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Smt. Kakuli Mitra (Widow) & Ors vs Sri Prabir Kumar Nag & Anr on 22 January, 2020

IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE

The Hon’ble JUSTICE BIBEK CHAUDHURI

SA 118 of 2010
+
CAN 10596 of 2013

Smt. Kakuli Mitra (widow) Ors.
Vs.
Sri Prabir Kumar Nag Anr.

For the appellants: Mr. Ayan Banerjee, Adv.,
Mr. Suchayan Banerjee, Adv.
For the respondents: Mr. Ashish Kumar Bagchi, Adv.,

Mr. Sauradipta Banerjee, Adv.,
Mr. Arnab Roy, Adv.

Heard on: December 16, 2019.

Judgment on: January 22, 2020.

BIBEK CHAUDHURI, J. : –

1. Defendant in a suit for eviction under West Bengal Premises

Tenancy Act is the appellant before this Court.

2. One Prabir Kumar Nag and his wife Smt. Mousumi Nag,

respondents herein instituted Ejectment Suit No.1284 of 2000 before the

learned Judge, 4th Bench, Small Causes Court, Calcutta praying for

eviction of the appellants on the ground of default, reasonable

requirement and violation of Clauses (m), (o) and (p) of Section 108 of the
2

Transfer of Property Act. The appellants contested the suit by filing

written statement and additional written statement.

3. After contested hearing the trial court by his judgment and decree

dismissed the suit on the ground that the notice under Section 13(6) of

the West Bengal Premises Tenancy Act, 1956 (hereinafter described as the

Said Act) was defective in view of the fact that by virtue of the said notice

entire tenancy of the defendants was not determined. The learned trial

judge, however, held that the respondents were able to prove the ground

of reasonable requirement envisaged under Section 13(1)ff of the Said Act.

4. The judgment and decree of dismissal of the said suit led the

respondents to file an appeal before the learned Chief Judge, City Civil

Court, which was registered as Title Appeal No.85 of 2006. By impugned

judgment and decree passed on 20th January, 2007 the learned Judge, 6th

Bench, City Civil Court at Calcutta decreed the suit on the ground of

reasonable requirement holding, inter alia, that the notice under Section

13(6) of the Said Act was legal, valid and sufficient.

5. In this Court the judgment and decree passed by the lower

appellate court is challenged by the defendants of said suit.

6. It is found from the record that vide order dated 29th June, 2007

the instant appeal was admitted for hearing formulating the following

substantial questions of law:-

a) Whether the learned first Appellate Court committed

substantial error in law in reversing the judgment and

order passed by the learned trial judge?

3

b) Whether the learned first Appellate Court committed

substantial error in law in holding that the notice to the

tenants was legal, valid and sufficient although the same

was in respect of the portion of the tenancy?

c) Whether the learned Judge of the lower Appellate Court

committed substantial error in law in not considering the

question of partial eviction in terms of Section 13 of sub-

section (6) of the West Bengal Premises Tenancy Act,

1956?

d) Whether the findings of the learned first Appellate Court is

otherwise perverse?

7. Mr. Ayan Banerjee, learned Advocate for the appellants at the

outset draws my attention to paragraph 2 of the plaint where the plaintiffs

stated the extent of tenancy in the following words:-

“That the defendants were the monthly tenants under the

plaintiffs in respect of a flat on the ground floor consisting of

three bedrooms, kitchen, bath, privy and water tap of

premises No.27B, Beadon Row, P.S Burtala, Calcutta-6, at a

monthly rental of Rs.75/- per month payable according to

English Calendar……..”

8. Mr. Banerjee also has pointed out paragraph 3 of the original plaint

where the plaintiffs stated that the defendants in or about 1990 by force

illegally occupied a space on the ground floor near the entrance gate and
4

also by force walled up the northern side and converted the said space to

a room without the consent and permission of the plaintiffs”.

9. Next Mr. Banerjee draws my attention to the amended plaint filed

by the plaintiffs in the trial court on 25th March, 2004. In the amended

plaint it was stated by the plaintiff in paragraph 3 that the space near the

entrance gate of the suit flat which was allegedly occupied by the

defendants forcibly and illegally and was converted to a room without the

consent and permission of the plaintiffs was not included in the extent of

tenancy of the defendants. With this averment, the plaintiffs withdrew

prayer (b) of the plaint that contained and decree for declaration that the

defendant has/had no legal right to retain the legal possession of the said

room as described in schedule ‘B’ of the plaint and recovery of possession

thereof.

10. Mr. Banerjee next refers to the written statement filed by the

defendants in the suit. It is the specific case of the defendants that one

Hrishikesh Mitra, since deceased the husband of defendant No.2 was

inducted as a tenant in respect of the entire ground floor consisting of

three bedrooms, one kitchen, one Thakurghar, bath, privy, courtyard

excepting a room on the said ground floor by the side of the main

entrance under one Kabita Ditta. Sabita Ghosh, Bimala Rani Mitter at a

monthly rental of Rs.60/- payable according to English Calendar.

Sometimes in 1955, the room situated near to the main entrance gate of

the defendant’s flat was also let out to P.K. Engineering Works,

proprietorship firm owned by one P.K Mitter, since deceased, the husband
5

of defendant No.1 at a monthly rental of Rs.15/- per month payable

according to the English Calendar. After the death of Hrishikesh Mitra in

the year 1960 the above mentioned two tenancies were clubbed and/or

consolidated into a single tenancy in respect of entire ground floor at a

rental of Rs.75/- in favour of P.K Engineering. The rent bill was

accordingly issued in respect of entire ground floor in the name of P.K

Engineering till the death of the said P.K. Mitter, who died sometime in

the month of July, 1966. After the death of the said P.K. Mitter, tenancy

was attorned to the defendants who were the widows of Hrishikesh Mitra

and P.K Mitter, both deceased under same rate of rent. It is also the case

of the defendants that on the request of the plaintiffs the original

defendants vacated one room situated on the western side of the ground

floor for possession of the Darwan of the plaintiffs. After the death of the

original Darwan of the plaintiffs, his two sons are still residing the

western side room of the suit premises. The present plaintiffs purchased

the suit property from the original owners and they became landlord in

respect of the suit premises. Thus the defendants claimed that the

description of the tenanted premises was wrongly stated in the plaint as

well as the eviction notice under Section 13(6) of the Said Act. According

to Mr. Banerjee as the tenancy was not determined to its foulest extent,

no decree in the suit for eviction could be passed.

11. Learned Advocate for the appellant submits that according to the

case of the plaintiffs, the defendants are tenants in respect of one ground

floor flat consisting of three bedrooms, one kitchen, one store room, bath,
6

privy and water tap and a courtyard. The learned Judge in the lower

appellate court wrongly held that even assuming that a new tenancy was

given in respect of one room near the entrance gate of the ground floor flat

under occupation of the defendants, the extent of tenancy of the

defendants would be four rooms apart from kitchen, Thakurghar or

storeroom and one courtyard. The defendants themselves admitted that

they had surrendered one western side room under their possession for

occupation of Darwan of the plaintiffs. Thus from defendants’ possession

of four rooms besides kitchen, Thakurghar or storeroom, bath and privy

etc, one room was reduced when they surrendered the same in favour of

plaintiffs for the possession of the Darwan of the plaintiffs. Thus

according to the learned lower appellate court the extent of tenancy in

respect of three rooms, one kitchen, Thakurghar or storeroom, bath, privy

and courtyard remained under the possession of defendants when the

suit was filed by the plaintiffs. Thus the learned Judge in First Appellate

Court found that there is no dispute between the parties regarding extend

of tenancy of the defendants in the suit premises. The Commissioner’s

Report can also be reconciled with the plaintiffs of the parties. Under such

circumstances, the learned Judge in First Appellate Court held the extent

of tenancy was correctly stated in the notice under Section 13(6) of the

Said Act.

12. According to Mr. Banerjee the above finding is absolutely perverse

and contrary to the evidence on record and this Court has every authority
7

to look into the evidence on record in view of substantial questions of law

formulated in ground (d) by the Division Bench of this Court.

13. I have carefully perused the Commissioner’s report as well as the

evidence adduced by the witnesses on behalf of the plaintiffs and the

defendants to independently ascertain the extent of tenancy in respect of

the suit premises.

14. It is found from the evidence on record as well as the

Commissioner’s report that the defendants are in occupation of entire

ground floor of premises No.27B, Beadon Row. The extent of tenancy

consists of one room on the eastern side of the suit flat, two rooms on the

southern side of the said suit flat, one small room, named as Thakurghar

or storeroom in between two southern side rooms. There is a room on the

western side of the courtyard which was surrendered by the defendants

for the occupation of the Darwan of the plaintiffs. On the extreme north

by the side of staircase there is a room which, according to the plaintiffs

was forcibly occupied by the defendants. On the contrary, it is the case of

the defendants that said room was given at rent sometimes in 1955 in the

name of P.K Engineering, a proprietorship firm of one P.K Mitter. After the

death of the said P.K Mitter, both the tenancy were clubbed together and

rate of rent was fixed at Rs.75/-.

15. According to Mr. Banerjee the defendants/appellants are tenants in

respect of four rooms, one Thakurghar or storeroom, one kitchen, bath

and privy, courtyard etc leaving aside the room which was surrendered by

the tenants at the request of the original plaintiffs to accommodate
8

Darwan of the plaintiffs. The ejectment notice under Section 13(6) of the

said Act clearly shows that tenancy was determined in respect of three

rooms, one kitchen, one thakurghar or storeroom, bath and privy etc.

since the description of tenancy was wrong and entire tenancy was not

determined, the notice to quit was illegal, inoperative and insufficient. The

learned Judge in First Appellate Court failed to appreciate the extent of

tenancy of the defendants and wrongly held that the notice to quit was

legal, valid and sufficient.

16. Mr. Sauradipta Banerjee, learned Advocate on behalf of the

respondents, on the other hand, submits that if the statements in plaint

and written statement are reconciled, it would be found that there is no

ambiguity in describing the tenancy in question in the notice to quit. It is

stated by the learned Advocate for the respondents that the specific case

of the defendants/appellants is that the husband of defendant No.2 Late

Hrishikesh Mitra was inducted as tenant sometimes in 1950 in respect of

the entire ground floor consisting of three bed rooms, one kitchen, one

thakurghar, bath and privy and a courtyard excepting a room on the said

ground floor by the side of main entrance under one Kabita Dutta, Sabita

Ghosh, Bimala Rani Mitter at the rental of Rs.60/- per month payable

according to English Calendar. Sometimes in the year 1955 one P.K

Engineering, a proprietorship firm owned by one P.K Mitter, since

deceased, took tenancy in respect of the said one room situated by the

side of main entrance in the ground floor at a monthly rental of Rs.15/-.

After the death of Hrishikesh Mitra in 1960, the aforesaid two tenancies
9

were consolidated and one single tenancy in respect of entire ground floor

at a monthly rental of Rs.75/- was created. According to the learned

Advocate for the respondent the said fact has not been proved by the

defendants during trial of the suit. It is urged by the learned Advocate for

the respondent that extent of tenancy being a concurrent finding of fact

cannot be agitated in the second appeal.

17. He also refers to the case of the plaintiff depicted in the original

plaint where it is specifically pleaded that the defendants illegally

trespassed into the said room situated by the side of the entrance of the

ground floor flat. Initially, the suit was filed for eviction of tenants as well

as for eviction of the defendants from the said one room situated by the

side of the entrance of the ground floor flat under Section 6 of the Specific

Relief Act, but the relief in the form of decree under Section 6 of the

Specific Relief Act was omitted by way of amendment of plaint as the

Small Causes Court had no jurisdiction to try a suit under Section 6 of

the Specific Relief Act based on title. Therefore, after amendment of plaint,

suit was confined to extent of tenancy and eviction of the defendants from

the tenanted premises situated in the ground floor of the premises in suit.

18. It is further argued by Mr. Banerjee, learned Advocate for the

respondents that when the defendants claimed that their tenancy was

extended also to one room situated by the side of the entrance of the

ground floor apart from the rooms mentioned in schedule ‘A’ of the plaint,

it was the duty of the respondents to prove that one P.K Engineering was

inducted as a tenant in respect of the said room and the original
10

landlords issued rent receipts in respect of the said room in the name of

P.K Engineering.

19. Learned Advocate for the respondents submits that the respondents

became the landlord in respect of the suit premises by purchase of

premises No.27B, Beadon Row. After their purchase, the respondents,

namely, Prabir Kumar Nag and Mousumi Nag sent two separate letters

stating, inter alia, that they purchased undivided half share each of

premises No. 27B, Beadon Row from the owners/landlords and requested

the defendants/appellants to attorn tenancy in favour of them and pay

rent to them along with all arrears. The said two letters of attornment

were marked Exhibit-E and Exhibit-G during trial of the suit at the

instance of the appellants. Similarly, the erstwhile landlords, namely,

Kabita Dutta, Sabita Ghosh and Bimala Rani Mitter informed the

appellants stating, inter alia, that they had sold out their undivided share

in favour of the respondents and the appellants should attorn their

tenancy in favour of the respondents. The said letters of attornment were

marked as Exhibit-F, Exhibit-H, Exhibit-I and Exhibit-J respectively by

the defendants. In the above mentioned letters of attornment tenancy of

the appellants were described as in respect of the ground floor of the

premises No. 27B, Beadon Row at a monthly rental of Rs.75/- payable

according to English Calendar month. On careful perusal of the evidence

on record which I am constrained to consider independently in order to

come to a finding as to whether the impugned judgment suffers from

perversity for non consideration of material evidence on record, I find that
11

the learned Advocate for the respondents is wrong in his submission that

no rent receipt was ever issued in favour of P.K Engineering. The

defendants/appellants filed some old rent receipts wherefrom it is found

that rent was collected in respect of one room from M/s P.K Engineering

Works on behalf of Smt. Kabita Dutta, Smt. Bina Dey and Smt. Bimala

Rani Mitter according to their share in the property. Therefore, the rent

receipts (Exhibit-A series) prove that M/s P.K Engineering Works was the

tenant in respect of one room in the suit premises and the predecessor-in-

interest of the appellants, namely Hrishikesh Mitra, since deceased was

inducted as a tenant in respect of the remaining portion of the ground

floor of the premises in suit. The said two tenancies were subsequently

consolidated to one tenancy after the death of Hrishikesh Mitra.

20. Be that as it may, when the respondents purchased the property

the defendants were tenants in respect of entire ground floor except one

Darwan’s room of premises No. 27B, Beadon Row at a monthly rental of

Rs.75/- payable according to English Calendar.

21. The notice to quit (Exhibit-2) states that the defendants were

tenants in respect of entire ground floor. The dispute between the parties

relating to the illegality of the notice is as to whether entire ground floor

comprises of three rooms, one Thakurghar or storeroom, one kitchen,

bath and privy, courtyard etc or four rooms, one Thakurghar or

storeroom, one kitchen, bath and privy and courtyard etc.

22. Even assuming that extent of tenancy was not properly described

eviction notice under Section 13(6) of the Premises Tenancy Act, it is not
12

in dispute that in the notice, it is clearly stated that the

defendants/appellants were tenants in respect of the entire ground floor.

The Division Bench of this Court in Smt. Gita Devi Shah Ors vs. Smt.

Chandra Moni Karnani Ors. reported in AIR 1993 CAL 280 held in

paragraph 45 of the report as hereunder:-

“45. A notice under Section 13(6) is a must for instituting a
suit against the defendant. The relevant portion of the said
section in its categorical terms states that no suit,
proceedings can be instituted without seving a notice
under Section 13(6). It is a procedure led and not substantive
law and although Indian legal system is not so stringent as
an English Law, with regard to the procedural part, yet care
must be taken to see that unjustified liberalisation with
regard to pro-cedural part does not create anomalous position
resulting in mis-carriage of justice. The notice is a warning to
the tenant having a threat to sue in case the tenant fails to
comply with the requisition. The language must be clear, the
tenancy should be described as specifically as is expected
from a normal and reasonable man. This however, is an
established principle of law and no notice under Section
13(6) of the said Act of 1956 would be declared bad, only
because the tenancy has: not been exactly defined. The
reason being that the tenant knows his own tenancy and the
test is whether he had understood the purport of the notice or
not. It is also necessary that| the grounds stated in the notice
can only be; taken in the plaint. But, however, it is also:
established principle of law that the plaint must be absolutely
clear in describing the, tenancy as the court will pass decree
of eviction from the premises as stated in the plaint.”

13

23. Mr. Ayan Banerjee, learned Advocate for the appellants on the other

hand relies upon a decision of the Allahabad High Court in Ghasi Ram

Ors vs. Jagat Narain Ors reported in AIR 1976 ALL 221 it is held in

the aforesaid report that when in the notice to quit, the landlord has

stated that the tenant is in possession of a certain portion qua-tenant and

other portion as a trespasser, the said notice is invalid. Because, notice

must extend to whole of the demise premises and not in part only;

otherwise, the notice will be bad. In the instant case it is stated by the

plaintiffs that the defendants were tenants in respect of entire ground

floor. Admitted case of both the parties is that one room of the ground

floor was subsequently surrendered for the Darwan of the plaintiffs.

Except the said Darwan’s room, the defendants are in possession of entire

ground floor. Tenancy of the defendants were determined by notice to quit

(Exhibit-2) in respect of entire ground floor. Under such circumstances,

relying on the decision of Gita Devi Saha (supra), I can safely hold that

the notice to quit under Section 13(6) of the said Act cannot be held to be

illegal, invalid or insufficient on the ground of misdescription of the extent

of tenancy. If the suit is decreed, the decree is well executable because in

such case, defendants would be liable to be evicted from entire ground

floor.

24. In view of the above discussion, I hold that the notice under Section

13(6) of the West Bengal Premises Tenancy Act was legal, valid and

sufficient and there is no reason to interfere with judgment passed by the

learned First Appellate Court on the ground of legality, validity and
14

sufficiency of the ejectment notice in connection with Title Suit No.1284 of

2000 Substantial questions of law in ground Nos. (b) and (d) are therefore

answered in negative.

25. On the issue of reasonable requirement of the

plaintiffs/respondents for their own use and occupation, both the Courts

below concurrently found that the respondents reasonably required the

suit premises for their own use and occupation.

26. At the time of admission of the appeal, the Division Bench

formulated a question of law as to whether the learned Judge in lower

appellate court substantially erred in law in failing to consider the

question of partial eviction to satisfy the need of the plaintiffs. It is stated

by the plaintiffs in the plaint that the family of the plaintiffs consists of

both the plaintiffs who are husband and wife, one daughter who was aged

about 13 years at the time of institution of the suit, widow mother of the

plaintiff No.1, one whole time maid servant and one Darwan. It is further

stated by the plaintiff they are in possession of two bed rooms on the

second floor and one asbestos shed small room as kitchen and one

staircase room as Thakurghar on the same floor. The plaintiffs claimed

that they reasonably required one room for themselves, one room for their

daughter, one room for the mother of plaintiff No.1, one study room for

the daughter of the plaintiffs, one room to be used as Thakurghar, one

drawing room cum guest room, one room for their made servant, one

storeroom and one kitchen apart from bath and privy. During trial of the

suit the plaintiff’s accommodation on the second floor of premises No.27B,
15

Beadon Row was inspected by the Advocate Commissioner and he

submitted his report. It is found from his report that the second floor of

the said premises consists of five rooms, one covered passage and one

bath and privy. Out of them the learned Advocate Commissioner

described a room on the north-west corner of the second floor of the said

premises as a bed room. Room No.2 is a ‘L’ shaped room measuring about

21 ft. x 10 ft. 6 inches and the said room is used as a bedroom. There is a

small room adjacent to the said second room which is used as

Thakurghar of the said premises. Measurement of room No.4 is 16 ft. x 8

ft. and the said room is used as kitchen of the plaintiffs. Room No.5 is

practically a passage measuring about 11 ft. x 6 ft over which building

materials and unused articles were stuck. The roof of the said room is

made of asbestos. There is a covered space measuring about 21 ft. x 3 ft.

which is used as ingress and egress to and from the other rooms under

occupation of the plaintiffs/respondents.

27. During pendency of the appeal both the parties have filed series of

applications. All those applications were directed to be disposed of along

with the appeal.

28. Since the applications filed by the parties relate to the cause of

requirement of the plaintiffs, let me describe the averment in applications

hereinbelow:

The appellants filed CAN 8462 of 2011 for taking note
of subsequent event in as much as the marriage of the
daughter of the plaintiffs/respondents was performed
16

on 2nd March, 2019 and after marriage she has been
residing at her matrimonial home. Therefore it is
pleaded by the appellants the requirement for the
daughter of the plaintiffs was no longer thereafter her
marriage.

By filing an affidavit in opposition against the said
application, it is pleaded by the respondents that her
married daughter often comes to her paternal home
with her husband and the plaintiff’s require one room
for accommodating her daughter and son-in-law during
their occasional visit. Practically the son-in-law of the
plaintiffs carries on business of publication and
distribution of various text books in College Street area
and comes to the suit premises everyday and
occasionally resides there.

29. CAN 8463 of 2011 is another application filed by the appellants

praying for amendment of written statement by incorporating the fact of

marriage of the daughter of the plaintiffs.

30. CAN 8464 of 2011 is another application filed by the appellants

along with the wedding card of the daughter of the plaintiffs with a prayer

to bring the said wedding card on record as evidence. The respondents

have filed an affidavit-in-opposition stating, inter alia, that they have

admitted the marriage of their daughter and therefore wedding card may

not be proved by the appellants by adducing evidence.

31. CAN 8883 of 2011 is an application filed by the respondents

praying for amendment of plaint stating, inter alia, that after institution of

the suit in 1996 the plaintiff No.2 gave birth to a mail child on 18th July,
17

1997. The said son of the plaintiffs is now aged about 22 years and

plaintiffs require a separate room for his accommodation. The appellants

have filed an affidavit-in-opposition stating, inter alia, that during trial of

the suit as well as in first appeal, the plaintiffs did not come forward with

an application for amendment of plaint at this stage the plaintiffs could

not claim additional accommodation for their son. The act and conduct of

the plaintiffs reasonably proves that they have abandoned the claim of

requirement for their son.

32. CAN 10596 of 2013 is an application filed by the respondent for

taking note of subsequent events stating, inter alia, that the son of the

plaintiffs, namely Samsubhra Nag was aged about 16 years on the date of

filing of the application. DW1 admitted during her cross examination that

the plaintiffs have a son and as such the said son has requirement of

accommodation in the house of the plaintiffs. In the said application the

respondents have prayed for leave of the court permitting them not to

press an application for amendment of plaint, i.e., CAN 8883 of 2011. The

defendants/appellants, however did not file any written objection against

the said application.

33. The case of reasonable requirement of the plaintiffs are to be

decided taking into consideration of the above mentioned applications. It

is an established proposition of law that the Court is duty bound to take

into account subsequent events in a suit for eviction on the ground of

reasonable requirement. Law is also trite that evidence cannot be looked

into without pleading. In a suit for eviction on the ground of reasonable
18

requirement for own use and occupation of the plaintiffs and his family

members, requirement goes on changing during passage of time. However

subsequent event is required to be pleaded by the parties.

34. In the instant case the appellants have stated in CAN 8462 of 2011

that the daughter of the plaintiffs got married on 2nd March, 2010 and she

has been residing at her matrimonial home. Therefore requirement

pleaded by the plaintiffs for their daughter does not exist as after her

marriage. In their affidavit-in-opposition, the plaintiffs/respondents, on

the other hand pleaded that her married daughter and son-in-law very

often come to their house practically the son-in-law of the plaintiffs

carries on business of publication and distribution of test books in College

Street areas and regularly visits the suit house and often stays there. CAN

8463 of 2011 is another application filed by the appellants praying for

amendment of written statement incorporating the said fact of marriage

between the parties.

35. Both the applications and affidavit-in-oppositions were filed on

affidavit. These are the statements of the parties on certain factual

changes on the point of reasonable requirement on solemn affirmation.

36. This Court while answering to the substantial question as to

whether partial eviction of the defendants would satisfy the need of the

plaintiffs or not, anxiously ponders over the matter as to whether the

applications for taking note to subsequent event filed by the appellants

and the affidavit-in-opposition thereto can be considered as part of the

pleading of the parties.

19

37. The issue relating to particulars in pleading visa-vise cognizance of

subsequent event came up for consideration before Hon’ble Supreme

Court in K. Srinivas vs. K. Sunita reported in 2014 16 SCC 34 on the

question that the fact filing a false case complaint having been not

pleaded, whether the Court can take cognizance of it. In this context the

Hon’ble Supreme Court observed:-

“Another argument which has been articulated on behalf of
the learned counsel for the Respondent is that the filing of the
criminal complaint has not been pleaded in the petition itself.
As we see it, the criminal complaint was filed by the wife after
filing of the husband’s divorce petition, and being subsequent
events could have been looked into by the Court. In any
event, both the parties were fully aware of this facet of cruelty
which was allegedly suffered by the husband. When evidence
was lead, as also when arguments were addressed, objection
had not been raised on behalf of the Respondent-Wife that
this aspect of cruelty was beyond the pleadings. We are,
therefore, not impressed by this argument raised on her
behalf.”

38. Borrowing this principle in the instant case, it is found from the

affidavit-in-opposition filed by the respondent that they have admitted the

fact of marriage of their daughter in the year 2010. They also admitted the

wedding card of the said marriage of their daughter. In view of such

circumstances, in my considered view this fact can be taken into

consideration as a subsequent event without even amendment of pleading

or taking into consideration the application and affidavit-in-opposition as

part of the pleadings of the parties. This Court holds the similar view in
20

respect of the respondent’s application for taking note of subsequent

events regarding the requirement of the son of the plaintiffs who was born

after institution of the suit especially when the witness on behalf of the

defendant (DW1) admitted in his cross examination that the plaintiffs

have one son and he has requirement for his accommodation in the suit

house.

39. Therefore, taking together the applications, affidavits-in-opposition

as mentioned above and the original pleadings in the form of plaint and

written statement, this Court finds that the family of the plaintiffs

consists of themselves, their son who is now aged about 22 years, widow

mother of plaintiff No.1 and a whole time made servant. It is always

expected that the married daughter and her husband will visit the

plaintiffs and for their accommodation the plaintiffs reasonably require

one room.

40. From the evidence on record as well as the report of the Local

Inspection Commissioner it is ascertained that the plaintiffs are now in

occupation of two bedrooms, one small room used as Thakurghar and one

asbestos shed kitchen.

41. Considering the status of the plaintiffs, I am of the view that the

plaintiffs reasonably require one bedroom for themselves, one bedroom for

the mother of plaintiff No.1, one bedroom for their son, one drawing room-

cum-dining room, one guest room to accommodate the married daughter

and son in law and other guests of the plaintiffs, one study room for the
21

son of the plaintiffs and one room for the whole time maid servant apart

from bath and privy.

42. Thus the respondents reasonably require six rooms.

43. Present accommodation of the plaintiffs is absolutely insufficient

and plaintiffs’ requirement cannot fulfill by way of partial eviction.

44. In view of the above discussion I do not find any substantial

question of law involved in the instant appeal. The appeal therefore

stands dismissed on contest, however without cost.

45. The judgment and decree passed by the First Appellate Court is

affirmed.

46. The appellants had directed to vacate and deliver peaceful

possession of the suit premises within 60 days from the date of this order,

failing which the respondents are at liberty to execute the decree passed

by the First Appellate Court.

47. Let a copy of this judgment be sent down to the lower court below.

(Bibek Chaudhuri, J.)

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