Narayan Chandra Dey vs Dipali Rana & Ors.

Jyotirmay Bhattacharya, C.J.

The appellant/defendant filed the instant application praying for review of the judgement and/or order passed by this court on 22nd November 2016.

The Second Appeal, which was filed by the defendant/appellant, was dismissed by this court by the order dated 22nd November 2016, which is under

review. Let us now consider the merit of the review application in the facts of the present case. The eviction suit filed by the plaintiffs/respondents

against the defendant/appellant was decreed by the learned trial court on the ground of reasonable requirement of the plaintiffs and the members of

their families. The said decree of the learned trial court was affirmed in appeal by the learned First Appellate Court. The appeal, which was filed by

the defendant/appellant, was thus dismissed by the learned First Appellate Court.

Challenging the said judgement and decree of the learned First Appellate Court, the instant Second Appeal was filed. It was argued by the learned

advocate appearing for the appellant in this appeal that the plaintiff nos. 2 and 3 are not the owners of the property. It was also argued that there was

no relationship of landlord and tenant between the plaintiff nos. 2 and 3 and the defendant/appellant. The maintainability of the suit was thus

challenged by the defendant/appellant as two of the plaintiffs were not the owners of the property and there was no relationship of landlord and tenant

between those plaintiffs and the defendant/appellant. It was argued that since the suit is based on contract, the suit is not maintainable, as some parties

who were foreigners to the contract were joined as plaintiffs in the said suit. As such, argument of the defendant/appellant was not accepted by this

court and the court also affirmed the findings of the courts below that the suit is not defective due to joinder of the plaintiff nos. 2 and 3 in the suit

inasmuch as the plaintiff nos. 2 and 3 are the prospective owners of the suit property in view of the provision in the Trust Deed.

Mr. Chakraborty, learned advocate appearing for the defendant/appellant also contended that the learned First Appellate Court was not justified in not

considering the report submitted by the Advocate Commissioner in the appeal. It was brought to our notice that an application under Order 41 Rule 27

of the Code of Civil Procedure was submitted by the defendant/appellant before the learned First Appellate Court to bring on record additional

evidence to the extent that during the pendency of the said appeal, the landlord had constructed an additional room and thus his requirement had been

satisfied by the additional accommodation during the pendency of the appeal.

The defendant/appellant’s prayer for allowing him to lead additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was allowed

by the learned First Appellate Court. Inspection was held by the learned Advocate Commissioner and a report was submitted. Mr. Chakraborty,

however, submitted before the court that the Advocate Commissioner was not examined in the appeal and the report was not exhibited. He further

submitted that even no step was taken by his client to admit the said report of the Commissioner into evidence.

Considering such submissions of Mr. Chakraborty, it was held by the court that since the report was not admitted into evidence, the learned First

Appellate Court did not commit any illegality by not considering the said report while disposing of the appeal. The court thus held that the Second

Appeal had no merit and, accordingly, dismissed the said appeal. Subsequently, the instant application for review was taken out by the

defendant/appellant. It is stated herein that the report was accepted by the court on consent of parties and as such the Advocate Commissioner was

not examined by the court.

Mr. Chakraborty, thus submits that since the court accepted the report with the consent of the parties, the court ought to have considered the said

report while dealing with the First Appeal, even though the report was not exhibited. In fact review of the earlier judgement was sought for on this

ground alone. We agree with Mr. Chakraborty that since the report was admitted with the consent of parties, non-examination of the learned

Advocate Commissioner would not cause any fatal as the court had a duty to consider the effect of the said report, once it is accepted, specially by

consent of parties.

Copy of the Commissioner’s report has also been annexed to the application for review. We have considered the said report. It is reported therein

that one additional room was constructed by the plaintiffs/respondents. The said room was incomplete; even the floor and window frames were not

fixed. There was no roof on the construction. Roof was covered by tarpaulin. In our view, such room is not habitable. As such, even if we consider

that an additional construction was made by the plaintiffs/respondents during the pendency of the first appeal, the requirement of the plaintiffs could

not have been held to be satisfied by such additional construction, which was incomplete and not habitable.

Be that as it may, the defendant did not file any additional written statement to bring on record the fact that the landlord had made some additional

construction over the suit premises and the landlord’s requirement was satisfied by such additional construction. He has also not taken any steps

for amendment of the written statement to bring the said fact on record. It is well settled that a party cannot be allowed to lead any evidence on any

fact, which is not pleaded by him, or in other words no amount of evidence is to be looked into by the court beyond the pleadings of the parties. In this

regard, reliance may be made to the decision of the Hon’ble Supreme Court of India, reported in AIR 1976 SC 163 in the case of Afsar Shaikh &

Anr. -vs- Soleman Bibi & Ors. and the decision of the Privy Council reported in AIR 1930, Privy Council P. 57 (1) in the case of Siddik Mahomed

Shah â€"vs- Mt. Saran & Ors.

Since the factum of additional construction by the plaintiffs/respondents during the pendency of the appeal was not brought on record by the

defendant/appellant in his pleadings either by way of amendment of his written statement or by way of filing an additional written statement in the suit,

we hold that the evidence which the defendant/appellant was seeking to lead by way of additional evidence by filing an application under Order 41

Rule 27 of the Code of Civil Procedure, could not have been considered by the first appellate court as the foundation of such pleading was absent in

the written statement. We, thus hold that the conclusion, which was arrived by the learned First Appellate Court, cannot be held to be vitiated by non-

consideration of the Commission report.

We thus do not find any merit in the review application. The application for review stands rejected. In view of rejection of the review application, the

application for stay being CAN No. 12295 of 2016 also stands rejected. Urgent Photostat certified copy of this order, if applied for, be supplied to the

Learned advocates for the parties immediately.