 of the Code of Civil Procedure
11. According to the learned Counsel, thus, the entire Judgment is vitiated in law.
12. Mr. N.K, Prasad learned Counsel appearing on behalf of the plaintiff-respondent on the other hand submitted that Ext. 3 was taken in as additional evidence without any objection raised on behalf of the respondent and further as he was cross-examined, appellant is estopped and precluded from questioning the said document. It was further submitted that the evidence adduced on behalf of the defendants was in departure from the statements made in paragraph 5 of the written statement and further in view of the fact that from the evidences adduced on behalf of the defendant, namely, Exts. D and D/1, the requirement of the plaintiff for setting up of the business of his sons bad been proved, this Court should not interfere with the findings arrived at by the learned court of appeal below.
13. It was further submitted that several subsequent events have been brought on records for the purpose of showing that now even the first son of the plaintiff has recovered from his insanity and the fourth son had been doing business in battery and for that purpose, the suit premises is required. It was further submitted that from Exts. D and D/1 it would appear that even the requirement of the third son has been proved as he has been carrying on his business on the extended portion of a verandah.
Learned Counsel submitted that the totality of circumstances has to be taken into consideration for the purpose of coming to a finding as to whether the plaintiff has been able to prove his bona fide requirement or not.
14. Learned Counsel submitted that in this view of the matter, this Court should not substitute its views in place of that of the learned court of appeal below. Learned Counsel in this connection has relied upon a decision of the Supreme Court in 1988 PLJR 33(SC).
15. By an order dated 28-4-1991, the following substantial question of law were formulated.
A. Whether the learned court of appeal below erred in law in allowing the successive applications for amendment of the plaint?
B. Whether the learned court of appeal below could have considered the evidences recorded by the trial court without recording its findings thereof ?
C. Whether the learned court of appeal below erred in law in permitting the plaintiff/respondent to adduce evidence although it did not specifically grant leave to him to amend the plaint which was filed for the second time before the appellate court?
16. From the conspectus of facts as noticed hereinbefore it is evident that no order was passed on the application filed by the plaintiff on 20th April, 1990 before the learned court of appeal below under Order VI, Rule 17 of the Code of Civil Procedure. Mr. N.K. Prasad has also not brought to my notice any application filed on behalf of the plaintiff of adduction of additional evidence.
17. It appears strange that although an application for amendment was filed on 20ih June, 1987, which as noticed hereinbefore was allowed by an order dated 17-3-1988 and in pursuance whereof, the learned court of appeal below passed an order in terms of Order XLI, Rule 28 of the Coda of Civil Procedure directing the trial court to record evidences, it did not chose to discuss the said evidences brought o& records. From a perusal of the judgment, it appears that there has also been no discussion whatsoever with regard to the evidence adduced on behalf of the defendants.
18. Mr. Eqbal has drawn my attention to the evidences of D.Ws. 7, 8, 9 and 10 for the purpose of showing that the said evidences were required to be taken into consideration by the court of appeal below in order to arrive at a finding as to whether the plaintiff had been able to prove his requirement for the suit premises or not.
19. Learned Counsel appears to be correct. There cannot be any doubt that the court below has no jurisdiction to take additional evidence unless and until the ingredients of Order XLI, Rule 27 of the Code of Civil Procedure were fulfilled. It is a well settled principle of law that an evidence which is beyond the pleadings of the parties is inadmissible in evidence.
20. It is true that the appellate court is entitled to take into consideration the subsequent event and for that purpose not only it may allow an application for amendment of the plaint, but also it may allow the parties to lead additional evidence with regard to the said subsequent events. But before a party is allowed to lead additional evidence, the court must allow the application for amendment of plaint and permit the parties to appeal to lead additional evidence if the ingredients of Order XLI, Rule 27, CPC are satisfied.
Further the court of first appeal being a final court of fact, it was required to take into consideration the entire evidences on records. The court of appeal below has clearly failed to discharge his statutory functions enjoined upon him under the Code of Civil Procedure.
21. The Court of first appeal further was required to take into consideration even the subsequent events brought on record by way of additional evidence together with the evidence adduced by the parties before the trial court as also the evidence recorded by the trial court in terms of its order dated 28-3-1988.
22. The court of appeal below misdirected itself insofar it failed to perform its duties.
As indicated hereinbefore, the counsel for both the parties have submitted that the learned court of appeal below had not taken into consideration the evidence on records with regard to the bonafide requirement of the plaintiff in respect of the suit premises so that his sons may set up separate businesses. As indicated hereinbefore, Mr. N.K. Prasad has also submitted that the learned court of appeal below has failed to take into consideration the subsequent events that the first son of the plaintiff had recovered from his insanity and has been looking after the business and similarly he failed to take into consideration other vital aspects of the matter.
23. In this situation, in my opinion, the entire matter requires reconsideration at the hands of the learned court of appeal below. Learned Court of appeal below before taking into consideration the additional evidences recorded by it on 18-1-1991 shall consider as to whether the plaintiff's application for amendment of plaint filed on 20th April, 1990 should be allowed or not. Learned court below shall also consider the effect of the rejoinder filed by the defendant.
24. For the reasons aforementioned, appeal is allowed. The judgment and decree passed by the learned court of appeal below is set aside and the matter is remitted to him for a fresh decision in accordance with law. In the facts and circumstances of this case, there shall be no order as to costs.
However, the learned court of appeal below should consider the desirability of disposing of the appeal at an early date.