- (1.) THIS Second Appeal is directed against the judgment of affirmance passed by the learned Assistant District Judge, 3rd Court at Alipore in Title Appeal No. 31 of 1996 affirming the judgment and decree dated 21st September, 1995 passed by the learned Munsif, 3rd Court at Alipore in Title Suit No. 471 of 1987.
(2.) THE plaintiffs' suit for eviction on the ground of reasonable requirement of the plaintiffs and the members of their family was allowed on contest by the learned Trial Judge. Being aggrieved by the judgment and decree of the learned Trial Judge, the defendant/appellant preferred an appeal before the learned First Appellate Court. Two applications were filed by the appellant in the said appeal. One of such application was filed under Order 8 Rule 9 of the Code of Civil Procedure seeking leave to file an additional written statement for bringing on record certain facts which according to the appellants, could not be brought on record at the time of filing original written statement through inadvertently. In the other application which was filed under Order 39 Rule 7 of the Code of Civil Procedure, the appellant prayed for appointment of an Advocate Commissioner for ascertaining the existing accommodation available to the plaintiffs/respondents at their various premises such as 11g, B. L. Ganguly Lane, 11l, B. L. Ganguly Lane and 11m, B. L. Ganguly Lane and the size and mode of user thereof.
(3.) THE learned First Appellate Court rejected both the aforesaid applications filed by the appellant and ultimately affirmed the judgment and decree of the learned Trial Judge. The learned Appeal Court rejected the appellant's application for leave to file additional written statement on various grounds such as:- 1. If the amendment as prayed for is allowed, there will be de novo trial of the suit. 2. The facts which were sought to be introduced are not subsequent events. These events were within the special knowledge of the defendant/appellant even at the time of filing his written statement in the suit. But in spite of such knowledge, why those events were not disclosed by the defendant in his original written statement has not been disclosed by the defendant in its application for leave to file additional written statement. The learned Appeal Court, was of the view, that permission for filing additional written statement cannot be granted unless the reasons for non-disclosure of those events in the original written statement, are disclosed in the leave petition. 3. The facts which were sought to be introduced by way of filing additional written statement are already on record as the parties have given their evidence on those events though those facts were not specifically pleaded by any of the parties in their pleadings. The learned Trial Judge has also considered the effect of such evidence of the parties while disposing of the said suit. As such, according to the learned First Appellate Court, those facts need not be brought on record by amendment of written statement and/or by filing additional written statement in the suit. Thus, the defendant's application for leave to file additional written statement was rejected by the learned First Appellate Court with the aforesaid findings. ;