01 December 2004
Supreme Court
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SABITRI CHATTERJEE Vs DEBI DAS ROY

Case number: C.A. No.-009475-009475 / 2003
Diary number: 22609 / 2001
Advocates: SUSHIL KUMAR JAIN Vs BHARGAVA V. DESAI


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CASE NO.: Appeal (civil)  9475 of 2003

PETITIONER: SABITRI CHATTERJEE

RESPONDENT: DEBI DAS ROY

DATE OF JUDGMENT: 01/12/2004

BENCH: B.P.SINGH & ARUN KUMAR

JUDGMENT: J U D G M E N T                  

WITH C.A. NO.9476 OF 2003

       In these two appeals by special leave the appellant is the landlord of  the premises in question which is located in New Alipore in the city of  Calcutta. The appellant has impugned the judgment and order of the High  Court passed in Second Appeal No.415 of 1991 whereby the High Court  remanded the matter by its judgment and order dated 28.7.1998 granting liberty  to the parties to amend their respective pleadings, and to adduce further  evidence. The other appeal is preferred by the appellant against the order  passed by the High Court dismissing her review petition by order dated  7.8.2001.                                                                          ...2/-

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       It is not necessary for us to refer to the facts in detail in view of the  order we propose to pass.

       The appellant filed a suit for eviction being Suit No.429 of 1984  against the respondent which was tried by the Second Court of Learned Munsif  at Alipore. Eviction was sought on the ground of reasonable requirement and  bona fide need of the appellant of the premises occupied by the respondent on  the ground floor of the building owned by the appellant. The appellant is in  occupation of the third and fourth floors of the building. According to her, she  required the premises on the ground floor on account of her health condition,  she having suffered an accident.

       By judgment and order dated 12.12.1998 the Trial Court dismissed  the suit. Against the order dismissing the suit the appellant preferred an appeal  being T.A. No.15 of 1989 which was ultimately disposed of by the 7th Court of  Learned Additional District Judge at Alipore. By judgment and order dated  23.11.1990 the appeal was allowed, the suit was decreed and an order for  eviction was passed against  

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the respondent on the ground that the appellant had established her plea of bona  fide personal need.

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       The Second Appeal was preferred by the respondent before the High  Court which was registered as Second Appeal  No.415 of 1991. The Second Appeal finally came up for hearing before a  learned Judge of High Court of Calcutta and by impugned judgment and order  dated 28.7.1998 the Second Appeal was allowed and the matter remanded to  the Trial Court as earlier noticed.

       The submission urged on behalf of the appellant before us is that  there was really no question of law which arose for consideration of the High  Court. The finding of fact recorded by the Appellate Court as regards the bona  fide personal need of the appellant was supported by evidence on record and  therefore, there was no justification for the High Court to set aside that finding.  In any event, it was submitted, there was no justification for an amendment of  the pleadings and recording of further evidence in view of the fact that the  matters sought to be                                                  ...4/-

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brought on record by way of amendment and additional evidence were already  before the Court and what was described as future developments were facts  within the knowledge of the parties. We need not refer to the merit of the  submissions urged before us by learned Counsel for the appellant. However,  we notice that the High Court before disposing of the Second Appeal did not  frame the substantial question of law as required by Section 100 of Code of  Civil Procedure. Sub-section 4 of Section 100 CPC mandates that where the  High Court is satisfied that a substantial question of law is involved in any case  it shall formulate that question. The appeal shall then be heard on the question  so formulated leaving it open to the respondent to argue that the case does not  involve such question. No doubt the proviso to Section 100 CPC does not take  away the power of the Court to hear, for  reasons to be recorded, the appeal on  any other substantial question of law not formulated by it, if it is satisfied that  the case involves such question. In the instant case the learned Judge has not  formulated any question of law which require determination under Section 100  CPC. This Court in  

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a series of decisions has insisted upon compliance with the mandatory  requirement of Sub-section 4 of Section 100 CPC.

       In these circumstances we set aside the judgment and order of the  High Court and remit the matter to the High Court to dispose of the Second  Appeal in accordance with law after complying with the requirement of Sub- section 4 of Section 100.

       It will be open to the respondent to contend that a substantial  question of law is involved in the second appeal, and for the appellant to  controvert that plea. Nothing said in this order should be construed as an  expression of opinion on the merit of the case so as to prejudice the case of the  parties.

       We notice that this suit was filed in the year 1984 on the ground of  bona fide personal need and therefore, it merits a quick disposal. We have no  doubt that the High Court will, keeping in view the necessity and compulsions  of the appellant, dispose of the Second Appeal as soon as  

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possible. These appeals are accordingly, allowed with no order as to costs.

       Since we are setting aside the judgment passed in the Second Appeal,  the order passed in the Review Petition is also set aside.  26639