- (1.) THIS second appeal is directed against the judgment and decree dated 13th June, 2001 passed by the learned Additional District and Sessions Judge, 5th Court, North 24-Parganas, Barasat in Title Appeal No.140 of 1996 affirming the judgment and decree of eviction dated 28th June, 1996 and 4th July, 1996 passed by the learned Munsif, 4th Court at Sealdah in Title Suit No.282 of 1990.
(2.) RESPONDENT as plaintiff filed a suit for eviction against the appellant-tenant, alleging default, and subletting after sending a notice under Registered Post with AD which returned with postal remarks refused. The appellant/defendant contested the said suit alleging, inter alia, that no notice was properly served. It was further case that though the defendant was residing at Andul, Howrah but he executed a power of attorney in favour of his brother Amalendu Bhusan Sengupta for looking after the tenanted premises on payment of rent. It is further case of the defendant-tenant that elder brother of the defendant along with other brothers were in joint mess being members of a joint family and hence belonged to the family of the defendant and hence there was no subletting. On the basis of the pleading of the parties, learned trial court framed several issues including one issue as to the validity and proper service of the notice. Another issue was framed as to whether the defendant was guilty of subletting. Learned trial court decreed the suit for eviction on the ground of subletting. It was confirmed by the lower appellate court by the impugned judgment and decree. The appeal was heard on the following substantial question of law:- (1) Whether the learned courts below substantially erred in law to hold that the defendant was guilty of subletting the suit premises without applying the correct legal test.
(3.) MR. Hiranmoy Bhattacharya, learned counsel for the appellant, submits that the plaint was conspicuously silent about the name of the alleged sub-tenant as well as the specific date of starting of sub-tenancy and that in view of vagueness in the plaint learned Courts below should not have passed any decree on the ground of subletting. MR. Asit Baran Raut, learned counsel for the landlords, on the other hand, submits that the defendant / tenant did not make any such allegation of vagueness in his written statement and rather specifically admitted that presently his elder brother Amalendu Bhusan Sengupta was residing in the suit premises for looking after the suit premises on the strength of a power of attorney executed by the appellant tenant. He further submits that both the parties also led evidence on that score and hence it cannot be said that the defendant/tenant was prejudiced in any way for said alleged vagueness in the plaint. I have considered the submissions made by learned counsels of the parties on this point. There is no scope of taking this point at the time of hearing of the second appeal which can be heard only on a substantial question of law which has already been formulated. However, it appears from the written statement as well as from the evidence on record that the defendant tenant took a specific stand about the occupation of the suit premises by his elder brother Amalendu Bhusan Sengupta and that defendant was not misled in any way. Actually a question of prejudice may arise when due to lack of particulars, the defendant / tenant failed to understand or appreciate the nature of the charge brought against him by his adversary in the pleadings and accordingly failed to meet the same. But in this case this did not happen.;