The Calcutta High Court has observed that in an eviction suit filed solely on the ground of reasonable requirement, suitable alternative accommodation has to be ascertained for just decision.

The Court was considering Revision Petition assailing the order passed by Civil Judge refusing the prayer for local inspection by Advocate under Order 39 Rule 7 of the Code of Civil Procedure.

The single-bench of Justice Bibhas Ranjan De observed, "...the eviction suit was filed solely on the ground of reasonable requirement. Therefore, availability of the suitable alternative accommodation has to be ascertained for just decision of a suit for eviction on the sole ground of reasonable requirement. On this score, the impugned order, in my opinion, is not sustainable in law and liable to be set aside."

The Petitioner was represented by Advocate Siva Prosad Ghosh while the Respondent was represented by Advocate Gautam Das.

The Respondent had filed a suit for eviction on the ground of reasonable requirement, against the Petitioner and therefore the latter and his family members pleaded available accommodation to the Respondent as there was no other alternative suitable accommodation. In course of that proceeding one local inspection was held at the instance of the Respondent which ended in submission of final report. Subsequently, further construction was made in each floor of the subject premises by the Respondent and thereafter Petitioner filed one application under Order 6 Rule 17 of the CPC with a prayer for incorporation of the fact of ‘subsequent construction’ and also an application under Order 39 Rule 7 of the CPC with a prayer for further local inspection with regard to ‘subsequent construction’. The Trial Court al beit allowed the amendment application but refused to allow further inspection.

The legal proposition for Court's consideration was whether it can invoke the provision of Order 39 Rule 7 of the CPC for ascertaining suitable alternative accommodation available to the plaintiff/landlord in a suit for eviction on the ground of reasonable requirement.

The Counsel for the Petitioner argued that subsequent construction was allowed to be incorporated in the written statement by way of amendment but the prayer for local inspection in this regard, was refused without any valid reason.

On the other hand, Counsel for Respondent focused on the ground of business purpose and submitted that the suit room is situated in the ground floor facing road which is required for the purpose of initiating business by one of the members of the plaintiff’s family. He averred that the suit was filed for eviction on the ground of requirement for the purpose of business and not for residential purpose.

The Court at the outset took note of the essential requisites for an eviction suit on the ground of reasonable requirement and noted that the suit for eviction solely on the ground of reasonable requirement i.e. for his own use and occupation and also for the benefit of the members of the family.

"In paragraph 9 of the revised plaint, it is categorically highlighted that the sole ground for eviction is reasonable requirement of the family members of the plaintiff who has no other suitable alternative accommodation. In the revised plaint, plaintiff pleaded his possession of one room in the ground floor and one room in the first floor," the Court observed.

The Court was of the view that contents of the written objection to the application under Order 39 Rule 7 of the CPC, is nothing but clear departure from the nature of the suit for eviction solely on the ground of reasonable requirement.

"Therefore, considering the nature of the suit, subsequent construction is very much required to be inspected by an Advocate Commissioner to ascertain whether there is any alternative suitable accommodation available to the opposite party/ plaintiff," the Court observed.

It also clarified that the ground of ‘commercial purpose’ has not been pleaded anywhere in the revised plaint.

"Such plea of ‘commercial purpose’ has been taken for the first time in the written objection to the application under Order 39 Rule 7 of the CPC and that cannot be an issue of the suit," it added.

The Court found that the Judge ignored the basic principle for consideration of an application under Order 39 Rule 7 of the CPC.

The Petition was accordingly allowed.

Cause Title: Bimal Chandra Sarkar & Anr. vs. Smt Dipali Dutta Roy (Paul)

Appearances:

Petitioner- Advocate Siva Prosad Ghosh, Advocate Srijani Mukherjee

Respondent- Advocate Gautam Das

Click here to read/ download Judgement:









Bombay High CourtJustice Bibhas Ranjan De

Sheetal Joon