Amitava Rakshit vs Praranta Das

Bibek Chaudhuri, J

Law on the point is no longer res integra that an appeal filed under the provision of Order 43 Rule 1 (u) can only be heard on substantial questions of law in terms of Section 100 of the Code of Civil Procedure.

In J. Balaji Singh -Vs.- Diwakar Cole & Ors., reported in (2017) 14 SCC 207, the Hon'ble Supreme Court held that a remand order can only be passed by the Court of Appeal in three situations - (i) Under Order XLI Rule 23 of the Code of Civil Procedure, matter can be remanded where Trial Court disposed of the suit upon preliminary point; under such condition, Appellate Court can direct Trial Court to decide all issues based on evidence; (ii) under Order XLI Rule 23A, even though Trial Court decided all issues, but Appellate Court considers necessity of retrial of the matter after reversal of decree passed by the Trial Court; (iii) Under Order XLI Rule 25 Appellate Court can frame or try an issue if it finds that such issue is essential for right decision in suit and that issue was not framed by the Trial Court. In all the three situations, Appellate Court can frame issue and refer the same to Trial Court for taking evidence and record findings of such issues, and return the same to the Appellate Court for deciding the appeal. In such situation, Appellate Court retains appeal to itself. However, once Appellate Court decides to remand the matter, it is not required for Appellate Court to adjudicate on matters involved in dispute. Discussion and finding on issues involved in the matter after the Appellate Court coming to conclusion that the matter needs to be remanded, is uncalled for.

I am, however, constrained to record that the instant appeal was admitted by the Division Bench of this Court vide Order dated 12th May, 2017. However, at the time of admission of the appeal no substantial question of law was formulated. Therefore, taking aid of sub-Section (5) of Section 100 of the Code of Civil Procedure this Court formulates the following substantial questions of law and proceed with the hearing of the appeal: -

(i) Whether the learned Judge in First Appellate Court substantially erred in law in holding that there was no pleading on the question of alternative suitable accommodation made out by the plaintiff in the plaint and, therefore, no amount of evidence can be considered in the absence of such pleading?

(ii) Whether the impugned judgment passed by the learned Judge, First Appellate Court suffers from substantial error in law in view of the fact that the order of remand was perverse for non-consideration of material evidence overlooking the pleadings of the parties?

For proper adjudication of the instant appeal and better appreciation of the dispute between the parties, following facts are necessarily to be stated.

The appellant as plaintiff filed a suit for eviction, recovery of khas possession and other consequential reliefs in the 1st Court of the learned Civil Judge (Junior Division), Chandernagore against the defendant/respondent which was registered as Title Suit No. 26 of 2009. The appellant sought for eviction of the respondent on the grounds of default, reasonable requirement and causing damage as well as making substantial alteration of the suit premises by the defendant. The Trial Court decreed the suit.

An appeal came to be filed before the learned Additional District Judge at Chandernagore which was subsequently transferred to the Fast Track Court of the learned Additional District Judge of the same station.

By a Judgement dated 7th February, 2017 the learned Judge in First Appellate Court disposed of the said Title Appeal No. 86 of 2014 with the following order :-

"That the appeal is thus disposed of on contest. The Judgement and decree passed by learned Court below in T. S. No. 26 of 2009 is set aside and the suit is sent back on the remand to the Court below with a direction to allow the parties for their amending the pleading on the point relating the documents of parties to establish their case and to frame a fresh issue or issues on the point after opportunity being heard from both parties and opportunity the parties for their evidence, supported the pleadings and thereafter to dispose of the case in accordance with law in the light of observation made in the body of the Judgement".

The learned Court of Appeal observed that the learned Trial Court decreed the suit on the basis of the evidence, both oral and documentary adduced by the parties though there was no pleading with regard to availability of alternative accommodation of the plaintiff/appellant and whether such other accommodation is sufficient for the family of the plaintiff.

Mr. Rwitendra Banerjee, learned Advocate appearing for the plaintiff/appellant at the outset draws my attention to paragraph 4 of the plaint. Sum and substance of the case of the plaintiff/appellant on the ground of reasonable requirement as narrated in paragraph 4 is that the plaintiff retired from his service on superannuation on 1st May, 2008. On retirement, he had to vacate the official accommodation and took shelter with his wife and children in the house of his father-in-law situated at 26, College Street, Kolkata - 700 073. It is also pleaded by the plaintiff that apart from the suit premises he is one of the co-sharers of a house with landed property at Boraichanditala, Chandernagore. The said property is a joint family property. The plaintiff has a very limited share in the property. Present accommodation of the plaintiff at Boraichanditala, Chandernagore is not at all suitable for him and his family members. It is situated inside a small lane. On the contrary, the suit premises is situated at the heart of the city of chandernagore. All amenities of modern life are available in the vicinity of the suit premises. Therefore, the plaintiff required the suit premises reasonably for his own use and occupation and for the benefit of his family members.

Next, he takes me to paragraph 18 of the written statement where the case of the plaintiff on the ground of reasonable requirement was denied by the defendant and specific case was made out with regard to alleged accommodation of the plaintiff and his family members. Specific case of the defendant was that the plaintiff is the owner of a palatial building at Boraichanditala with all facilities and luxurious amenities. Many rooms are in his physical possession in the said house and the said rooms are lying vacant. The plaintiff actually resides in 27, College Street which his wife had inherited along with other co-sharers on the death of her father. Therefore, the plaintiff has more than sufficient accommodation and he does not require the suit premises at all.

Mr. Banerjee has referred to the relevant portions of the evidence of the witnesses on behalf of the plaintiff and the defendant adduced in the Trial Court. In his evidence, P.W. 1 stated that in Boraichanditala house he is in possession of only two rooms having no kitchen and bath and privy. The said house is situated beside a narrow lane on the bank of the river Ganges. Moreover, there is a burning ghat adjacent to the said house. The said accommodation is not at all suitable for the plaintiff and his family members because of emission of smoke due to burning of dead bodies. The said house is not habitable for congenial and healthy living of the plaintiff and his family members. Therefore, the suit premises is reasonably required by the plaintiff.

Mr. Banerjee frankly admits that the plaintiff did not elaborately state the reasons as to why Boraichanditala house is not a suitable accommodation of the plaintiff and his family members. However, it is pleaded that the said accommodation is not suitable for the plaintiff. In this regard, he refers to Order VI Rule 2(1) of the Code of Civil Procedure. Order VI Rule 2(1) states: -

"Every pleading shall contain, and contain only, a statement in a concise form of material facts on which the party pleading relies for his claim or defence, as the case may be, but not the witness by which they are to be proved".

It is contended by Mr. Banerjee that the plaintiff made a concise statement to the effect that the accommodation available to the plaintiff at Boraichanditala is not suitable. He led evidence during trial of the suit to establish why the said accommodation is not suitable. The plaintiff was cross-examined by the defendant regarding his accommodation at Boraichanditala. However, no cross-examination was made by his adversary with regard to his evidence that existence of a burning ghat adjacent to Boraichanditala house is causing health hazards to the plaintiff. The said house is not congenial for living as a result of emission of smoke from the said burning ghat.

It is contended by Mr. Banerjee referring to Section 6(1)(d) of the West Bengal Premises Tenancy Act, 1997 that under the New Act of 1997, the plaintiff is entitled to get a decree for eviction against the defendant on the ground of reasonable requirement if he is able to prove that he is not in possession of any suitable accommodation within the same Municipal Corporation or Municipality or any other area within 10 K.M. from such premises where the said Act extends. According to the learned Counsel for the appellant, the plaintiff/appellant substantially complied with the requirement of Order VI Rule 2 of the Code of Civil Procedure read with Section 6(1)(d) of the West Bengal Premises Tenancy Act when he averred that except the suit premises he has no other suitable accommodation. It is not necessary for the plaintiff to plead as to why apart from the suit premises, other accommodation was considered by the plaintiff to be not suitable. This is a matter of evidence in the absence of which the plaintiff's case would fail. As per the Rules of pleading evidence need not be stated in the pleading by the parties.

Mr. Banerjee next submits that plaintiff's evidence on the point that Boraichanditala house is not suitable was not challenged by the defendant in course of his evidence either by cross-examination of the witness on behalf of the plaintiff or by leading positive evidence by the defendant. It is a settled law that if any part of material evidence remains unchallenged during cross-examination of the witness by the adversary, such unchallenged and uncorroborated evidence can be treated as admitted by the adversary. In support of his contention, Mr. Banerjee relies upon a celebrated decision of the Division Bench of this Court in the case of A.E.G. Carapiet -Vs.- A.Y.Derderian, reported in A.I.R. 1961 Cal 359. According to Mr. Banerjee, new burden of proof is upon the plaintiff to establish that the existing accommodation besides the suit premises available to the plaintiff is not suitable. The plaintiff has discharged the burden by adducing positive evidence on this point. Thus, he discharged his burden to prove the ingredients of Section 6(1)(d) of the West Bengal Premises Tenancy Act. Placing reliance on a decision of the Supreme Court in the case of Narayan Bhagwantrao Gosavi Balajiwale -Vs.- Gopal Vinayak Gosavi & Ors., reported in A.I.R. 1960 SC 100, it is submitted by Mr. Banerjee that the expression "burden of proof" really means two different things. It means sometimes that a party is required to prove an allegation before Judgement can be given in its favour; it also means that on a contested issue one of the two contested parties has to introduce evidence. The burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail. Where, however, parties have joint issue and have led evidence, and the conflicting evidence can be waived to determine which way the issue can be decided, the abstract question of burden of proof becomes academic.

It is submitted by Mr. Banerjee that the learned Trial Judge framed Issue no. 5 as hereunder:-

Whether the plaintiff requires the suit premises for his own use and occupation as the plaintiff has got no other suitable or reasonable accommodation elsewhere?

According to Mr. Banerjee, in Issue No. 5 the learned Trial Judge included two essential points necessary to prove reasonable requirement, viz., (a) Whether the plaintiff reasonably require the suit premises in his own use and occupation and (b) whether the plaintiff has any other suitable and reasonable accommodation elsewhere.

Thus, it is concluded by Mr. Banerjee saying that the learned Judge in First Appellate Court overlooked the pleadings of the parties and proceeded on the assumption that the plaintiff failed to make out a case on the point of availability of suitable accommodation beside the suit premises. The said finding made by the learned Court of Appeal is absolutely perverse and borne out of record. Therefore, the impugned judgment may be set aside and the lower Appellate Court may be directed to pass judgment on merit.

Mr. Bose, learned counsel for the respondent, on the other hand submits that the plaintiff of course had disclosed about his alternative accommodation in their joint family property at Boraichanditala at Chandernagore but no case was made out by the plaintiff stating the reasons in a concise form as to why the said premises is not suitable for them. Since there was no pleading on such aspect, the defendant did not get any opportunity to traverse the case of the plaintiff. In absence of such pleading, no amount of evidence in this regard can be taken into consideration. In other words, evidence beyond pleading cannot be considered by the Court of law and the learned Lower Appellate Court rightly remanded the suit with a liberty to the plaintiff to amend the plaint and adduce evidence in support of his claim of non-suitability of his accommodation at Boraichanditala. Further, it is submitted by the learned counsel for the respondent that the impugned judgment does not suffer from any illegality.

Mr. Bose next draws my attention to Section 101 and 103 of the Indian Evidence Act and submits that initial burden is on the plaintiff to prove the ingredients of reasonable requirement as per Section 6 (1) (d) of West Bengal Premises Tenancy Act, 1997 because he desires the Court to give judgment directing the defendant to quit, vacate and deliver possession of the suit premises in favour of him. The plaintiff wanted to establish that his present accommodation at Boraichanditala is not suitable. The burden of proof is upon the plaintiff to establish the particular fact as to why the said accommodation is not suitable for him. As there is no pleading in support of his case, the Court of Appeal did not find any scope to consider the same. To substantiate his contention Mr. Bose refers to a decision of the Hon'ble Supreme Court in the case of Rajgopal (Dead) By LRS vs. Kishan Gopal and another reported in (2003) 10 Supreme Court Cases 653.

Paragraph 9 of the above mentioned decision is relevant for our purpose and quoted below:-

"In the absence of any pleading whatsoever on the question as to whether Goverdhan Das was given in adoption by his father Moti Lal or brother Kishan Lal, there is no lis between the parties on this question, as such courts could not have gone into the same even if some evidence was adduced and the lower appellate court rightly decided this question against the plaintiffs. Reference in this connection may be made to a decision of the Privy Council in the case of Siddik Mahomed Shah vs. Mt. Saran in which it was held (AIR 1930 PC 57) that "where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward." The said case has been referred to by this Court with approval in the case of Bhagat Singh v. Jaswant Singh (AIR 1966 SC 1861). In that case, some evidence was led but the High Court refused to got into the question observing that where no plea was taken, it cannot be said that there was any lis between the parties thereon. This Court upheld the decision of the High Court observing that the same was supported by a decision of the Judicial Committee in the case of Siddik Mahomed Shah."

On the same point Mr. Bose refers to another decision of the Hon'ble Supreme Court in the case of Bhagat Singh -Vs.-. Jaswant Singh reported in AIR 1966 SC 1861.

Thus, it is submitted by Mr. Bose that there was no pleading by the plaintiff/appellant to the fact that Boraichanditala house is not suitable accommodation for him due to emission of smoke to the said house from an adjacent burning ghat causing serious health hazard for him. In the absence of said pleading, no amount of evidence can be considered.

The plaintiff of the original suit has filed the instant appeal under Order XLIII Rule 1(u) of the Code of Civil Procedure. On perusal of the impugned judgment it is found that the lower First Appellate Court passed the order impugned under the provision of Order XLI Rule 23 (a) of the Code of Civil Procedure. The Lower Appellate Court considered it necessary that the party should be given an opportunity to amend the plaint, adduce evidence in the trial Court on the basis of their amended pleadings and the trial Court would dispose of the suit afresh on the basis of the amended pleadings and evidence that may be adduced by the parties. In the instant appeal the scope of this Court is limited to consider as to whether the order of remand was just, proper, legal and valid.

At the outset, I like to record that the learned Judge in First Appellate Court failed to consider that the plaintiff/appellant disclosed his alternative accommodation at Boraichanditala, Chandernagore and adduced evidence in this regard. The lower Court record, on the contrary, shows that there was obviously pleading disclosing availability of alternative accommodation by the plaintiff at Boraichanditala. However, the plaintiff pleaded in the plaint that it is not suitable. I am in agreement with the learned counsel for the respondent that the plaintiff did not disclose as to why the said accommodation was not suitable for the plaintiff. On careful perusal of the plaint, it is, of course, found that the plaintiff has stated that there is kitchen and bath and privy under the allotment of the plaintiff at Boraichanditala house. Extent of the accommodation in the said house and non-availability of exclusive kitchen, bath and privy were not denied by the respondent specifically either in the pleading or in evidence.

It is an established principle of law that while deciding a suit or appeal for eviction of a tenant on the ground of bona fide requirement but the Court is required to look into the issue on landlord's perspective. In other words, reasonable requirement is to be considered sitting on the 'arm chair' of the landlord. In the instant case the landlord /plaintiff /appellant disclosed that Boraichanditala house is not suitable for him as well as his family members. Of course, besides non-availability of separate kitchen and exclusive bath and privy, the appellant did not plead that the said house is not suitable for congenial living due to emission of smoke from the adjacent burning ghat. I am not also unmindful to note that pleadings being foundation of litigation must contain only relevant material by excluding irrelevant and unnecessary information. In the instant case relevant material is that Boraichanditala house is not considered by the plaintiff as suitable. All other facts are not material facts and the Court is under obligation to consider factual evidence adduced by the parties in order to prove the material fact i.e. suitability of alternative accommodation. There is no allegation that the defendant /respondent was taken to surprise regarding emission of smoke to his house at Boraichanditala from the burning ghat. On the contrary, the defendant in his cross-examination admitted that there is a burning ghat situated adjacent to the said house and there are both electric and wooden furnace for cremation of dead body in the said burning ghat. The learned counsel for the respondent also submits that the plaintiff did not get his accommodation at Boraichanditala inspected by local Inspection Commissioner only to suppress his accommodation. I am not in a position to consider such submission made by the learned counsel for the respondent because of the fact that the instant appeal cannot be decided on merit. The scope of the appeal is very limited to decide as to whether the order of remand passed by the learned trial Court is justified or not.

In view of discussion made hereinabove, I am of the view that the evidence on record is sufficient to dispose of the appeal on merit. Learned First Appellate Court could have disposed of the appeal on merit without remanding the suit for fresh trial. No fruitful purpose will be served if the impugned judgment is sustained. For the reasons stated above, the impugned judgment and order passed in Title Appeal No.86 of 2014 by learned Additional District and Sessions Judge, Fast Track Court, Chandernagore cannot be sustained. Accordingly, the instant First Miscellaneous Appeal is allowed on contest, however, without cost. The judgement and order of remand passed in Title Appeal No.86 of 2014 by learned Additional District and Sessions Judge, Fast Track Court, Chandernagore is set aside. The learned Judge in First Appellate Court is directed to dispose of the appeal on merit without being influenced in any way by any observation made in the instant judgment touching upon the merit of the appeal.

The learned Trial Judge is further directed to dispose of the appeal on merit positively within three months from the date of receipt of the lower Court record.

The department is directed to send back lower Court records to the Lower Appellate Courts immediately for compliance.

Urgent photostat certified copy of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.