Bisuna Tewari v. Malati Dutta — 1980 DIGILAW 327 (CAL)

JUDGMENT Chakrabarti, J.: Theses are two appeals at the instance of the same defendant arising out of two suits for eviction being Ejectment Suit Nos. 1609 and 1610 of 1965 of the City Civil Court at Calcutta. Both the suits were decreed by the learned Court of first instance and affirmed by this Court in appeal. The defendant has thereupon preferred the present two appeals. 2. The two tenancies in respect of which the two suits were instituted are put different portions of premises No. 11/B, Ramesh Dutta Street, Calcutta. One of the premises carries a rental of Rs. 100/- per month and the other Rs. 6 per month. The case of the plaintiff in both the suits is that she requires the suits premises for the purpose of building and rebuilding. The plaintiff claimed to have determined both the tenancies by service of notice dated May 5, 1965 requiring the defendant to quit and vacate with the expiry of the month of June, 1965. The defendant not having complied with the notice the plaintiff was obliged to institute the suits. 3. The defendant contested both the suits by tiling written statements. The defence is that the plaintiff is merely a benamdar and not the owner of the premises in suits. The plea of reasonable requirement for purposes of building and rebuilding was denied. The defendant further took a plea that the tenancy in respect of Suit No. 1609 carrying a rental of Rs. 100/- per month is not a tenancy running according to English Calender month. The positive case of the defendant in this regard is that the tenancy commenced on March 10, 1949 and the month of tenancy is from the 10th of a month to the 9th of the .succeeding month according to English Calender. 4. The learned Judge in the City Civil Court having found against the defendant on all the points, decreed both the suits by a common judgment. 5. The defendant preferred appeals to this Court. During the pendency of the appeals the original defendant having died, his heirs were substituted and brought on record. It appears that at the hearing of the appeals to this Court the defendant did not challenge the finding that the plaintiff reasonably required the suit premises and that she has the means to construct the proposed building. During the pendency of the appeals the original defendant having died, his heirs were substituted and brought on record. It appears that at the hearing of the appeals to this Court the defendant did not challenge the finding that the plaintiff reasonably required the suit premises and that she has the means to construct the proposed building. A plea was taken, however, that the plaintiff having purchased the suit premises on July 31, 1963 and having instituted the suit within 3 years from the date of the purchase, the suits were barred in view of the provisions of sub-section (3A) of section 13(1) of the West Bengal Premises Tenancy Act as amended in 1969. It was contended in appeal that the tenancy in respect of the subject-matter of Ejectment Suit No. 1609 ran from 10th of month to the 9th of the succeeding month and as such the notice asking the defendant to vacate with the expiry of the month of June, 1965 was bad in law and insufficient. Those are the two points on which the appeals were fought in this Court. The learned Single Judge relying on a Bench decision of this Court in (1) Kalyani v. Pramila, ILR 1972 (2), Calcutta 660 held that sub-section (3A) in so far as it has been sought to be applied to pending suits and appeals is ultra vires the Constitution and hence it could no longer be urged that the suits though instituted within 3 years from the date of purchase, the suits which were pending at the date of the commencement of the amendment in 1969 were barred. With regard to the other point the learned Judge found that the plaintiff's categorical statement in evidence that the tenancies ran according to English Calender month was not challenged in cross-examination. He found that the rent was all along paid according to English Calender month, although defendant had stated that he had paid rent in that fashion for the sake of convenience only. He found that the rent was all along paid according to English Calender month, although defendant had stated that he had paid rent in that fashion for the sake of convenience only. Upon a reference to the specific case made out in paragraphs 17 and 18 of the written statement, the un-impeached evidence of the plaintiff, and the mode of payment, it was held that the defendent failed to prove that the rent was paid according to English Calender month although the month of tenancy remained the same that is from the 10th of the month to the 9th of the succeeding month. It was found that the defendant held the tenancy under the plaintiff according to English Calender month. In the result the judgment and decree in bath the suits were affirmed and the appeals were dismissed. Being aggrieved the defendant preferred the present appeals. 6. Miss Chaturvedi, appearing in support of the appeals, contended that this Court hearing the Letters Patent appeals could not take evidence after the amendment of the plaints in August, 1976 pursuant to the decision in the case of (2) B. Banerjee v. Anita Pan, reported in AIR 1975 SC 1146 . She also complained that there is no existing building plan under sanction and in force at the present moment and that therefore the plaintiff was not entitled to a decree for possession for the purpose of building and rebuilding on the strength of a sanctioned plan which has since lapsed. Finally, it was contended that the notice in respect of the tenancy being the subject matter of suit No. 1609 was invalid .and insufficient. 7. To take the first point first, Miss Chaturvedi contended by relying upon the decision in the case of (3) Bali Chandra v. Sheodhar Jadav, reported in AIR 1978 SC 1062 that once pleadings are permitted to be amended which bring into focus new or fresh disputed questions of fact which have to be resolved on additional evidence, the function is one of appreciation of evidence more appropriately to be undertaken by the trial court or at the most the first appellate court but not the High Court hearing a second appeal or an appeal under Clause 15 the Letters Patent. Hence it was argued on the authority of this decision that the matter has to be remanded to the lower court 8. Hence it was argued on the authority of this decision that the matter has to be remanded to the lower court 8. It is indeed, true that in this case the plaint has been amended and additional evidence too has been taken. We are, however, unable to accept the contention of Miss Chaturvedi in the facts and circumstances of this case. Ratio of the decision relied on by the appellant is that the Court hearing the second appeal after granting amendment could not take over the function of the trial court or the First Appellate Court and undertake appreciation of evidence and record findings of fact, since this is not a function envisaged by the Code of the Court hearing second appeals under section 100. This fact, in our view, makes the present case distinguishable from the facts of the case under report. That was a case where the Letters Patent appeal were against the decision made in a second appeal disposed of by the High Court. In the context of that it was held that the appellate bench would be subject to the limitation on its power and jurisdiction to appreciate or re-appreciate evidence and to record findings of fact which were never raised before. In the instant case the present Letters Patent appeals are not against a decision made in a second appeal. In these appeals the Court is entitled to, and as a matter of fact has a duty to enter into facts and come to its conclusion of the same. Such an appeal does not stand on the same footing as a Letters Patent appeal from the decision in a second appeal. Consequently the decision relied on by the appellant docs not really assist the defendant. The taking of evidence by this Court in the facts and circumstances of the case and the appreciation of the same is not barred under section 100 of the Code and is not without jurisdiction. 9. Miss Chaturvedi next contended that the building plan on the strength of which the plaintiff succeeded in the Court of the first instance and even later in the first appeal, has since lapsed and is no longer in force and as such could not form the basis of a claim for eviction of the defendant. 9. Miss Chaturvedi next contended that the building plan on the strength of which the plaintiff succeeded in the Court of the first instance and even later in the first appeal, has since lapsed and is no longer in force and as such could not form the basis of a claim for eviction of the defendant. The claim is really under clause (a) of sub-section (1) of section 13 of the West Bengal Premises Tenancy Act. The clause merely provides a ground for eviction namely that the plaintiff reasonably requires the premises for purposes of building or rebuilding or for making thereto substantial additions or alterations which could not be carried out without the premises being vacated. In the instant case there is no dispute that the premises cotains 3 cottas of vacant land and some tin sheds and the constructions cannot be made without evicting the defendant. The plea that the plan has since lapsed appears to be inconsequential although it is a fact that the plaintiff after having obtained the sanction from the Municipality for the construction of the building had it renewed for the maximum term permissible under the law and that thereafter it lapsed in 1976. The law does nowhere provide that in order to succeed in a suit for eviction on the ground mentioned in clause (f) the plaintiff must have a plan in force to prove her case. The requirement of asking for a sanctioned plan is merely a matter of prudence and not a rule of law. It is asked for to satisfy the conscience of the Court that the plaintiff's claim is not mala fide. The sanctioned plan so far as clause (f) is concerned, does not seem to have any other bearing. In the instant case the suits were instituted in 1965. The plaintiff had duly obtained a sanction for the construction of the building. In view of the pendency of the suits and the appeals to this Court the plans were renewed from time to time. The plan has now lapsed in 1976 during the pendency of these two appeals. There is now no question of renewal of the plan but she will have to obtain a fresh sanction. In view of the pendency of the suits and the appeals to this Court the plans were renewed from time to time. The plan has now lapsed in 1976 during the pendency of these two appeals. There is now no question of renewal of the plan but she will have to obtain a fresh sanction. Since the defendant has successfully resisted the claim for all the 15 years and since in view of that the plan has lapsed, the defendant cannot, by taking advantage of the situation contend that the plaintiff's requirement for the purposes of building and rebuilding has ceased. We are unable to hold from the evidence on record that the requirement is not bona fide. 10. It is true that, the plaintiff adduced evidence as to her means more than a decade ago and that the prices and costs of construction has considerably increased during all these years. A question was therefore, raised as to whether she still has the financial capacity to constract the building. On this point evidence was laid before us by both the parties. The plaintiff's husband states in his evidence that about Rs. 1,32,000/- would be required for the reconstruction and that he has the requisite amount available for the purpose in different fixed deposit accounts with different Rinks and in other investments. Sudhangshu Prasad Ganguli, a Civil Engineer was also examined to speak about the estimated costs according to present schedule of rates. He has submitted a report which is Ext. 3A. Having considered his report and the evidence of the plaintiff's husband, we are satisfied that the plaintiff has the means to build upon the suit premises. The evidence of the Engineer examined by the defendant reads as if the cost of construction would come to Rs. 2,35,000/- and odd. He confessed that he made the estimate according to present market rates depending on his experience as a consulting Engineer. He was rather slow in admitting that the rates depended upon by him were not really the rates of the Government schedule of rates prepared by the Public Works Department. The evidence of the defendant is rather inconclusive so far as the question of the estimated costs and the plaintiff's means are concerned. Having thus considered the evidence we find that the plaintiff has the means to construct on the suit premises and she intends to do so. 11. The evidence of the defendant is rather inconclusive so far as the question of the estimated costs and the plaintiff's means are concerned. Having thus considered the evidence we find that the plaintiff has the means to construct on the suit premises and she intends to do so. 11. Now comes the question as to sufficiency and legality of the notice to quit. Before considering the question it may be convenient to bear in mind the case of the defendant in this behalf. The case, has been set out in paragraphs 17 and 18 of the written statement which is reproduced hereunder. "17(a) That after the expiry of the term of the said lease, the defendant has been continuing as a tenant on the same terms as in the said Indenture of lease dated 10.3.49 so that if the tenancy is to be determined it must be determined on the expiry of the anniversary day of the lease or tenancy, i.e. 10th day of a month according 'to English Calender, and in any case, not on the expiry of an English Calender month. (b) that the suit property was the subject-matter of the said Deed of lease dated 10.3.49 and was numbered 11/A, Ramesh Dutta Street, Calcutta, previously and during the time of the said lease. 18. That for the sake of convenience of payment of rent the rent is payable according to English Calender. This is also suggested in the plaint which states nothing contrary to the commencement of the tenancy in question as stated above". 12. The circumstances under which this Deed of lease dated 10.3.49 was executed appear from the recitals contained therein. It appears that from before the Deed of lease, Ext. B, the defendant was a tenant of the identical suit premises. The then landlord instituted a suit for eviction against the tenant which suit was ultimately compromised and the Deed of lease dated 10.3.1949 was executed. The recitals in the document read as if the tenant surrendered the old tenancy and simultaneously the lease was executed, for a term of five years. Apparently there was no actual physical surrender followed by fresh delivery of possession. The defendant continued in possession even after expiry of the term of the lease. 13. Now as regards the month of tenancy, the plaintiff did not say anything in the plaint as to its commencement. Apparently there was no actual physical surrender followed by fresh delivery of possession. The defendant continued in possession even after expiry of the term of the lease. 13. Now as regards the month of tenancy, the plaintiff did not say anything in the plaint as to its commencement. All that is said is that the defendant is a monthly tenant at a rental of Rs. 100/- payable according to English Calender. In his evidence, P. W. 3, the husband of the plaintiff, stated that the defendant was a tenant at a rental of Rs. 100/-per month according to English Calender month. In cross-examination, not a word was put to the witness to suggest that the tenancy was not according to English Calender month, far less that it ran from the 10th of a month to the 9th of the succeeding month. But for the lease dated 10.3.49 the controversy should have rested on this evidence alone. But even though the plaintiff's evidence was not challenged yet the defendant's son came out with the case that the tenancy ran from 10th of a month to 9th of the following month although rent was paid for the sake of convenience according to English Calender month. In cross-examination he stated: "At or after the time of the lease, Ext. B, Smt. Shanti Dutta, Amal Dutta asked me to pay the broken rent of 10th of the first month to the end of that month and. that the rent in future was to be paid according to English Calender month though the tenancy would be from the 10th of a month to the 9th of the following month". "He conceded that he got rent receipts from the previous landlords as also from the plaintiff according to English Calender and also admitted the signature of his father on the reverse of the counterfoils Ext. 10, 10(a). He could not, however, substantiate his evidence by production of any rent receipt to show that during the continuance of the lease, Ext. B, rent was paid according to Calender month. 14. Ext. A is the letter of attornment issued by the vendors of the plaintiff to the original defendant requesting him to pay the monthly rent to the plaintiff on and from the 1st day of August, 1963. 15. B, rent was paid according to Calender month. 14. Ext. A is the letter of attornment issued by the vendors of the plaintiff to the original defendant requesting him to pay the monthly rent to the plaintiff on and from the 1st day of August, 1963. 15. On these facts the learned Judge in the trial court found that the tenancy ran according to English Calender month. In the appeals preferred against the decrees of the trial court the question of validity of the notice on this score, it seems, was the principal point of contest. Two Bench decisions of this Court in the case of (4) Carrara Marble v. Charu Chandra, 61 CWN 407 and (5) Baidyanath v. Nirmalabala, 61 CWN 528 were relied on before the learned single Judge, in support of the contention that the tenancy in this case did not run according to English Calender month. These two cases were also referred to us. In the former case as against the plaintiff's claim that the tenancy ran according to English Calender month, the defence was that the tenancy ran from the 25th of a month to the 24th of the following month. The plaintiff's own case was that the defendant was a tenant holding over, that the month of the tenancy originally was from 25th of a month to 24th of the next month and that there was an alteration of the month of tenancy. The plaintiff relied on the payment and realisation of rent according to English Calender month in proof its case. It was observed in this case that alteration of the month of tenancy may be proved either by direct evidence by proving that the month of tenancy was expressly altered by some arrangement or by circumstantial evidence showing that whereas formerly rent was used to be realised from the middle of one month to the middle of another, subsequently the rent for the broken period of the month was paid or adjusted and rent was paid from month to month according to English Calender. It was further observed that if rent was paid from month to month both during the period when the monthly tenancy ran from the middle of the month and the period when the tenancy coincided with the English Calender month, the mode of realisation of rent alone was indecisive and inconclusive. 16. It was further observed that if rent was paid from month to month both during the period when the monthly tenancy ran from the middle of the month and the period when the tenancy coincided with the English Calender month, the mode of realisation of rent alone was indecisive and inconclusive. 16. In the instant case before us the defendant's case is that the rent for the broken period of the month from the 10th was paid and it was agreed that the rent would henceforth be payable according to English Calender month for the sake of convenience. But there is no conclusive evidence to indicate as to when this arrangement was made. Not a single rent receipt showing payment for the period from 10th to the 9th of the following month could be shown. 17. In the other Case (Baidyanath v. Nirmalabala) also, in spite of the ultimate findings on facts, it has been observed that though not conclusive, the mode of payment and realisation of rent is an important criterion for derermining the month of tenancy. In this connection the case of (6) Kesoram v. Banamali, reported in 45 C. L. J. page 249 may be seen. This decision also takes a somewhat similar view. 18. In this case the learned single Judge, in disposing of the appeals has rightly observed that in any event the onus of proving the arrangement as to payment of rent according to Calender month without alteration of the month of the tenancy was on the defendant, and that the defendant has failed to prove the plea on the evidence on record. In view of the proved circumstances we feel inclined to take the same view. 19. The failure of the defendant to prove the case of an arrangement or agreement to pay according to Calender month without altering the month of tenancy the unchallenged evidence of the plaintiff’s husband that the tenancy ran according to English Calender month and the admitted mode of payment according to English Calender month, all points to the fact that the tenancy did in fact run according to English Calender month. The two Courts below have found so and we have no materials before us to take a contrary view of the matter. 20. The two Courts below have found so and we have no materials before us to take a contrary view of the matter. 20. Such being the position, the notice requiring the defendant to vacate with the expiry of the month of June, must be held to be valid and sufficient, it having coincided with a month of the tenancy. With regard to the other suit, namely, Ejectment Suit No. 1610, there was no dispute as to the month of the tenancy and consequently the sufficiency of validity of the notice determining that tenancy was not challenged before us. The service of the notice has been proved by clear evidence and was not questioned by the appellant. In the result the decree in both the suits are liable to be upheld and affirmed subject to the provisions of section 18A of the West Bengal Premises Tenancy Act. 21. In the result the appeals are dismissed with costs. The plaintiff respondent shall complete the construction within one year from the date of recovery of possession with liberty to apply in the trial court for extension of the period from time to time for good and sufficient reasons. The defendant-appellants are given time till the end of October, 1980, to vacate the premises subject to their continuing to pay or deposit in the trial court a sum equivalent to monthly rent by the 15th of the month next for which it is due. Failing this, the decree shall be at once executable. Leave to appeal under Article 133 of the Constitution, as prayed for by Miss Chaturvedi orally, is refused. Sen, J.: I agree.