Tarun Kumar Gupta, J. - (1.) THIS Second Appeal is directed against judgment and decree dated 25.06.2001 passed by learned Civil Judge (Senior Division), Sealdah in Title Appeal No.97 of 1997 affirming the judgment and decree dated 30.09.1997 passed by learned Civil Judge (Junior Division), 2nd Court, Sealdah in Title Suit No.643 of 1993.
(2.) THE respondent/plaintiff filed said suit for ejectment against appellant/plaintiff/tenant on the ground of default in payment of rent, reasonable requirement of the suit premises, committing nuisance and annoyance and causing damage by defendant/tenant. It is specific case of the plaintiff /landlord that her family consisted of herself, her husband and four sons. Out of which three are unemployed and that suit premises was required for starting a business by plaintiff's unemployed son. THE plaintiff is in possession of three rooms in the suit house though plaintiff reasonably requires two more bedrooms, one kitchen and one thakur ghar and one room for starting business by her unemployed son. As she has no other reasonably suitable accommodation elsewhere she terminated tenancy of the defendant by sending a notice to quit which was duly received by defendant. THE appellant/defendant contested said suit by filing written statement denying material allegations of the plaint and contending inter alia that plaintiff accepted rent from him upto July, 1989 without granting any receipt and thereafter she demanded for hike of rent and as defendant refused, this false case was filed. Plaintiff as well as her eldest two sons are of unsound mind. Said eldest two sons left plaintiff's house long ago. Plaintiff is in possession of four rooms, a kitchen and one thakur gar. Plaintiff's other sons being illiterate are not capable of starting any business. THE suit was liable to be dismissed. On the basis of the pleadings of the parties learned Trial Court framed as many as eight issues. After taking evidence from both sides including the evidence of learned Advocate Commissioner learned Trial Court decreed the suit only on the ground of reasonable requirement. Learned Trial Court allowed defendant/tenant to avail the protection against eviction for default under Section 17(4) of the West Bengal Premises Tenancy Act, 1956. According to him other alleged grounds of eviction as made out in the plaint were not established. Defendant/tenant preferred an appeal being Title Appeal No.97 of 1997 against said judgment and decree. In the Lower Appellate Court appellant /tenant filed an application under Order 39 Rule 7 read with Section 151 Code of Civil Procedure alleging that at the time of holding of local inspection during pendency of the suit in Trial Court the construction of rooms in the first floor were incomplete as noted by learned Commissioner, but after passing of decree those first floor incomplete rooms have since been completed and are being used by the plaintiff /landlady and her family members and accordingly a Commissioner is required to be appointed to take note of the conditions as well as measurements of those first floor rooms. Learned Lower Appellate Court proposed to take up said petition along with hearing of the appeal vide Order dated 1st of September, 1998. Ultimately, learned Lower Appellate Court rejected the appeal but did not pass any specific order relating to said application filed by appellant/tenant under Order 39 Rule 7 of Code of Civil Procedure in his judgment dated 25.06.2001. At the time of admission of the second appeal, the following substantial questions of law were formulated for adjudication in this second appeal. 'Whether the learned Judge of the Court of Appeal below has been wrong in not disposing of the appellant's application under order 39 Rule 7 of the C. P. C. filed in view of the subsequent events, although the same Court by an earlier order dated 1.9.98 held that the points raised in the said application demand enquiry and the same should be disposed of along with the hearing of the appeal for the sake of fair adjudication.' During pendency of the second appeal respondent /landlady filed an application being C.A.N. No.2844 of 2010 praying for recording and / or taking notes of subsequent events for increasement of the family members of the plaintiff for fair disposal and adjudication of this appeal. In said application plaintiff has averred that out of four sons three sons were given married and that out of said wedlock two grand sons and two grand daughters of plaintiff were born and that the requirement of the plaintiff has since been increased manifold.
(3.) APPELLANT /defendant/tenant has filed an affidavit in opposition alleging that the application for taking note of increasement of family members of the landlady is not justifiable in second appeal as per law. It was further averred therein that the claim of landlady about shortage of accommodation was not entertainable as appellant/tenant's application under order 39 Rule 7 of Code of Civil Procedure for local inspection was not disposed of by learned Lower Appellate Court. There is no denial that respondent/plaintiff was landlady and appellant/defendant was tenant under her and that his tenancy was duly terminated by a notice to quit. It is also not disputed that appellant tenant got protection against eviction for default under Section 17(4) of the Act and that the suit of ejectment was decreed only on the ground of reasonable requirement. Mr. D. N. Batabyal, learned advocate for the appellant/tenant, has submitted that ground of reasonable requirement of the suit premises should continue to exist till final determination of the case and that Appellate Court must take cognizance of subsequent events showing that landlord's requirements have been met and must mould the Trial Court's decree accordingly. In this connection he has referred a case law reported in (1981) 3 SCC page 103 (Hasmat Rai and another v. Raghunath Prasad). In this connection he has further submitted that the present appellant/tenant filed a petition under Order 39 Rule 7 of Code of Civil Procedure in Lower Appellate Court praying for appointment of an Advocate Commissioner to note subsequent events namely completion of construction of first floor rooms in the suit house which were found to be under construction at the time of local inspection held during pendency of the suit in the Trial Court, and using of the same by the family members of the landlady and thereby satisfying their requirement, if any. According to him, learned Lower Appellate Court though kept said petition pending for disposal along with first appeal but did not pass any specific order relating to said application though learned Court mentioned about said application in his judgment. Accordingly, he prays for remanding back the case to the Lower Appellate Court for allowing said pending petition under Order 39 Rule 7 of Code of Civil Procedure and for writing fresh judgment regarding alleged further requirement, if any, of the plaintiff after consideration of report of the Advocate Commissioner.;