ASIM KUMAR MONDAL, J. - (1.) THE present application being No. C.A.N. No. 5287 of 2013 in S.A. No. 94 of 1992 has been filed by the appellant for additional evidence.
(2.) THE opposite party No. 1 Smt. Gayatri Bose and the predecessor -in -interest of opposite party No. 2 Smt. Renu Bose and opposite party No. 2 Ranib Bose instituted a suit, inter alia, for recovery of possession on the ground of expiry of lease with effect from 1st Baisakh 1390 B.S. against the appellant No. 1 and 7 and others in the court of then Learned Munsif, 4th Court at Alipore, District 24 Parganas (South) which was registered as Title Suit No. 274 of 1985. The suit was decreed on contest against the defendants / appellants. An appeal was preferred being No. 382 of 1988 before the learned District Judge at Alipore which was disposed of by the learned additional District Judge, 2nd Court at Alipore. Learned Additional District Judge, allowed the said appeal in part on contest against the contesting respondents and ex -parte against the rest and thereby affirmed the judgment and decree passed by the learned trial Court. The appellants / defendants preferred the second appeal before the High Court being S.A. No. 94 of 1992 which is pending.
(3.) DURING the pendency of the second appeal the respondents Nos. 1, 2 and 3 by a registered deed of sale dated December 26th, 2008 sold the suit property along with two storied brick built building standing thereon to one Saket Promoters Limited has been devolved upon the purchaser being the respondent no. 15. Respondent No. 15 by a letter assured appellants that the school shall be rehabilitated within six months after construction and development of the said premises. They forwarded a proposal with plan for rehabilitation. Secretary of the school i.e. the appellant No. 1 gave reply in details to the said proposal. The respondent No. 15 by his letter dated 23rd September, 2009 informed the appellants that they have purchased the premises No. 15A and 15B Behari doctor Road, Kolkata - 700025 by a registered conveyances. The landlord / owner during the pendency of the Second Appeal before this High Court has accepted the rents from the then Secretary of the School in respect of premises No. 15B till the month of December, 2008 and thereafter the owners of both the premises had informed the then Secretary that they have sold the premises in question including the tenanted portion and requested to pay rent to the respondent No. 15. The documents as disclosed above, all the subsequent documents which were not in existence prior to pronouncement of judgment by the learned lower Appellate Court and as such in spite of due diligence such evidence could not be brought into the records before the Courts below. The applicant in these circumstances pray for necessary order to allow to file the annexures P/1 and P/3 in this applications as an additional evidence in the instant appeal. Mr. Pijush Chaturbedi with Mr. Bhagabat Chowdhury and Ms. Anwesha Saha appeared on behalf of the applicants. Mr. Chaturbedi submits that Saket Promoters Limited who is the respondent No. 15 by a letter dated December 3rd, 2008 as addressed Sri Bhim Narayan Singh, the then secretary of the School as tenant in respect of a portion comprising of 700 Sq. ft. approximately in the ground floor of premises No. 15A/15B Behari Doctor Road, Kolkata - 700025 under Smt. Gayatri Bose and others. Mr. Chaturbedi draws my attention as to the annexure P/1. Learned counsel further submits that from the said letter is the clear that the appellants school is in occupation of premises No. 15B. The letter is received after the judgment and decree passed by the learned Lower Appellate Court. The facts which are intended to be taken on record are subsequent events. The document subsequent to the decree and judgment of the First Appellate Court were not in existence prior to pronouncement of the said judgment and as such in spite of due diligence such evidence could not be brought into the records before the Court below. The documents are vital evidence by which the respondent No. 15 by him the appellants as a tenant in respect of same portion of the said schedule property without considering this document the instant appeal cannot be adjudicated effectively and properly. Mr. Chaturbedi further submits that as such for the ends of justice the appellants be permitted to adduce additional / further evidence specially with regard to documents being annexure P/1 to P/3. Mr. Chaturbedi further draws my attention as to annexure P/3 which are the rent receipts issued by the previous landlords namely Smt. Shanti Ghose, Smt. Manjula Bose, Sm. Leena Bose, Kamal Kumar Bose and Pranati Pawar. These rent receipts were issued during the pendency of appeal. Mr. Chaturbedi further draws photocopies of letters with the applications and submits that the landlords issued law of adjournment with a request to attorn tenancy in favour of Saket Promoters Ltd. Finally Mr. Chaturbedi submits that from the facts and circumstances it appears from the documents which were received subsequent to the judgment and decree passed by learned Lower Appellate Court are very vital and necessary to be adduced for effective adjudication by this Court. Mr. Chaturbedi seeks permission to adduce further evidence in respect of rent receipts issued by the previous owners in favour of appellant during the substance of instant appeal thereby recognising the appellant to be a tenant and further with letter dated December 3rd, 2008 issued by the respondent No. 15 that is the subsequent purchaser of the suit property proposed rehabilitation of the appellant as a tenant therein and finally letter dated March 18th, 2009 issued on behalf of the appellant seeing the proposed building plan with specification as regards the proposed rehabilitation. Mr. Chaturbedi tried to impress him as to the power of the First Appellate Court to consider the evidences adduced by the party before Trial Court to take additional evidence for proper adjudication. Mr. Chaturbedi relied upon the decision of Hon 'ble Apex Corut reported in 1981 SCC Page 113 and AIR 2005 SC 99. Mr. Suman Dutta with Mr. Atish Ghosh and Arindam Chandra appeared on behalf of the respondent No. 15 to oppose the prayer of the applicants. It is submitted that the appellant has lodged the case before the Trial Court as well as First Appellate Court. There are concurrent findings of both the Courts as regarding the right, title and interest of the appellants. Learned both the Trial Court and First Appellate Court has viewed that the appellant was under occupation of the suit property by dint of lease Deed for 22 years. After expiration of lease period both the courts below have protected to vacate the premises. There is no scope to adduce additional evidences on the new cause of action at the stage of second appeal before the High Court. In second appeal High Court has got no scope to consider evidences adduced by the parties before learned Trial Court. Mr. Dutta referred one decision by High court reported in AIR 1992 Andhra Pradesh 304.;