Atul Krishna Banik vs Ambika Charan Dey and Another

D. Pathak, Actg. C.J.

Earlier this matter was filed as an appeal. But by an order of this, Court passed today on an application u/s 151 of the Code of Civil Procedure, the second appeal is converted into a revision Petition subject to the question of maintainability and other points that may be raised as a revision Petition by the Respondents

The facts are very brief which may be narrated as follows:

The Petitioner Was a monthly tenant under the Respondent for a long time and in 1964 by a Kerayanma executed by the Petitioner, it was stipulated that the Petitioner shall be a monthly tenant on payment of rent of Rs. 155/- was from 7.11.64 for a period of five years on the conditions that the Petitioner shall not make any alteration or extension to the suit Petitioner and other conditions contained in the Kerayanama dated 7.11.64.

The Respondents filed a suit for eviction of the Petitioner on various grounds, interalia, that the Petitioner had made alteration and extension to the suit premises and had been keeping combustible Articles like straw under an (SIC) constructed by him without Permission of the Respondents. The further averment of the Respondents in the (SIC) is that the suit premises were required by them for their own use. The Petitioner consisted the suit by filling written statement taking all the technical pleas like that (SIC)was want of cause of action, non-maintainability of the suit as well as of valid notice. The main averment of the Petitioner in the written statement are that he has not altered or extended the suit premises without the permission of the Respondents, (SIC) there is any material to show that the suit premises were bonafide required by the Respondents for their own use.

On the pleadings of the parties, the learned trial Court framed seven issues and no consideration of the evidence adduced, the learned trial Court decreed the (SIC)in favour of the Respondents-Plaintiffs. The Petitioner being aggrieved preferred an appeal before the First Appelate Court and the First Appellate Court by an exhaustive judgment has held that there was no material which calls for interference with the judgment and decree passed by the learned trial Court. Against the aforesaid judgment and decree passed by the First Appellate Court, the present proceeding has been started in this Court.

Mr. S.K. Senapati, the learned Counsel appearing for Petitioner submits that the Kerayanama Ext. 3, which contained certain conditions, the violation of which is the ground for the filing of the suit, having been held to be ino(SIC) by the First Appelate Court, because its having being (SIC) unilaterally by Petitioner, the Appellate Court could not have taken into consideration, the violation of any of the conditions contained in the aforesaid Kerayanama. The second submission of the learned Counsel for the Petitioner is that the finding rendered by the First Appellate Court on the requirement was not at all tenable because there was no issue framed by the learned trial Court in this regard.

Regarding the first contention of the learned Counsel for the Petitioner it suffices to say that though the Keraysnama was inoperative, the conditions contained therein coupled with the evidence adduced on behalf of the parties, can be taken into consideration by the Courts below. It has been found as a matter of fact that there is violation of some of the conditions contained in the Korayanama Ext. 3. It is found not to be disputed that the Petitioner kept some glass wares wrapped in straw which was found to be combustible and inflammable material, There is also further finding on the basis of the evidence that there was some alteration and extension of the suit promises by the Petitioner. Both the items had been found to be in violation of the conditions of the tenancy.

Regarding the second contention, the learned Appellate Court has already noted that merely because there was no issue framed regarding the bonafide requirement the Court can go into it, if it is found from the pleadings of the parties as well as on the evidence, In my opinion, that is the correct proposition of law.

I have gone through the pleadings of the parties, the plaint as Well as the written statement. In the plaint there is a specific averment that the suit premises were required by the Plaintiffs for their own use. In the written statement, the aforesaid averment has been traversed by the Petitioner. Further it is the finding given by the Appellate Court that evidence adduced on behalf of the parties disclosed that question of bonafide requirement was contended in the suit itself, The learned Counsel for the Petitioner submits that the question of the oral evidence is merely oath upon osth. The Plaintiff asserted that it was bonafide required by them for the use of their children''s study, which has been converted by the evidence of the Petitioner that it Was not so required. On this question the appellate court has rendered a finding that there was no material to disbelieve the evidence adduced on behalf of the Plaintiffs. In that view of the fact, the Court has held that even apart from the question of the violation of the conditions of the tenancy contained in Ext. 3. the suit could be decreed even on the ground of bona fide requirement of the suit premises. These findings are rendered by the First Appellate Court and in a revision petition I do not find any error impinging the jurisdictional question.

In the result this petition is without merit and the tame is rejected. The Rule, is discharged. The stay order stands vacated.

Mr. Senapati, the learned Counsel for the Petitioner submits that the Petitioner has been in the suit premises for a long time and therefore he may be allowed to stay at least for a period of six months so that he can make some alternative arrangement and also to take out the ekchala constructed by him.

I find that the submission of the learned Counsel is just and proper. Let the Petitioner be allowed to stay in the suit premises for a period of six months from today. He shall be given facilities for removing the ekchala from the suit premises which was constructed by him.