Tarun Kumar Gupta, J. - (1.) THIS Second Appeal is directed against judgment and decree dated 30th March, 2002 passed by learned District Judge, Howrah in Title Appeal No.246 of 1999 reversing the judgment and decree of eviction dated 20th September, 1999 passed by learned Civil Judge (Junior Division), 7th Court, Howrah in Title Suit No.67 of 1981. Appellant/plaintiffs case after several amendments of the plaint is that they were owner of the suit house through a registered deed of conveyance dated 11th February, 1976 and that defendant who was a tenant under the previous owner namely Keshab Chandra Roy Chowdhury and his wife Smt. Naresh Prova Devi in respect of suit premises at a rental of Rs.85/- per month, continued to be a tenant under the plaintiffs. The defendant defaulted in payment of rent and was guilty of causing waste and damage as well as of causing violation of the provisions of (M),(O),(P) of Section 108 of Transfer of Property Act. It was further case that the suit property was reasonably required by the plaintiffs for starting Homeopathy practice by plaintiff No.1s son who passed Homeopathy. It was further case that in spite of termination of tenancy of the defendant/tenant by sending a notice he did not vacate the suit premises.
(2.) THE respondent /defendant contested the suit by filing written statement followed by several additional written statement. THE respondent/defendant denied material allegations of the plaint and contended inter alia that he was a Thika tenant under Keshab Chandra Roy Chowdhury and made constructions on suit land and that plaintiffs illegally dispossessed defendant from a portion of the suit property on 25th of August, 1987. It was further case that suit property would be acquired by Howrah Improvement Trust and hence plaintiff could not get any decree of ejectment. After contested hearing learned Trial Court opined that respondent/defendant was a tenant under the plaintiffs who were owners of the suit property by purchase and that the tenancy was terminated through a notice and that the plaintiffs were entitled to get a decree for ejectment on the ground of default. However, learned Trial Court did not pass any ejectment decree on any other ground including the ground of requiring the suit property by the plaintiffs for use of their son as a Homeopath doctor. Respondent/tenant filed an appeal being Title Appeal No.246 of 1999 in the Court of learned District Judge, Howrah against said judgment and decree of ejectment on the ground of default. The appellant/plaintiffs also filed a cross appeal as no decree was passed on the ground of reasonable requirement. Learned Appellate Court found that respondent /tenant was entitled to get protection against eviction on the ground of default under Section 17(4) of the West Bengal Premises Tenancy Act, 1956 and accordingly, he set aside the impugned judgment and decree of ejectment on the ground of default. Learned First Appellate Court, however, concurred with learned Trial Court on other issues including the issue as to the reasonable requirement. As a result, the cross appeal was dismissed. During pendency of this appeal an application being CAN No.4088 of 2004 under Order 41 Rule 27 of the Code of Civil Procedure was filed by the appellant plaintiffs to adduce further evidence in support of their claim that suit premises was reasonably required for use of plaintiff No.1s son who was practising Homeopathy. Both the appeal and the application were taken up for hearing together.
(3.) DURING hearing Mr. Asish Kumar Bagchi, learned advocate for the appellants, submits that learned Trial Court rejected the plaintiffs claim of reasonable requirement of the suit premises for being used by plaintiff No.1s son who passed Homeopathy, as a chamber on the ground that no document was filed to show that the son of the plaintiff has started his medical profession. According to Mr. Bagchi, the appellants may be permitted to prove the enclosed documents namely certificate of enlistment issued by Howrah Municipal Corporation from year to year in favour of plaintiff No.1s son as Homeopath consultant, challans showing payment of professional tax by plaintiff No.1s son, income tax returns filed by the plaintiff No.1s son as a Homeopath practitioner. According to Mr. Bagchi the reasonable requirement is a continuing cause of action and that if appellants are not permitted to adduce further evidence in terms of the instant application resulting dismissal of the appeal then appellant /plaintiffs have to file a suit for ejectment on the same ground de novo causing unnecessary harassment to the parties. Accordingly, Mr. Bagchi has prayed for allowing this application and for remand of the suit to the Lower Appellate Court for permitting the parties to adduce further evidence on the point of not only proving these documents but also on the issue of reasonable requirement of the suit premises by the appellant/plaintiffs. Mr. Arunava Jana, learned advocate for the respondent, has strongly opposed this application by submitting that a party cannot be permitted to fill up his lacuna by permitting him to adduce further evidence at the time of hearing of the Second Appeal. He has further submitted that the instant application under Order 41 Rule 27 of the Code of Civil Procedure was not maintainable as those documents were well within the custody of the appellants during pendency of the trial or at least during pendency of the first appeal.;