Learned counsel for the respondent seeks leave of the Court to
withdraw application for impleadment of the State of West Bengal as party
respondent. I.A. No. 2 is dismissed as withdrawn.
Leave granted.
This appeal is directed against the judgment and order dated
13.12.2006 passed by a Division Bench of the High Court of Calcutta in First Appeal
No.204/2004 whereby and whereunder,the judgment and decree passed by the Court
below was set aside and the matter was remanded to the trial Court for adduction of
fresh evidence, inter alia, on the premise that the question as to whether the rights of
the defendant as a tikha tenant in terms of the lease of 1950 stood extinguished in
view of the execution of the fresh lease of 1966, further evidence would be necessary
for the purpose of a proper adjudication.
Such a finding, as has rightly been contended by Mr. Lalit,
learned senior counsel appearing on behalf of the appellant, does not satisfy the tests
laid down under Order XLI Rule-23 A of the Code of Civil Procedure.
The High Court in its judgment did not say that a re-trial was
necessary. As indicated hereinbefore one of the issues in the suit was purported
extinguishment of
the tikha tenancy. For the adjudication of the said issue, the parties had adduced
evidence. Whether such evidence is sufficient for the purpose of determination of the issue is a question which was required to be considered by the High Court itself. We
may,furthermore, notice that the respondent had filed a large number of documents
before us in support of its case. The said documents, admittedly, had not been filed
before the trial Court. Proper course, thus, which could have been resorted to by the
respondent, therefor was to file an application for adduction of additional evidence in
terms of Order XLI Rule 27 of C.P.C. Had such an application was filed, it was for
the High Court alone to consider as to whether such evidence should be allowed or
not.
The said procedure having not been taken recourse to, we
would not be in a position to determine the issues between the parties finally at this
stage.
We, therefore, set aside the impugned judgment and remit the
matter to the High Court for consideration of the appeal afresh on merit.
In the event, the respondent files an application for adduction of
additional evidence, the same may be considered on its own merits. We would request
the High Court to consider the desirability of disposing of the matter as expeditiously
as possible preferably within a period of three months from the date of
communication of this order.
The appeal is allowed with the aforementioned observations and
directions.
[S.B. SINHA]
[CYRIAC JOSEPH] New Delhi, July 16, 2008.