Calcutta High Court (Appellete Side)
Smt. Asha Debi & Anr vs Moti Lal Shaw & Ors on 21 February, 2017
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Mir Dara Sheko
S.A.T. 534 of 2016
(CAN 11705 of 2016)
Smt. Asha Debi & Anr.
-Versus-
Moti Lal Shaw & Ors.
For the Defendants/ : Mr. Bikash Kumar Chatterjee,
Appellants Mr. Susenjit Banik.
For the Plaintiffs/ : Ms. Sangha Mitra Nandy.
Respondents
Heard on: 21st February, 2017. Judgement on: 21st February, 2017. Jyotirmay Bhattacharya, J. :-
Defect in the vakalatnama as pointed out by the Stamp Reporter in his report, is rectified with the leave granted by this Court.
Let the certified copy of the decree of the appeal court which is filed in court today, be kept with the record and the same be treated as a part of the memorandum of appeal.
Considering the valuation of the first appeal and the court fees paid thereon, we are of the view that the instant second appeal has been properly valued and sufficient court fees have been paid thereon.
Thus, the appeal is regularised.
This appeal will be heard on the following substantial questions of law.
I. Whether the learned courts below were justified in passing a decree of eviction against the defendants/appellants on the ground of post suit default or not?
II. Whether the learned first appellate court was justified in not considering the challans which were filed by the defendants/appellants before the learned first appellate court in exercise of its jurisdiction under Order 41 Rule 27(1)(b) of the Code of Civil Procedure, while disposing of the appeal or not?
Since the plaintiffs/respondents are represented by Ms. Nandy, learned advocate, service of notice of appeal upon the respondents is dispensed with.
The appeal is thus, treated ready as regards service.
Since the pure question of law is raised in this appeal which in our view, can be decided even without the lower court records, the lower court records need not be called for for the time being.
Re: CAN 11705 of 2016 After the appeal was admitted for hearing, when the application for stay was taken up for consideration by this Court, we were requested by the learned counsel appearing for the parties to dispose of the appeal itself on merit on the basis of the materials available before us. We were also informed by the learned counsel of the parties that the materials which are relevant for the purpose of disposal of this appeal, are all available and as such, we have decided to dispose of the appeal itself on merit.
We have heard the learned counsel appearing for the parties on the merit of this appeal. We have considered the impugned orders and the relevant materials which are necessary for disposal of the appeal.
Let us now consider the merit of the instant appeal in the facts of the present case. Here is the case where we find that an eviction suit was filed by the plaintiffs/landlord against the defendants/appellants on various grounds available under the West Bengal Premises Tenancy Act, 1997. The defendants appeared in the said suit and contested the same by filing written statement. Default in payment of rent was one of the grounds on which eviction was sought for by the plaintiffs/landlord against the defendants.
The parties led their evidence in support of their respective claims. Ultimately after considering the pleadings of the parties and their evidence, the learned trial court held that the plaintiffs could not prove the grounds of eviction save and except the ground of default in payment of rent. The learned Trial Judge held that after appearing in the said suit, the defendants filed an application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 and in pursuance of the order passed by the learned Trial Court in connection therewith, the defendants deposited all arrear rent. They also paid the current monthly rent upto April, 2010 regularly to the credit of the plaintiffs. The learned trial court ultimately found that the defendants have not deposited any challan showing the deposit of rent from the month of May, 2010. Accordingly, the learned Trial Judge held that the defendants are defaulter in payment of rent and passed a decree for eviction against the defendants/appellants on the ground of default.
Being aggrieved by and dissatisfied with the said judgement and decree of the learned Trial Court, the defendants/appellants filed an appeal before the learned first appellate court.
They also took out an application under Order 41 Rule 27 of the Code of Civil Procedure seeking permission from the court for adducing further evidence in the appeal. As a matter of fact, they submitted photostat copy of all the challans showing deposit of rent from the month of May, 2010 onwards along with the said application under Order 41 Rule 27 of the Code of Civil Procedure. The learned first appellate court was not satisfied with the explanation given by the appellants for not submitting those challans before the learned Trial Judge. Thus, the learned first appellate court held that the said application under Order 41 Rule 27 of the Code of Civil Procedure deserved no merit for consideration. Accordingly, the application under Order 41 Rule 27 of the Code of Civil Procedure filed by the defendants/appellants, was rejected by the learned first appellate court. Consequently the findings of the learned trial court was affirmed. The appeal thus, stood dismissed.
Challenging the said judgement and decree of the learned first appellate court, the instant second appeal has been filed.
The appeal has already been admitted for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure.
Two substantial questions of law have also been framed while admitting this appeal for hearing.
Let us now consider the merit of the appeal with reference to the aforesaid substantial questions of law.
Let us first of all consider the legality of the judgements and decrees of the courts below so far as those judgements and decrees relate to grant of decree for eviction on the ground of post suit default.
For post suit default, the defence of the defendants against eviction, could have been struck out under Section 7(3) of the said Act. The decree for eviction could not have been passed on the ground of post suit default. The decree for eviction can only be passed on the basis of the pre suit default.
Such being the settled position in law, we hold that both the courts below committed illegality in passing a decree for eviction on the ground of post suit default in payment of rent. Judgements and decrees passed by the courts below are thus, liable to be set aside.
Let us now consider the justifiability of other substantial question of law, framed in this appeal.
We have already indicated above that the learned first appellate court rejected the appellants' application under Order 41 Rule 27 of the Code of Civil Procedure as the defendants/appellants could not prove their due diligence in taking steps for production of those documents before the learned trial court at the appropriate stage.
Order 41 Rule 27 of the Code of Civil Procedure contemplates three situations under which a party can be granted permission to adduce further evidence in the appeal.
Order 41 Rule 27(1)(a) of the Code of Civil Procedure contemplates a situation where the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted.
Order 41 Rule 27(1)(aa) of the Code of Civil Procedure contemplates a situation where the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed.
Order 41 Rule 27 (1)(b) of the Code of Civil Procedure contemplates a situation where the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgement, or for any other substantial cause.
These three options are alternative to each other. So even if the situation as contemplated under Order 41 Rule 27(1)(a) and/or under Order 41 Rule 271(aa) of the Code of Civil Procedure are not satisfied still then, the court cannot refuse a party to adduce additional evidence in the appeal under Order 41 Rule 27(1)(b) of the Code of Civil Procedure if the Appeal Court requires the said document for pronouncing judgement in the appeal.
Here is the case where we find that the appellants filed an application under Order 41 Rule 27 of the Code of Civil Procedure enclosing therewith the photostat copy of all the challans which were deposited showing deposit of rent from the month of May, 2010 onwards during the pendency of the suit. Issue which was raised before the courts below was that the defendants/appellants could not produce any material to show that they deposited rent during the said period. Such being the issue before the learned first appellate court, in our view, the learned first appellate court ought not to have rejected the application under Order 41 Rule 27 of the Code of Civil Procedure filed by the defendants/appellants as in our view, the learned first appellate court could have answered the said issue effectively only after considering the challans which were sought to be produced by the defendants/appellants by way of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure.
Be that as it may, the court cannot be oblivious of the fact that those deposits were all made in court itself. Had the record been examined by the learned first appellate court, it would have revealed therefrom that evidence regarding deposit of rent for the period from May, 2010 onwards were all very much on the record itself because civil deposit cannot be made unless and until the challans are passed by the sheristedar viz. officer of the court. Even after the deposits are made, it is the duty of the officer of the court to record such deposit in the court's record.
Photostat copy of the challans have also been supplied to Ms. Nandy, learned advocate for the respondents before commencement of hearing of the appeal.
Such being the position, we are of the view that the learned first appellate court should have allowed the appellants' application under Order 41 Rule 27 of the Code of Civil Procedure and thereafter could have proceeded with the appeal for its disposal.
However, we feel that no useful purpose will be served by sending it back to the learned first appellate court for reconsideration of the appeal on merit after considering their challans deposited by the defendants/appellants along with their application under Order 41 Rule 27 of the Code of Civil Procedure as we have already held hereinabove that the decree for eviction cannot be passed against the defendants/tenant on the ground of post suit default.
Both the courts below concurrently held that there was no pre suit default on the part of the defendants/appellants.
Hence, we set aside the judgements and decrees of both the courts below. The appeal is thus, allowed.
Both the appeal and the application are thus, disposed of.
Let one set of challans showing deposit of rent from May, 2010 onwards which are filed in court today, be kept with the record.
Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.
(Jyotirmay Bhattacharya, J.) (Mir Dara Sheko, J.) dp