- (1.) This First Miscellaneous Appeal has been preferred as against the judgment and order of remand passed by the learned judge 4th Beech, City Civil Court, Calcutta passed on 30th September 2013 in connection with Title Appeal No. 112 of 2011 wherein the learned trial court was pleased to set aside the judgment and order passed by the learned 5th Bench of Presidency Small Causes Court, Calcutta dated 29.07.2011 as passed in connection with the Ejectment Suit No. 297/04(E) and remanded back to the said suit learned trial court with a direction to provide opportunity to the parties to take necessary steps for conducting commission in respect of 10 C Janaki Shah Road. The fact relevant for the purpose of adjudication of this appeal can be stated in brief thus that this defendant/tenant was inducted on 1st December 1967 by one Baijnath Prasad the father of the plaintiffs. The tenant is doing business under the name and style of M/s. Clyde Pvt. Ltd. which is one shop room located at 80 Clyde Row Calcutta 22 and it has been claimed by the plaintiffs/appellants that such road is 60 ft. wide and it is a convenient place to start business by the plaintiff no.5 as he wants to do the same as he has retired from service.
(2.) The eviction suit was filed also on other grounds like sub-letting, default and addition and alterations but the learned trial court only decreed the suit on the ground of reasonable requirement. The matter was assailed before the learned first appellate court as I have already told. It may be noted here that in the court below commission work was done in respect of the suit shop room and also the premises located at 5/1/H/3 Bakery Road. It is the specific case of the plaintiff appellant that 10 C Janaki Shah Road is the property of the father of the plaintiff and as such that cannot be the subject matter of the local inspection. There is such reflection in page no. 34 of the judgment of the learned trial court that the suit property located at Janaki Shah Road is the property of the father and other relations of the plaintiffs. It is on record that the plaintiffs/appellants also filed one cross-appeal before the learned first appellate court as against the order of rejection as regards the sub-letting and addition and alterations but, the learned first appellate court did not touch the issue at all and ordered for remand of the suit for local inspection of that house located at 10 C Janaki Shah Road. Arguing on behalf of the plaintiff/appellant, Mr. Jiban Ratan Chatterjee, learned senior counsel argued by taking me to the different pages of the judgment of the learned trial court to convince this court that the suit property is the only convenient place for the plaintiff no.1/appellant no.1 to do business and the other property located at 5/1/H/3 Bakery Road is situated on the back side of 8 Clyde Row and that cannot be a good place to start the business. Thus he contended that the learned trial court rightly passed the decree for eviction on the ground of reasonable requirement. But in the same breath he submitted that the finding of the trial court as regards sub-letting and addition and alterations were not based on proper appreciation of evidence and findings. He further contended that the learned first appellate court did not consider the cross-appeal at all and remanded back the suit for trial only for fresh commission work in respect of the premises no. 10C Janaki Shah Road which actually belongs to the father of the plaintiff.
(3.) Learned counsel also took me to the cross-examination of DW 1 that is the defendant which was recorded by the trial court on 14.02.2011 wherein the defendant admitted that 10C Janaki Shah Road and 5/1/H/3 Bakery Road situated on the back side of 8 Clyde Row. He also took me to the evidence in chief of DW 1 Para 9 wherein the said defendant claimed that the plaintiffs are the owners and occupiers of premises no. 10C Janaki Shah Road which stands in the name of their father Baijnath Prasad. Thus Mr. Chaterjee contended that it is admitted position that property located at 10C Janki Shah Road is not in the name of the plaintiffs at all and as such there was no necessity on the part of the learned first appellate court to order for remand of the suit only on the ground of non-commission work in respect of that premises. In the alternative Mr. Chatterjee, the learned senior counsel further submitted by taking me to Section 107 of the Civil Procedure Cod to say that the power of the learned first appellate court as already there in that section to go for local inspection in respect of that premises located at 10/C, Janaki Shah Road.;