SRI SURENDRA NATH ROY Vs. SRI GOBINDA CHANDRA DUTTA & ORS.
LAWS(CAL)-1996-7-65
HIGH COURT OF CALCUTTA
Decided on July 10,1996

Sri Surendra Nath Roy Appellant
VERSUS
Sri Gobinda Chandra Dutta And Ors. Respondents


Cited Judgements :-

JOYRAM DAS VS. SUDHIR KUMAR SEN [LAWS(CAL)-2001-8-78] [REFERRED TO]


JUDGEMENT

Sudhendu Nath Mallick, J. - (1.)The instant Second Miscellaneous Appeal has been preferred on behalf of the appellant defendant No. 1 against the order of remand dated 28 11.77 passed by the learned Additional District Judge, 10th Court. Alipore thereby reversing the judgment end decided dated 22.09.76 passed by the learned Munsif, First Additional Court at Alipore in T.S. No. 72 of 1975. It may be noted that initially the said suit was filed before the Court of the 5th Munsif at Alipore being numbered as T.S. No. 230 of 1973.
(2.)The admitted facts are as follows:- The present appellant brought T.S. No. 33 of 1970 in the First Court of Munsif, Alipore against the pro-defendant-respondent No, 4 Jiban Krishna Dutta in respect of the suit premises and obtained an ejectment decree which was confnmed by the First Appeal Court and the Second Appeal preferred by him before this High Court was summarily rejected After the execution case was started in respect of the decree obtained by the present appellant the said T.S. No.230 of 1973=T.S. No. 72 of 1976 was filed by the plaintiff-respondents Nos. 1 to 3 with a prayer for declaration that the said decree was not binding upon them and for permanent injunction. It is their case that the said Jiban Krishna Dutta took the tenancy on behalf of the joint family business of the plaintiff respondents Nos. 1 to3 and the pro respondents Nos.4 to 5, being the karta of the family It Was further alleged that the tenancy was taken for manufacturing purpose and that the ejectment decree was obtained by the defendant-appellant in collusion with the proforma defendant respondent Jiban Krishna Dutta. The Trial Court after considering the evidence on record decided the issues 2 to 5 against the plaintiff-respondents Nos. 1 to 3 and dismissed the suit. the learned Munsif has found that the entire tenancy in respect of the suit premises was the exclusive tenancy of pro-defendant-respondent No 4 Jiban Krishna Dutta against whom the present appellant-defendant No. 1 got a decree of eviction in T.S. No. 33 of 1S70 which was confirmed up to Second Appeal. The learned Munsif in this judgment dated 22.9.76 has found that the said Jiban Krishna Dutta was the sole tenant under the present appellant. He has also negatived the plaintiff-respondents case that they had a joint family business in the suit premises and that pro-defendant-respondent No 4 i.e. Jiban Krishna Dutta was managing the same on behalf of all. The learned Munsif after considering all the evidence adduced by the plaintiff-respondents has disbelieved the story of joint family business. The learned Munsif has also come to a finding that there is a reasonable ground for believing that the suit has been instituted to avoid eviction of the said pro respondent No. 4 Jiban Krishna Dutta. It appears from the judgment of the learned Munsif that it was contended before him on behalf of the plaintiff-respondents that the tenancy was for manufacturing purpose and therefore, six months notice was required to terminate the tenancy. But, the learned Muusif as observed, and in my view has rightly observed, that the point was already decided in T.S. No. 33 of 1970 which was confirmed by the two Appeal Courts and that as such this point could not be reagitated before him, understandably being barred by the principles and res judicata. The plaintiff-respondent preferred appeal against said judgment and decree of dismissal passed by the learned Munsif and the learned Appeal Court by its impugned order dated 28.11.77 in Title Appeal No. 35 of 1976 allowed an application under Order 41 Rule 27 filed by the plaintiff (the respondents Nos. 1 to 3 in the instant appeal) and remanded the suit to the Trial Court for framing an issue to the effect whether the tenancy was for manufacturing purposes or not and to decide the suit afresh. The learned First Appeal Court allowed the Appeal but did not set aside the judgment and decree passed by the Trial Court be was, however, kind to observe as follows:- "I, however, refrain from making any decision on the other issue as decided upon by the learned Lower Court". I have heard Shri Bhattacharjee the learned Advocate appearing for the applicant and Shri Banerjee the learned Advocate appearing for the contesting respondent No. 2. It has been contended by Shri Bhattacharjee that the learned First Appeal Court has improperly and illegally remanded the suit to the Trial Court for a fresh decision after framing an issue whether the disputed tenancy was for manufacturing purposes. It has been rightly submitted by Shri Bhattacharjee that such an issue was uncalled for because the earlier suit being T.S. No. 33 of 1970 was governed by the West Bengal Premises Tenancy Act and decree was passed under the said Act which was confirmed by both the Appellate Courts up to High Court. I have already noted that the learned Munsif in his judgment has recorded that such a question was raised in the earlier suit and was decided against the pro-defendant-respondent No. 4 who was the sole defendant in the said suit and that as such the same point i.e. whether the disputed tenancy was for manufacturing purposes or not could not be re-agitated by the plaintiff-respondents Nos 1 to 3 in the subsequent suit claiming joint tenancy in respect of the self-same premises. Shri Banerjee appearing for the plaintiff-respondent No. 2 has also admitted in all fairness that the impugned order of remand has been improperly passed by the First Appeal Court. After going through the impugned order and after hearing the learned Advocates appearing for both the parties I am of the view that the learned Additional District Judge has manifested a total non application of judicial mind in hearing and disposing of the appeal before him. Admittedly, 28.11 77 was the date fixed for hearing an application under Order 41 Rule 27 C.P.C. but the appeal was not fixed of that date of hearing. While allowing the application under Order 41 Rule 27 by his Order dt. 28.11.77, the propriety of which I shall consider in the following Paragraph-the learned Additional District Judge should not have disposed of the appeal by an order of remand which was not even fixed for that date of hearing. The learned Additional District Judge while passing the order of remand did not follow any of the procedure prescribed for such purpose in the Civil Procedure Code. The Trial Court decided the suit on merits by deciding all the issues framed there on the basis of the pleadings. There was no scope for the learned Additional District Judge to proceed under Order 41 Rule 23. He could not also proceed under Order 41 Rule 23A as he did not consider the findings of the learned Munsif made on all the issues framed in the suit. I have already noted that the learned Additional District Judge has refrained himself from making any decision on the other issues as decided by the Trial Court. He has not given any lawful reason for not doing so. The learned Additional District Judge has not also proceeded under Order 41 Rule 24 or 25 C.P.C. In that view of the matter such an order of remand is per se bad in law and cannot be allowed to stand. Furthermore, the learned Additional District Judge has allowed the application filed by the plaintiff-respondents under Order 41 Rule 27 without proper appreciation of the provisions contend in Order 41 Rule 27 which specifies the circumstances in which production of additional evidence is to be permitted in the Appellate Court. Although no copy of the said application has been produced by this Court, it is admitted by both the parties that in the said application the plaintiff-respondents wanted to exhibit a post suit receipt to show that the tenancy was taken for manufacturing purposes. I have already found that whether the tenancy was for manufacturing purposes or not is not only immaterial but has already been decided in the earlier suit. The learned Additional District Judge has quite oblivious about the findings in the earlier suit and has allowed the application under Order 41 Rule 27 C.P.C. and has remanded the suit to the Trial Court to decide for a fresh decision after framing an issue whether tenancy was taken for manufacturing purposes of not The order of remand is absolutely bad in law and has been passed by the learned Additional District Judge without any application of judicial mind this Court depricates the way he has disposed of the appeal by passing an order of remand without applying his mind to the provisions of law and the materials on record. The learned Additional District Judge should have disposed of the appeal on merits. As a result, the appeal succeeds, and the same is allowed on contest against respondent No. 2 with costs and ex perte against the rest with costs. The impugned order of remand dated 28.11.77 is set aside. The learned Additional District Judge, 10th Court, Alipore is directed to dispose of the Title Appeal No. 35 of 1976 after hearing both the parties within six weeks from the date of communication of this Judgment.
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