Tarun Kumar Gupta - (1.) THIS second appeal is directed against the judgment and decree dated 30th June, 2007 passed by the learned Additional District Judge, 3rd Court, Alipore in Title Appeal No.107 of 2006, affirming the judgment and decree of eviction dated 28th February, 2006, passed by the learned Civil Judge (Junior Division) 5th Court, Alipore in Title Suit No.85 of 2004.
(2.) THE respondent / plaintiff filed the said suit for ejectment, alleging that the defendant being a tenant under the plaintiff in respect of the ground floor suit flat with a garage and a mezzanine floor room as described in the schedule of the plaint was guilty of causing damages to the suit property. It is further case that the plaintiff being a chartered accountant has started a chartered accountant firm under the name and style of "Prabir Ghosh & Co., chartered accountants" with effect from 1994 after retiring from service. THE plaintiff along with his family members has also a business under the name and style of "M/s. Southend Investment & Finance Company Private Limited". Though plaintiff is in occupation of second floor and third floor of the suit building but for smooth and effective running of business of said chartered accountant firm, plaintiff reasonably requires the suit premises which was situated in the ground floor. THE first floor is also tenanted. As plaintiff has no other reasonably suitable accommodation elsewhere, plaintiff has filed this suit for ejectment after serving necessary notice. The defendant contested the suit by filing a written statement denying material allegations of the plaint and contending, inter alia, that present accommodation of the plaintiff was more than sufficient for running his business and that plaintiff does not reasonably require the suit premises for the alleged purpose of business. Issues were framed and both sides adduced evidence both oral and documentary. After contested hearing, learned Trial Court granted a decree of ejectment only on the ground of reasonable requirement of the entire suit premises by the plaintiff for running his chartered accountant firm. Learned Lower Appellate Court also concurred to the aforesaid findings of learned Trial Court and accordingly, dismissed the appeal. At the instance of the defendant-tenant this appeal has been admitted on the following substantial questions of law:- (I) Whether the learned Courts below committed substantial error of law in passing a decree for eviction on the ground of reasonable requirement for the purpose of carrying on profession of Chartered Accountant of the respondent simply on the ground that such office must be situated on the ground floor of the property; (II) Whether the learned Court of appeal below committed substantial error of law in overlooking the fact that a Chartered Accountancy Firm can easily continue in a second floor of a building which consists of four rooms, bath, privy etc., when apart form those four rooms the plaintiff is in occupation of further four rooms and his family consists of himself, his wife and one unmarried daughter, who is staying outside Calcutta.
(3.) DURING hearing of the second appeal, the appellant / defendant filed an application being CAN No.3512 of 2011, praying for reception of additional evidence under Order XLI Rule 27 of the Code of Civil Procedure. In the said application, the defendant has tried to bring on record the certified copy of deed of conveyance being Annexure ? A of said application as an additional evidence to show that during pendency of this second appeal the plaintiff-landlord sold out entire first floor to the tenant in occupation of the same. In this ejectment suit the main point in issue was whether the plaintiff- owner-landlord reasonably required the ground floor suit premises for running his chartered accountant firm. Admittedly, it was the choice of the landlord as to against which of the tenants he will bring a suit for eviction on the ground of reasonable requirement. Apart from that plaintiff tried to make out a case that ground floor will be convenient for smooth running of his chartered accountant firm which is being run presently in one of his rooms in the second floor. As such, from the case as made out in the plaint, it was apparent that the plaintiff-landlord preferred ground floor for running his chartered accountant firm. Furthermore, it is not the case of the petitioner / defendant that the plaintiff-landlord got possession of the first floor tenanted premises from the earlier tenant and then sold out the same to a third party. Selling out of tenanted portion of the first floor to the tenant in occupation is in no way connected with the main issue of this case and accordingly I reject this application being irrelevant.;