Calcutta High Court
Nirod Kanta Bhakta vs Animesh Saha on 19 October, 2001
Equivalent citations: (2002)2CALLT134(HC), 2002(2)CHN508
JUDGMENT M.K. Basu, J.
1. This second Appeal is directed against the judgment and order dated 9.12.1998 passed by the learned Civil Judge (Sr. Division), 1st Court, Barasat, North-24 Parganas as the First Appellate Court in Title Appeal No. 113 of 1997 which arose out of the judgment and order dated 30th August, 1998 passed by the learned Munsif, 3rd Court, Sealdah in T.S. No. 96 Of 1990 of that Court. The learned Munsif decreed the suit on contest and while granting a decree of khas possession in favour of the plaintiff after evicting the defendant from the suit property, he directed the defendant-tenant to vacate the suit property within sixty days from the date of that order. Being aggrieved by that Judgment and order the tenant-defendant preferred the said title Appeal before the Court of District Judge (Sr. Division) wherefrom it was transferred to the Court of the Civil Judge (Sr. Divn.) who heard it and passed the impugned order dismissing the appeal/and affirming the impugned judgment and order of the trial Court.
2. Being aggrieved thereby the defendant-tenant has preferred this Second Appeal challenging the Judgment and order of the Court below as erroneous and illegal and hence liable to be set aside. The plaintiff-landlord filed the suit for eviction of the defendant tenant on the grounds of his default in payment of rent by the tenant and also of reasonable requirement on the part of the landlord. The defendant contested the suit by filing a written statement denying the material allegations of the plaintiff. He denied that he was a defaulter in payment of rent, since he had already deposited all the rents due to the landlord for the suit premises and secondly, his case was that the plaintiff had no reasonable requirement for the suit property for his own use and occupation or for the use and occupation by the other members of his family as alleged, because the accommodation which was in his possession at that time was quite sufficient for the purpose.
3. As regards the question whether the defendant had defaulted in payment of rent due to the plaintiff-landlord it was found by the trial Court that he was not a defaulter and that finding has not been challenged by the plaintiff.
4. But on the question whether the plaintiff reasonably required the suit premises for his own use and occupation the trial Court after considering the evidence including the report of the local inspection Commissioner came to the finding that the plea of the plaintiffs reasonable requirement of the suit premises had been established and he decided this issue against the defendant-tenant and considering the fact that the plaintiff had no other premises except the suit property he decreed the suit.
5. Before the first appellate Court, therefore, the compass of enquiry became limited, namely, whether the findings of trial Court on the question of reasonable requirement had suffered any error, the findings of the trial Court on the other issues having not been challenged or disputed before him. The plaintiffs case is that he required, in all, five (5) bed rooms--One bed room for himself and his wife, one for his eldest son and his wife with a child, one bed room for his youngest son, one bed room for accommodating his two married daughters when they come to see their parents occasionally and another bed room for his maid-servant. Besides these bed rooms, the plaintiff required one store room for keeping and storing his various household articles, since he had to keep such articles on the open space. The plaintiff further requires an office room in connection with his business and consultancy. The trial Court has found that the plaintiff's requirement for office room has not been proved to be reasonable. But he has been satisfied that the plaintiffs alleged requirement for the other rooms, namely, five bed rooms and one store room has been substantiated. Therefore he has come to the conclusion that the plaintiff's requirement for the entire suit premises is genuine and accordingly he has decreed the suit in full.
6. The First Appellate Court has found that there was no dispute that the plaintiff required three bed rooms--one for himself, one for his one married son and one for his unmarried son, but dispute has been raised with regard to the plaintiff's claim for a bed room for the married daughters and a bed room for the maid-servant. According to the First Appellate Court, since the maid-servant engaged by the plaintiff is an adult lady and has to sleep in the dining space in the house where the plain tiff-respondent has been residing at present, it does not look nice or proper that such a female person should be compelled to sleep in an open space of the house, particularly when there are adult male members in the family and from that point of view plaintiff's demand for a separate bed room for the maid servant is not unreasonable and the learned Judge has in this connection relied upon a decision reported in 1989(1) CLJ 131. The further finding of the First Appellate Court is that the claim of the plaintiff landlord for still another bed room for his married daughters is also reasonable in view of the fact that the married daughters were required to visit their parental home and stay there very often first in order to see their sick mother who had been suffering from cancer and since after their mother's death their necessity for visiting their father or brothers certainly cannot be said to have ceased, particularly when their father, the respondents, is an old man and a cardiac patient and lost his wife recently and in such circumstances the necessity for a room to be reserved for the married daughters to accommodate them at the time when they would come occasionally, becomes certainly indispensable. While considering this point the learned Judge has discussed the legal principles which have been enunciated by different High Courts. He has discussed the decisions of this Court and 1988(1) CLJ 278. In the latter cited by the learned Advocate for the appellant-tenant the question before Their Lordships was whether the findings of the Court's below on such a point, that is to say, whether a married daughter, son-in-law etc. could be treated as members of the family of the landlord-plaintiff and whether the ground of necessity for providing a room for them could form part of the landlord's reasonable requirement in an eviction suit and whether findings of the Courts below on such a point could be subject-matter of challenge in the second appeal before the High Court on the ground that it involved a question of law as envisaged under Section 100, Civil Procedure Code. While determining that question Their Lordships pronounced by way of obiter their verdict that where the old landlord and his aged wife had a married daughter as their only child and required the tenanted premises for the occupation of that daughter and her family so that they might live with them and they might be properly looked after and taken due care of in their old age, such requirement would amount to a requirement of the landlord "for his own occupation" within the meaning of Section 13(1)(ff) of the W.B.P.T. Act. In the former ruling cited above namely, (Sashi Sekhar Bhowmick v. Sushama Bose & Ors.). It was held by another Division Bench of this Court that to constitute reasonable requirement an element of need was necessary and where a claim by the landlord for an additional room for occaslonaly visits of his married daughters had been made and the plaintiff had adduced evidence to the effect that such daughters would often visit the disputed premises to assist their aged mother, it might be reasonable to make provision for such accommodation for the daughters, but in that case before Their Lordships there was no specific evidence to the effect that such married daughters of the plaintiff would be coming to the disputed premises with any such motive occasionally and a separate room would be required for this purpose. Moreover, Their Lordships in that case also found from the evidence that the widow mother of such daughters was occupying a large-sized bed room measuring 22'6" x 12'66" and there was absolutely no reason to suppose that the married daughters, when they come, could not be accommodated in that room particularly when it had not been developed by evidence that they would required a separate room. Their Lordships also observed that determination of such a question would depend upon the facts of a particular case and no hard and fast or Inflexible rule could be laid down. Thus, as the learned Court below has rightly found, these two rulings would not be strictly applicable to the facts and circumstances of the present case. On the other hand, so far as the question of legal Principals in respect of such a point is concerned, they extend support to the cause of the plaintiff-landlord. Learned First Appellate Court has also distinguished the decision reported in 96 CWN 57 from the present case on the ground that in that case the landlord had no son and the daughters were his only children. Moreover, according to learned Judge, in that decision this Court held that the demand of a landlord for a separate room for his married daughters who often used to come to see and to give company to her aged parent was not unreasonable. According to the learned Judge the proposition that the married daughters would, when they come to their parental home on occasions, stay and sleep in the drawing room is not decent or fair looking and rather humiliating for them. Finally therefore, the First Appellate Court has come to the conclusion that the respondent's demand for a separate room for the married daughters in the instant case is not unreasonable and the trial Court's decision to allot a separate bed room for them as claimed by the landlord has been uphold by him.
7. So far as the claim for a separate store room is concerned, the Court below has again approved of the findings of the trial Court that demand for such a room is reasonable on the part of the plaintiff-landlord who being of good status cannot be asked to keep his various household articles stacked on the landing space under the staircase.
8. Mr. Roy Chowdhury, learned counsel of the appellant has at the out set while conceding that the landlord's claim for a room for his two married daughters may be somewhat genuine has disputed the findings of the Courts below touching the respondent's claim of a separate bed room for the maid-servants. According to him such a claim for a separate room for the maid-servant was made in the plaint on the definite ground that the service of that maid-servant was essentially required for the purpose of constant nursing of the plaintiff's ailing wife who was suffering from cancer. But since during the pendency of the suit the plaintiffs wife died, this plea of necessity for the service of a maid-servant was no longer in existence and this ground also was naturally given a go-bye. But, as Mr. Roy Chowdhury contends, in the evidence the plaintiff made out a totally different case whereunder another maid-servant (PW2) who did not have to discharge the functions of nursing of the plaintiffs ailing wife was to be provided with a separate living room on the plea that she used to stay in the house of the plaintiff as a maid-servant Mr. Roy Chowdhury vehemently argues that the plaintiff has not made out any such case in his plaint and cannot be allowed to Introduce such a new story in his evidence and both the Courts below fell into error by relying upon such evidence which ought to have been treated as non-est being inadmissible; because, according to Mr. Roy Chowdhury, the case which has been made out in the plaint lost all significance, when during the pendency of the suit the ailing wife of the plaintiff expired. The cause of engagement of the maid-servant as stated in the plaint was no longer in existence and it was not the plaintiff's case that he was claiming a separate room for any and every maid-servant employed by him, but it was only for such a maid-servant as has been engaged by him for the purpose of nursing his ailing wife alone that he claimed one separate living room and in that view of the matter, as soon as that ailing wife breathed her last, such a necessity also disappeared and in the absence of the plaint having been amended the plaintiff could not be entitled to claim a separate room for any other maid-servant who was being engaged by him for discharging other types of household duties than the duty of nursing the ailing wife of the plaintiff. Thus, according to Mr. Roy Chowdhury the respondent landlord has genuine requirement for four bed rooms and not five bed rooms as has been found by the Courts below and in that view of the matter the entire suit premises need not be, vacated by the tenant and a portion thereof may be allocated for the tenant defendant and thereby it becomes a fit case for granting a decree of partial eviction in favour of the landlord. Mr. Roy Chowdhury draws my attention to the provisions of Section 13(4) of the W.B. Premises Tenancy Act, 1956 which lays down that where the landlord requires the premises on any of the grounds mentioned in Clause (f) of Clause (ft) of Sub-section (1) and the Court has the opinion that such requirement may be substantially satisfied by ejecting the tenant from a part only of the premises and allowing the tenant to continue in occupation of the rest, then if the tenant agrees to such occupation, the Court shall pass a decree accordingly and fix the proportionate rent for the portion remaining in the occupation of the tenant. Mr. Roy Chowdhury contends that these provisions will be attracted to the present case since the entire suit premises is not found really required by the landlord and a portion thereof which is not needed by the landlord may be allowed to be retained by the tenant and in this way the decree granted by the trial Court may be modified and for that purpose the suit should be remanded to the trial Court for a decision on such aspects after taking evidence from the parties on the points arising out thereof.
9. Mr. Ganguly, learned Advocate for the respondent, on the other hand strongly opposes such a contention and submits that there is no scope for awarding any such decree of partial eviction, inasmuch as, no such point was included into the substantial questions of law which was initially formulated by this Court thereby framing the compass within which this Court must keep Itself confined and now it cannot go beyond that frame work taking up a totally new point for consideration while disposing of the second Appeal. Mr. Ganguly draws my attention to the order of this Court dated 21st May, 1999 whereunder while admitting this second Appeal a Division Bench of this Court pinpointed the substantial question of law which needed to be dwelt upon and decided by this Court. Such formulation of substantial question of law includes, as per this order, the question whether on the facts and circumstances of this case and on the evidence adduced by the parties on the question of reasonable requirement the Courts below ought to have considered the case of partial eviction in terms of Section 13(4) of the WBPT Act, 1956 and on consideration of such a case whether the Courts below ought to have passed a decree for partial eviction of the tenant-appellant in respect of the suit premises. The next question that was formulated was whether in assessing the term 'family members' the Courts below ought to have found that a married daughter could not be considered to be a member of the family of the plaintiff-landlord and therefore her requirement could not be taken into consideration while coming to a finding regarding reasonable requirement of the plaintiff-appellant. According to Mr. Ganguly the first point formulated as mentioned above could not be gone into by this Court in view of the fact that no such point was taken in their memo of appeal and it was their duty to take leave of the Court before arguing on this point and it was for this Court also to record reasons for such formulation in view of the requirement of the proviso to Section 100 of the CP Code. Mr. Ganguly further contends that in his original written statement the defendant never took such a point and no Issue was framed by the trial Court, nor in the memo of appeal filed before the First Appellate Court they made any whisper about such a point and further in their memo of appeal before this Court also they have remained totally silent as to such a point and even after all this if the appellant seeks permission of the Court for inclusion of such a point, in that event the Court has to record reasons for granting them such an approval in view of the provisions of the proviso to Section 100. In support of this contention Mr. Ganguly refers to a decision , (Panchu Gopal Barua & Ors. v. Umesh Ch. Goswami & Ors.) wherein Their Lordships of the apex Court held that a bare look at Section 100 CPC would show that the jurisdiction of the High Court or entertain a Second Appeal after the coming into force of the 1976 amendment was confined only to such appearance as involved a substantial question of law, specifically set out in the memo of appeal and formulated by the High Court. Their Lordships were not unmindful of the fact that the proviso to the said section showed that nothing should be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if the Court is satisfied that the case involved such a question and this proviso pre-supposed that the Court would indicate in its order the substantial question of law which it proposed to decide, even if such substantial question of law was not earlier formulated by it and the existence of 'substantial question of law' was thus the sine qua non for the exercise of the jurisdiction under the amended provisions of Section 100 CPC. Their Lordships further held that an appellant, generally speaking, was not to be allowed to set up a new case in Second Appeal or raise a new issue (other than a jurisdictional one), not supported by the pleadings or evidence on the record and unless the appeal involved a substantial question of law. Second Appeal should not lie to the High Court under the amended provisions and the High Court was not justified in entertaining the second appeal on an altogether new point neither pleaded nor canvassed in the subordinate Courts and that too by overlooking the changes brought about in Section 100 CPC by the Amendment Act of 1976 without even indicating that a substantial question of law was required to be resolved in the second appeal. According to Mr. Ganguly, the circumstances obtaining in our present case are quite similar and the above decision will apply on all its fours, because, according to him, here also the question which the appellant has now agitated before this Court was not raised either before the trial Court or the first appellate Court and is for the first time argued before this second appellate Court and that too without making any whisper of it in the memo of appeal or without any substantial question of law having been formulated by this Court at the commencement of the hearing and therefore this Court has no scope to embark upon considering such a question while disposing of the second appeal.
10. Mr. Ganguly then cites another decision of the apex Court (Kshlttsh Ch. Purkait v. Santosh Ch. Purkatt & Ors. J. In this Judgment the apex Court came to the finding that in a second appeal the High Court should be satisfied that the case Involved a substantial question of law and not mere question of law and the reasons for permitting the plea to be raised should also be recorded and also it should put the opposite party on notice so as to give him a fair opportunity to meet the point, proposed to be formulated and where such a procedure has not been adopted by the High Court while allowing a new plea and deciding the case on that basis the High Court must be said to have abdicated the mandatory duty cast on it and exceeded its jurisdiction. According to Mr. Ganguly, in the present case no question of law. far less a substantial question of law, can be said to have been involved in the point which has been argued by Mr. Roy Chowdhury for the first time before this Court, namely, that the plaintiff-landlord has no reasonable requirement for a separate room for his maid servant and secondly, he has also no requirement for a store room. In support of this contention Mr. Ganguly also relies upon the judgment of a single Bench of this Court reported in 2000(11) CLJ 370 wherein under similar circumstances it was held by the High Court that where both the Courts below had come to a concurrent finding on the facts involved in the case and the first appellate Court being the final Court of finding of fact it was Impermissible "to re-appreciate the evidence and upset the decision of the first appellate Court on question of fact and it was settled principle of law that the jurisdiction of the High Court under Section 100 CPC, was limited only on the point of substantial question of law. The learned single Judge in coming to his finding in this case relied upon a decision of the apex Court (K.D. Kadam v. S.S. Gufor & Ors.}. In the Division Bench Judgment the apex Court fixed certain principles to be followed in order to define the scope of the High Court under Section 100 CPC (as amended in 1976) for the purpose of dealing with a second appeal as follows.
1. The High Court adhere to the procedure and conditions prescribed in the section and no Court has the power to add to or enlarge the conditions of appeal;
2. High Court must satisfy itself that a substantial question of law in's involved and must then formulated the question on which the appeal would then be heard;
3. The respondent has the right to argue that no substantial question of law is involved;
4. A second appeal cannot be decided on merely equitable grounds;
5. The Court must distinguish between a question of law and a substantial question of law;
6. A substantial question of law must be distinguished from a substantial question of fact;
7. Concurrent findings of facts, however erroneous, cannot be subjected to scrutiny under this section.
11. However, it has been also noted that proviso to Section 100 in the interest of justice permits the High Court to hear an appeal on a substantial point of law, even though not formulated by it Mr. Ganguly makes strenuous endeavour to bring home the point that here the question which has been raised at the time of argument by Mr. Roy Chowdhury before this Court is not a question of law, far less a question of substantial law and being a pure question of fact cannot be considered by this Court of second appeal and this judgment of the apex Court would only strengthen his contention.
12. In this second appeal, as I have already discussed above, two substantial questions of law have been formulated at the outset by a Division Bench of this Court on the eve, of commencement of hearing. Those two points are : first, whether in the facts and circumstances of this case on the evidence adduced by the parties on the question of reasonable requirement the Courts below ought to have considered the case of partial eviction in terms of Section 13(4) of the WEPT Act, 1956 and whether they ought to have passed a decree for partial eviction of the tenant-appellant in respect of the said premises; and secondly, whether in assessing the term 'family members' the Courts below should have held that a married daughter could not be considered to be a member of the family of the plaintiffs-landlord and therefore her requirement could not be taken into consideration while coming to a finding regarding reasonable requirement of the landlord. It is obvious that the first question, that is, whether a case of partial eviction in terms of Section 13(4) of P.T. Act is to be treated as one related to the second question formulated. In other words, if it is found that the second question is answered against the respondent-landlord, then only the first question will come Into prominence and Court will consider whether in view of the second substantial question of law having been answered in favour of the tenant a partial decree for eviction should be passed, but since Mr. Roy Chowdhury has conceded during his argument that the need for a bed room for the two married daughters of the landlord is a genuine one and the requirement on that score is reasonable as it has been substantiated from the evidence, it goes without saying that the question No. 2 therefore is clearly decided in favour of the landlord respondent and hence question of granting a partial decree of eviction cannot come up at all for consideration of the Court. Mr. Roy Chowdhury's contention is that the finding of both the Courts below that the landlord reasonably requires one room for the maid servant and also one store room are erroneous and this Court should set aside that part of the findings and in the result it would appear that the plaintiff respondent does not require the entire suit premises for his own occupation, and a part of it may be therefore, excluded and the appellant-tenant may be allowed to retain that part and thus a decree for partial eviction may be awarded in favour of the plaintiff.
13. But I am unable to accept this contention of Mr. Roy Chowdhury. The finding of the Courts below regarding the requirement of the plaintiff-landlord for a bed room for his maid-servant and a store room are out and out findings of fact and as per the well settled position of law this Court of second appeal has absolutely no scope or jurisdiction to enter into a scrutiny thereof. Neither there has been any formulation of substantial question of law on such a point, nor there has been any whisper in the memo of appeal regarding such a point, Mr. Roy Chowdhury's contention that the broad point had been included in the substantial question of law formulated by this Court, namely, whether a decree of partial eviction should be granted instead of decree of a full-fledged eviction and consideration of this broad point will cover such questions. But that is far from correct. Such a point, namely, whether a partial decree for eviction should be granted has to be dwelt upon in the context of the question whether the requirement of a bed room for the two married daughters by the landlord is a reasonable and genuine one and not in the context of the question whether the landlord reasonably requires a bed room for the maid-servant or a store room. Because, as I have already pointed out above, these are question of fact and have been dealt with and decided by both the Courts below and against such findings of facts the appellant cannot agitate before a Court of second appeal. It is the contention of Mr. Roy Chowdhury that the requirement of the plaintiff for a separate bed room for the maid-servant had its origin in the fact that wife of the plaintiff being then an ailing cancer patient required the constant service and nursing of such a maid servant at the time when the plaint was drafted and since during pendency of the suit before the trial Court that wife of the plaintiff expired, such a need for a separate room for the maid-servant ceased to exist and on that score the requirement of such a room by the landlord could no longer be held to be sustainable, but the trial Court fell into error by allowing the plaintiff to adduce evidence in that behalf and such evidence being inadmissible should be treated as non-est and on such a ground which is non-existent the plaintiff-landlord cannot be entitled to claim a separate room for the maid-servant. According to Mr. Roy Chowdhury the Courts having proceeded on the basis of such inadmissible evidence have acted erroneously and this part of their findings being a question of law may now be considered by this Court in the second appeal. In support of this contention Mr. Roy Chowdhury draws my attention to the amendment petition concerned dated 23rd February, 1994 filed by the plaintiff before the trial Court. By this petition plaintiff seeks amendment on different scores and at page 4 thereof the proposed amendment in respect of accommodation for maid-servant is found to occur. There the plaintiff has stated that he required one separate bed room for the whole-time maid-servant and the reason for employment of such a maid-servant however, has been discussed at pages 2 & 3 of the petition where he has also given the name of the maid-servant as Basanti Halder and it is stated by him that wife being a cancer patient and having undergone a surgical operation was in constant need of getting the service of a permanent maid-servant and for that purpose she urgently required a bed room. Mr. Roy Chowdhury contends that since the reason due to which such a maid-servant was appointed and consequently the need of a separate room to accommodate such a maid-servant arose was ceased to exist because of the death of that lady he cannot be entitled to get or claim one separate room on this score and the findings of both the Courts below not taking into consideration this aspect are erroneous and since the evidence adduced by the plaintiff in support of such a prayer was not in accordance with the pleadings but was something totally strange to the pleadings it ought to have been expunged by the Courts below and this point itself constitutes a question of law, viz., whether such evidence was inadmissible and ought to have been expunged and this question should be treated as a substantial question of law.
14. I am unable to subscribe to this view of Mr. Roy Chowdhury. First, Mr. Roy Chowdhury cannot raise such a question at this stage, the defendant have not objected to the taking of such evidence by the trial Court. Secondly, it is settled position that any and every question of law cannot be termed as substantial question of law which can alone be health with by a Court of second appeal. In this connection I am Inclined to rely upon a Division Bench Judgment of the apex Court (K.C. Purkait v. S.K. Purkait & Ors.). Their Lordships have held herein that it is not every question of law that could be permitted to be raised in second appeal and the parameters within which a new legal plea could be permitted to be raised are specifically stated in Sub-section (5) of Section 100 CPC. The Court should be satisfied while formulating the substantial question of law that the case Involves a substantial question of law and not a mere question of law and the reason for permitting the substantial question of law to be raised should be recorded by the Court and herein the appeal without formulating the substantial question of law involved in the appeal is illegal and is an abdication of the duty cast on the Court. In an earlier Judgment (Surendra v. State of W.B.) this Court held that re-appreciation of evidence in second appeal was not permissible unless the judgment under the appeal was perverse or the judgment was based upon evidence admittedly illegal or the finding was arrived at without evidence or there was misreading of evidence. In the present case the trial Court as well as the first appellate Court after elaborately discussing the evidence on the point arrived at the finding that the plaintiff reasonably required one room for the maid-servant as well as one store room for keeping the various household articles of his house. These are out and out and findings of facts on the basis of evidence and therefore I am of the opinion that on the face of such concurrent findings of facts by both the Courts below there is hardly any scope for me to reopen the case on such a point at the behest of the appellants.
15. Mr. Roy Chowdhury in support of his contention has cited a number of reported decisions which are as follows. In Judgment Today it has been observed by the apex Court that the High Court having not formulated any substantial question of law on a particular point at the beginning of the hearing has to do it and for that purpose the case was remanded to the High Court with a direction for framing a substantial question of law on the point in question. The facts of this case under refusal appear to be quite different from those of our present case. There the High Court remanded the matter to the trial Court for disposal in accordance with its directions without formulating any substantial question of law, although it was mandatory Under Section 100 CP Code to formulate such a question before disposing of the appeal and, for that matter, remanding the case for wholesome trial. Obviously such is not the situation in the Instant appeal. Here substantial questions were duty framed at the beginning of the appeal in accordance with the provisions of Section 100 CPC after hearing the petitioner's counsel, but at no point of time such a point was canvassed by him.
16. Mr. Roy Chowdhury has referred to some other decisions of the apex Court reported in (1) and (2) 1993 (suppl.) (1) SCC 439 in support of his contentions. It has been held therein that the Court must consider the question of partial eviction as per the mandate under the Premises Tenancy, Act and frame an issue whether the requirement of the landlord can be satisfied by means of a decree of partial eviction and if it is found that the trial Court did not frame any issue on this point then the High Court should remand the case to the trial Court for retrial after framing such an issue. As I have discussed above, these findings of the Hon'ble Supreme Court will be hardly attracted to the present case where the plaintiffs have been found to have proved their alleged requirement of the entire premises in suit for their own use and occupation by means of evidence adduced before the trial Court either standing the test of cross-examination well or remaining unchallenged. The question whether the plaintiff should be awarded a partial decree of eviction in respect of a part of the suit premises becomes immaterial in view of such evidence. Mr. Roy Chowdhury has also cited another decision to bring home his point that the evidence which is not in accordance with the pleadings cannot be considered by the Court. As to this, I have already expressed my views in the foregoing paragraphs to come to the finding as to why that fact will have no bearing upon the question of formulation of substantial question of law at the time of hearing of the second appeals.
17. Still another ruling has been cited by Mr. Roy Chowdhury in support of his contention. This is wherein their Lordships have held that Interference with a finding of fact in the second appeal is permissible when the finding has been arrived at by the appellate Court by placing reliance on inadmissible evidence and in such any situation a substantial question of law can arise. In this case under reference the facts were that the lower appellate Court relied on an admission of a third party treating it as binding on the defendant, but the admission was inadmissible as against the defendant and in such a situation the apex Court came to the above finding. In the present case in the memo of appeal there has been no iota of mention touching such an allegation. At the commencement of the hearing of the second appeal also this point was not canvassed from the side of the appellant. This Court did not get any scope for considering the question whether a substantial question of law can be formulated on this point as has been subsequently urged on behalf of the appellant. That apart, as I have already pointed out above, the particular piece of evidence in question was admitted by the trial Court without any objection being raised by the defendant-appellant. The appellant-defendant did not also move against that order of the trial Court allowing that part of the evidence to be admitted challenging the same as inadmissible evidence. Under such circumstances it cannot be said that the facts which prompted Their Lordships in the above mentioned judgment of the apex Court to arrive at the said conclusion are identical with those of our instant case. Therefore, the principle enunciated in the ruling discussed above cannot be made applicable to the facts of the present case.
18. In view of the above reasons, I am constrained to hold that the finding of the Courts below regarding the requirement of the respondent landlord of the separate bed room for his two married daughters having nor been challenged at the time of hearing there is no reason before me to hold that the plaintiff may be given a decree for partial eviction of the defendant-tenant The contention advanced by the appellant's learned counsel that the findings of the Courts below regarding the plaintiffs' requirement of a separate room for the maid-servant and of a store room are perverse and erroneous is, for the reasons discussed above, not acceptable. In the result, therefore, this second appeal being found to be without any merit is dismissed. The findings of the Courts below are hereby affirmed. Interim order of stay, if any, be vacated.
There will be no order as to costs.
Let the LCR be sent down to the Court below forthwith.
Later 19.10.2001 Learned Advocate for the appellant makes a verbal prayer for stay of operation of this judgment. The prayer is considered and rejected.