Joytosh Banerjee, J. - (1.) This appeal from the appellate decree is directed against the judgment of Sri S.K. Nandi, 1st Additional District Judge, Howrah dated November 27, 1996 passed in T.A. No. 63/95 whereby he dismissed the appeal and confirmed the judgment dated January 31, 1995 passed by Munsif, 2nd Court, Howrah in T.S. No. 5/88 of his court excepting the decision relating to issue No. 4 touching the question whether the Defendant/Appellant was a defaulter in payment of rent. The learned trial court in its judgment disposed of the issue by giving a decision in the line and order dated July 1.6, 1992 passed by the trial court in connection with a proceeding under Sec. 17(2) and (2A) of the West Bengal Premises Tenancy Act by holding that Defendant was a defaulter in payment of rent for January, 1988 and the Defendant was entitled to get the benefit under Sec. 17(4) of the West Bengal Premises Tenancy Act since it was a case of first default. That particular finding was set aside by the learned appellate court answered the issue in connection with alleged default in negative.
(2.) In short, the facts leading to the filing of the instant appeal are as follows: The wife and children of Sk. Mohammad Hossain filed the suit against the Defendant/tenant praying for his eviction from the tenanted portion comprising three rooms in premises No. 24/1, Danesh Molla Lane alleging, inter alia, that the Defendant/Appellant was a tenant under them in respect of the suit premises at a monthly rental of Rs. 150.00 payable according to English calendar month and the Defendant defaulted in payment of rent since January, 1974. It was also alleged that the Defendant caused damage to the tenanted premises by certain acts contrary to the provisions of Clauses (m), (o) and (p) of Sec. 108 of the Transfer of Property Act and contrary to the purpose for which premises was let out the Defendant was running a business in such premises. It was also alleged that the Plaintiffs required the suit premises for their own use and occupation and also for addition and alteration as the same was old dilapidated condition. For all these reasons, the Plaintiffs/Respondents issued notice calling upon the Defendant/Appellant to vacate the suit premises on the expiry of July 1:987. Inspite of receipt of such notice, the Defendant/Appellant failed to vacate the suit premises on the expiry of such period. The Defendant/Respondent contested the suit by filing a written statement denying that he was a defaulter since January, 1974 and also denied that he committed any act contrary to the previsions of Clauses (m), (o) and (p) of Sec. 108 of the Transfer of Property Act. It was alleged by the Defendant/ Appellant that the suit premises was taken on rent both for residential as well as for business purpose. He also denied that the Plaintiffs had any requirement for the suit premises and alleged that the accommodation available to the members of the Plaintiffs family was sufficient for them. The learned trial court decreed the suit holding, inter alia, that Defendant was guilty of using part of the suit premises for business purpose without the consent of the landlord and also that the Plaintiffs required the suit premises for their own use and occupation. The learned trial court at the same time held that the Plaintiff failed to prove the case for requirement of the suit premises for building and rebuilding. In appeal besides setting aside the finding on the issue of default as noted above, the learned appellate court below held that the Plaintiffs were the owners of the suit premises and they successfully proved the case of reasonable requirement for the suit premises, that while D.W. -1 in his evidence clearly admitted that he had been running a business in a portion of the suit premises since 1967, from the attending circumstances there was nothing on record to hold that the suit premises was let out for business purpose and also for residential purpose. With this findings, the learned appellate court below dismissed the appeal.
(3.) At the time of hearing of the appeal, the following question has been formulated as the substantial questions of law involved in the present appeal: Whether in the instant appeal, the subsequent events, as pointed out through the Appellants application, overshadows the genuineness of the need of the Respondent in the facts and circumstances brought forward by such application.' The aforesaid point along with an application for appropriate note of subsequent events during the pendency of the appeal before this Court have been taken up for hearing and I propose to dispose of the application along with the aforesaid appeal.;