Raghunath Bhattacharya, J. - (1.) THE hearing stems from an application filed by the petitioner for revision of the order No. 77 and 78 dated 19.11.2010 passed by the learned Judge, Small Causes Court, 2nd Court, Calcutta in Ejectment Suit No. 41 of 2006-E. By way of setting aside the same inter alia on the ground that the learned Court below erred in coming to a definite conclusion in respect of the aforesaid orders and learned Court below has failed to appreciate the true picture of the suit property and was unjustified in rejecting the defendants prayer under Order 39 Rule 7 and allowing the plaintiffs prayer for recalling D.W. 1 for the purpose mentioned in the respective order.
(2.) THE present opposite party being the landlord brought a suit for eviction against the petitioner/defendant/tenant. THE parties contested the suit by filing their respective pleadings. THE petitioner adduce himself for the aforesaid suit as D.W. 1. After conclusion of evidence on 13.08.2010 the defendant filed an application under Order 39 Rule 7 read with Section 151 C.P.C. contending that plaintiff/opposite party surreptitiously and with some ulterior motive did not show one room under their occupation at the time of local inspection and as a result in order to bring the real picture in issue advocate commissioner is necessary. THE plaintiff/opposite party also filed an application for recalling D.W. 1 i.e. defendant/petitioner for the purpose of cross-examining him in connection with electric meter being Consumer NO. 25047054027 situated at 57, Ripon Street. After hearing both sides learned Court below rejected the defendants prayer for local inspection but allow the plaintiffs prayer for recalling the petitioner for cross-examination in connection with the said electric meter. Being aggrieved by and dissatisfied with the said order defendant as a petitioner prefer this instant revisional application challenging the legality validity of the order Nos. 77 and 78 dated 19.11.2010. Admittedly the defendant being the landlord filed a suit for eviction and other ancillary relief before the Court below. The petitioner as defendant entered into appears filed the written statement and contested the suit. During the beginning of the suit defendant filed an application under Order 39 Rule 7 that was allowed by the Court below and an officer of the Court inspected the locale and submitted his report. Thereafter issue was framed and observing all formalities evidence in respect of both sides were closed. After the closure of the evidence defendant filed an application under Order 39 Rule 7 praying for holding a fresh local inspection in respect of the suit premises on the ground that the plaintiff with some ulterior motive did not show a room which was in his possession to the officer of the Court as a result of a fresh commission is necessary. Which was heard by the Court below in presence of both sides and after hearing both sides learned Court below rejected the application on the ground elaborately mentioned in the order. On the self-same date i.e. 19.11.2010 the plaintiff filed an application praying for recalling the defendant petition was examined as D.W. 1 in order to prove the electric bill in respect of the consumer number as mentioned above which was allowed by the Court below. Admittedly this is a suit for eviction. It is the solemn duty of the plaintiff to prove its own case in spite of defect and loophole of the defendant. If the plaintiff has failed to prove his case then in spite of several lacuna on the part of the defendant the plaintiff will not get the desire decree. Now in a suit for ejectment under West Bengal Premises Tenancy Act the plaintiff as landlord is entitled to get a decree for eviction on same ground namely reasonable requirement, default, subletting etc. In the instant case it is the duty of the plaintiff/opposite party to prove that he has no other reasonable suitable accommodation elsewhere save and except the suit property. Suppose in an ejectment suit plaintiff has a single house whereas the defendant is a owner of several houses within a municipal area then also plaintiff will only get a decree if he has been able to prove that suit property was required for his own use and occupation and he has no other reasonable, suitable accommodation elsewhere. In this case plaintiff filed an application in order to prove the electric meter standing in the name of the defendant at Ripon Street. Even if this Court allow the said application then also the plaintiff will not get any decree unless he prove his case to the point. In my opinion the order passed by the Court below so far the recalling of D.W. 1, in order to prove the electric meter is useless and it will be time consuming matter and the same will neither help the Court nor the either parties. So, this part of the order i.e. order No. 78 is liable to be rejected.
(3.) NOW the plaintiff as the defendant filed an application for holding a local inspection in the suit premises. During the pendency of the suit a local inspection was held and it was held in presence of both side. It was submitted by the learned Counsel Mr. Saha that learned Lawyer of the defendant was present at the time of holding inspection but defendant has forgot to show the room which he claims that same is under the occupation of the plaintiff. Practically it is the lacuna on the part of the defendant and by way of second application under Order 39 Rule 7 defendant wanted to fill up the lacuna. Admittedly a report under Order 39 rule 7 is considered as a secondary evidence unless the some cogent evidence is produced then only the report of the commissioner will help the case of the parties in any way and as such I do not find any merit by allowing the instant order. In view of aforesaid discussion this Court has no other option but to confirm the order No. 77 dated 19.11.2010 i.e. the Civil Revision under Order 39 Rule 7 of C.P.C. dated 13.08.2010 which was rejected by the Court below and the said order of rejection is hereby confirmed and Civil Revision in respect of that order is hereby dismissed. So far the order No. 78 is concerned. In view of aforesaid discussion the order No. 78 dated 19.11.2010 filed by the plaintiff/opposite party which was allowed by the Court below suffers material irregularities and thus the order liable to be quashed. So far the civil revision No. 78 dated 19.11.2010 is concerned is hereby allowed and the order passed by the court below is hereby set aside.;