- (1.) THE judgment and order impugned in this first miscellaneous appeal bears reflection of complete non-application of mind by the learned Additional District Judge, 1st Court, Howrah while interfering with the judgment and decree passed by the learned Civil Judge (Junior Division), 2nd Court, Howrah and in remanding the suit for eviction filed by the appellant for consideration of two additional issues that were framed by him.
(2.) THE appellant instituted a suit (T.S. No. 58 of 2000) against the predecessor-in-interest of the respondents under the West Bengal Premises Tenancy Act, 1956 for his eviction from the suit property (the tenanted premises) on the ground of default and reasonable requirement as well as restoration of possession. The learned trial judge framed the following issues for decision: 1. Is the suit maintainable in its present form and law? 2. Is the plaintiff owner of the suit property? 3. Whether the defendant caused damage to the suit property? 4. Whether the plaintiff requires the suit property for her own use and occupation? 5. Is the notice served upon the defendant legal, valid? 6. Is the defendant defaulter in payment of rent? 7. Is the plaintiff entitled to a decree as prayed for? The suit was decreed vide judgment and decree dated February 27, 2006 and March 10, 2006 respectively upon acceptance of both the grounds on which eviction was sought for by the appellant. Since the respondents in this appeal during the pendency of the suit were substituted in place of the original defendant (the tenant) who had passed away, they were given 45 days' time by the learned trial judge to hand over possession of the suit property to the appellant failing which the appellant was granted liberty to put the decree to execution in accordance with law.
(3.) THE respondents carried the judgment and decree of the learned trial judge in appeal (T.A. No. 74 of 2006). By his judgment and order dated August 25, 2006, the learned judge of the lower appellate court upheld the decision of the learned trial judge in respect of issues 1, 2, 3, 5 and 6; however, the decision regarding issues 4 and 7 were set aside and the learned trial judge on remand of the suit was directed to give his decision on the following two additional issues: 4(a) Whether the plaintiff has alternatively suitable accommodation elsewhere for her own use and occupation? 4(b) Whether the defendant has any accommodation for his own use and occupation elsewhere? ;