Tapan Bhattacharyya And Others vs Dipankar Saha And Others

The appeal is utterly without merit and the shameless manner in which has been conducted by present Advocate upon obtaining change smacks of something being seriously wrong with the noble profession.

The matter was substantially heard on August 9, 2019. Advocate then representing the second appellant attempted to find fault with the lower appellate court's judgment and decree. The lower appellate court has reversed the trial court judgment and found, upon appreciating the evidence, that a case for eviction on the ground of reasonable requirement had been made out by the plaintiff-respondents. Upon this court not being inclined to admit the second appeal as no question of law or substance was raised therein, Advocate representing the second appellant on August 9, 2019 submitted that the appellants may hand over peaceful possession of the decretal premises if some time was afforded to them. In the light of such submission, the matter was adjourned till today for the appellants to file an affidavit-of-undertaking in consonance with the submission that they would vacate the decretal premises within a particular time.

The judgment of the lower appellate court is detailed. The judgment deals with the evidence, it refers to the appropriate legal provisions and the grounds of reasonable requirement and the evidence in such regard. In course of reappraising the evidence, the first appellate court found that the plaintiffs were able to establish the ground of reasonable requirement and, as a consequence, a decree followed. Cogent grounds have been given in the impugned judgment as to how the case of reasonable requirement was made out and established. There is no law that says that merely because a decree has been upset in the first appeal, a second appeal would have to be admitted as a matter of course. For long, a pernicious practice was prevalent in this court to admit decrees of reversal in second appeal for the mere asking. But that may have been more for the benefit of the Bar than for the system.

For a second appeal to be entertained there has to be a substantial question of law. Oftentimes it is found that undeserving matters get admitted on such banal questions as whether the lower appellate court was correct in reversing the trial court decree or in upholding the same. These are not questions of law, far less substantial questions of law.

In the present case, the first appellate court found, on facts, that the plaintiffs did not have any suitable accommodation except the suit premises; that there was no plea taken in the written-statement regarding any alternative accommodation; and, that an ancestral property that the plaintiffs were partly entitled to had never been in the possession of the plaintiffs.

The prayer made on behalf of the appellants at the last hearing on August 9, 2019 was not an unusual prayer. When a second appeal against an eviction decree appears unlikely to be admitted, Advocates, at times, seek a few months' time from the High Court to have their clients vacate the decretal premises. Indeed, such a prayer ensures the continuation in possession of the judgment-debtor without interference by the decree-holder for some time. Equally, at the end of such time, the decree-holder gets possession as the judgment-debtor is saved the ignominy of being physically thrown out of the property in execution proceedings. Advocate representing a judgment-debtor has due authority to seek time from the High Court for the possession of the decretal premises to be handed over rather than the judgment-debtor being forcibly evicted in course of execution. The only flip side in such a scenario is that no appeal can be carried from the order passed in the second appeal and an undeserving litigant can no longer take advantage of the delay in the court system.

A new ground is sought to be urged today to the effect that the plaintiffs had no title to institute the suit at all.

The humourous reason which is given in support of such argument is that since the owner or landlord had died and the present plaintiffs were only the heirs of the original owner and probate proceedings pertaining to the Will of the original owner have not been completed, the plaintiffs could not have instituted the suit or sought the eviction of the second appellants. Such argument has to be rejected without any discussion, considering the complete lack of merit therein. It is preposterous to suggest that the heirs of a deceased owner of a property cannot sue a tenant or seek eviction till the probate of the Will of the owner is obtained.

It is evident from the appellate judgment impugned herein that the objection as to the maintainability of the suit on the ground that probate was not obtained was canvassed during the first appeal. On facts, the first appellate court recorded that upon the death of the original landlord his heirs being his son and his two daughters were the plaintiffs. It was an admitted position that the original landlord had executed a Will since the two sisters of the propounder consented to the grant of probate. However, the relevant court had not found time to dispose of the probate matter despite the matter being uncontested.

To boot, the lower appellate court noticed that it was the first plaintiff son who was the sole legatee under the uncontested Will and the grounds of reasonable requirement were qua the first plaintiff. Further, the case of reasonable requirement was also based on the sisters of the first plaintiff occasionally visiting their parental home. On this count, the lower appellate court reasoned that it was not unusual for sisters to visit their brothers even in the absence of parents, particularly when the parental home otherwise remains the same.

Since there does not appear to be any question of any importance or substance which has arisen herein, the second appeal cannot be admitted. SAT 496 of 2018 and CAN 6263 of 2019 are dismissed with costs assessed at Rs.20,000/-which the respondents will be entitled to recover in course of the execution proceedings.

Urgent photostat website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.