Availability Of Suitable Alternative Accommodation Must Be Ascertained For Just Decision In Eviction Suits: Calcutta High Court

The High Court of Calcutta in its recent judgment held that “availability of suitable alternative accommodation has to be ascertained for a just decision of a suit for eviction on the sole ground of reasonable requirement.”

Justice Bibhas Ranjan De, presiding over the case, observed, “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.”

The above judgment was delivered while allowing a petition that challenged the order passed by the Civil Judge, whereby he had refused the request for a local inspection by an advocate under Order 39, Rule 7 of the Code of Civil Procedure (CPC).

The plaintiff (opposite party) filed a suit for eviction on the grounds of reasonable requirement. The plaintiff (opposite party) pleaded for available accommodation to the plaintiff and his family members and also pleaded that there was no other alternative suitable accommodation. The defendant/petitioner herein 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 allowed the amendment application but refused to allow further inspection.

The counsel appearing on behalf of the Petitioner submitted that the Judge erred in passing the order of rejection of the application under Order 39 Rule 7 of the CPC only on the ground of earlier inspection held at the instance of the opposite party /plaintiff.

The counsel appearing on behalf of the Respondent submitted that the suit room is situated on the ground floor facing the road which is required for initiating business by one of the members of the plaintiff's family. He argued that the suit was filed for eviction on the grounds of requirement for the purpose of business and not for residential purposes.

The court noted that the sole ground for eviction is a reasonable requirement of the family members of the plaintiff who has no other suitable alternative accommodation. The requirement on the ground of 'commercial purpose' has not been pleaded anywhere in the revised plaint. Such a 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.

The Court observed, “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 High Court, thus, allowing the petition, set aside the impugned order rejecting the application under Order 39 Rule 7 of the CPC.

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

LL Citation:

Case No.: C.O. 2379 of 2022

Advocate for the Petitioner: Mr. Siva Prosad Ghosh

Advocate for the Respondent: Mr. Gautam Das

Click Here To Read Judgment