Satya Ranjan Ghosh v. Usharani Banerjee — 1984 DIGILAW 75 (CAL)

JUDGMENT 1. This appeal arises out of the judgment and decree passed in Title Appeal No. 215 of 1971 by the learned Subordinate Judge, 6th Court, Alipore, affirming the judgment and decree passed by the learned Munsif, 3rd Court, Sealdah, in Title Suit No. 87 of 1968. The defendant is the appellant in the present appeal and the suit for eviction of the defendant-appellant was instituted by the plaintiff-respondent, Smt. Usharani Banerjee. It appears that in the notice terminating the tenancy and for eviction of the defendant tenant, the plaintiff made out a case of default of payment of rent by the defendant tenant. But in the plaint in addition to the said case for default, the plaintiff also stated that she bona fide required the suit premises for the use and occupation of her son, who was a doctor and who intended to start a chamber for his medical profession. It appears that in the written statement the defendant tenant contended that the plaintiff did not reasonably require the suit premises and there were other rooms in her possession. At the trial an issue being Issue No.4 was raised to the effect "Does the plaintiff reasonably require the suit premises for her own use and occupation?" It appears that the plaintiff had led evidence to show that she had got necessary funds to make renovation of the rooms in occupation of the defendant tenant for the purpose of making it fit for starting a dispensary for her youngest son who was a qualified doctor. The plaintiff had also led evidence to the effect that she had only two rooms in her occupation. The accommodation was insufficient for starting a dispensary for the said son of the plaintiff. The defendant, however, disputed the plaintiff's case that she had two rooms in her occupation but asserted that she had three rooms and the dispensary could be started in the said rooms. 2. The learned trial Judge has come to the finding that the accommodation available to the plaintiff was not sufficient to meet the requirement of the plaintiff, namely, the requirement for a medical dispensary for the said son of the plaintiff. 2. The learned trial Judge has come to the finding that the accommodation available to the plaintiff was not sufficient to meet the requirement of the plaintiff, namely, the requirement for a medical dispensary for the said son of the plaintiff. The learned Judge has also noted that the defendant had admitted in cross-examination that the rooms in the dwelling house of the plaintiff were not vacant and the said rooms were being used and occupied by the members of the plaintiff's family. The learned trial Judge, however, came to the finding that the defendant had deposited rents with the Rent Controller after the institution of the suit under section 17(2) of the West Bengal Premises Tenancy Act and as such he was not a defaulter. In view of the finding of the learned trial Judge that the plaintiff reasonably required the suit premises for her own use and occupation the said suit was decreed. 3. The defendant thereafter preferred an appeal, being Title Appeal No. 215 of 1971 in the Sixth Court of the Subordinate Judge, Alipore. It appears that no objection was raised by the defendant for the framing of the said issue, namely, as to whether or not the plaintiff reasonably required the suit premises for her own use and occupation and as aforesaid the parties led evidence in the suit for the decision of the said issue framed in the suit. In the Memorandum of Appeal no objection was also raised by the defendant that in the pleadings such issue could not be raised. On the contrary, it appears from ground Nos. 4 and 5 that the defendant had contended that it was never the intention of the plaintiff that her son would start dispensary in the suit room but such starting of dispensary could be done in the premises where the plaintiff was residing and there was no urgent necessity to start the dispensary in the said room. In the other ground it was alleged that there was no sufficient money necessary for the renovation of the suit room. The learned Court of Appeal below after considering the evidence and materials on record had accepted the findings made by the learned trial court that the plaintiff had reasonably required the said disputed room for the purpose of starting the medical dispensary for her son. Accordingly, the appeal was dismissed. 4. The learned Court of Appeal below after considering the evidence and materials on record had accepted the findings made by the learned trial court that the plaintiff had reasonably required the said disputed room for the purpose of starting the medical dispensary for her son. Accordingly, the appeal was dismissed. 4. The defendant tenant has therefore, preferred the instant appeal. Mr. Roy, the learned Counsel appearing for the appellant, has contended that after the amendment of the West Bengal Premises Tenancy Act in 1969 it was imperative on the part of the plaintiff to specifically plead that she had reasonably required the suit premises and she had no other alternative accommodation suitable for the purpose for which she had needed the suit room. But in the pleading it was only stated that the plaintiff bona fide required the suit premises for starting a medical dispensary for her son. Mr. Roy has contended that 'bona fide requirement' does not stand at par with 'reasonable requirement' as introduced in the West Bengal Premises Tenancy Act, 1956. He has contended that the Legislature has made a conscious departure from the case of bona fide requirement to the case of reasonable requirement in the West Bengal Premises Tenancy Act, 1956 and mere honest intention to use the suit premises will not enable the landlord to evict the tenant. For the purpose of succeeding to get a decree for eviction of the tenant on the ground of reasonable requirement the landlord must prove that the landlord had a pressing requirement for the disputed premises for her use and occupation and such need cannot be fulfilled by the user of any other alternative accommodation available to the landlord. Mr. Roy has contended that as such specific pleading on the score of reasonable requirement has not been made in the plaint, the plaint case should not have been accepted by the Courts below and the suit should have been dismissed. He has also contended that the plaintiff had sufficient opportunity to amend the plaint and make specific pleading required under the Premises Tenancy Act, 1956. But the plaintiff not having prayed for such amendment, such prayer also should not be allowed at this belated stage. In this connection, Mr. Roy has referred to the decision of the Supreme Court in the case of (1) B. Banerjee v. Anita Pan, reported in AIR 1975 SC 1146 . But the plaintiff not having prayed for such amendment, such prayer also should not be allowed at this belated stage. In this connection, Mr. Roy has referred to the decision of the Supreme Court in the case of (1) B. Banerjee v. Anita Pan, reported in AIR 1975 SC 1146 . The Supreme Court has held in the said decision that it is necessary to plead specific ground for eviction as contemplated in clause (ff) of section 13(1) of the Premises Tenancy Act. Mr. Roy has submitted that as such specific pleading in conformity with section 13(1)(ff) has not been made, the plaint should have been rejected and the suit should have been dismissed by the Courts below. Mr. Roy has also contended that in the notice for eviction which was given by the landlady the ground for eviction on the score of requirement of the suit premises for the use and occupation of the son of the plaintiff was not given and the case of requirement for starting medical dispensary has been introduced for the first time in the plaint. Mr. Roy has contended that although in the notice for termination of tenancy and for instituting a suit far eviction all the grounds for eviction are not required to be pleaded but if the main ground on which the suit has been instituted is not mentioned, the Court must consider the effect of non-mentioning of such important ground in the ejectment notice for the purpose of evaluating the real case of the parties. For this contention he has referred to a Bench decision of this Court made in the case of (2) Biswanath Gupta v. N. K. Tandon, reported in 78 CWN 849. It has been held in the said decision that law does not require the ground of ejectment to be stated either in the notice to quit or in the notice under section 13(6) of the West Bengal Premises Tenancy Act, 1956 but where a landlord proposes to institute a suit for ejectment on the ground which is specified in the notice, his conduct would be a relevant consideration in judging the truth or reasonableness of his case if at the time of the suit he seeks to proceed on a new and different ground. Mr. Mr. Roy has submitted that the defendant has specifically contended that the plaintiff did not require the suit premises for starting the said medical dispensary for her son and the story for medical dispensary was introduced only for the purpose of getting a decree for eviction against the tenant. He has submitted that in the facts of the case, the omission to mention the reasonable requirement of the landlady in the notice should not be lost sight of and in the facts of the case of the defendant should be accepted and the suit should be dismissed. 5. Two applications have also been filed by the tenant appellant before this Court for. taking note of subsequent events during the pendency of the appeal. The first of such application for consideration of subsequent events was made on 29th July, 1979 and it has been stated in the said application that the son of the plaintiff-respondent has accepted an employment in the West Bengal Health Service and at the relevant time he was attached to the Government Hospital at Kalyani and he had also started a Chamber at Madhyagram. Hence the plaintiff did not require the suit room for running the medical dispensary in the suit room. The son of the plaintiff, who is a doctor, has affirmed an affidavit-in-answer to the said contention made by the defendant and has stated that he has a right to resort to private practice while in Government Service and for the said purpose he had to forego certain allowances and privileges according to the Government Rules. He has also contended that after waiting in vain for several years he had to accept the service at Kalyani Hospital and only for one hour he sits in a dispensary with the permission of the owner of the dispensary for private consultation. But he intends to start his medical dispensary if the suit room is made available for the use and occupation. The certificate of the Superintendent of the Hospital has also been annexed to the said affidavit-in-opposition wherefrom it will appear that he is entitled to do private practice beyond hospital duty hours and for getting the said facility the said doctor has not drawn any House Rent Allowance as per Government Order. The certificate of the Superintendent of the Hospital has also been annexed to the said affidavit-in-opposition wherefrom it will appear that he is entitled to do private practice beyond hospital duty hours and for getting the said facility the said doctor has not drawn any House Rent Allowance as per Government Order. The Licence issued under the Drugs and Cosmetics Rule, 1945 in connection with M/s. Sarat Medical Hall has also been annexed for the purpose of showing that the proprietor of Sarat Medical Hall is one Sushil Chandra Sarkar. The other application for taking note of subsequent events has been filed on 17th February, 1984 after this appeal was heard-in-part. It has been contended that the unmarried daughters of the plaintiff have been married during the pendency of the appeal and they have been residing elsewhere and the eldest son of the plaintiff is in employment of the Alloy Steel Plant at Durgapur and he resides at Durgapur with his wife and children. It has, therefore, been stated, that the disputed room is not necessary any further for starting the proposed medical dispensary. 6. After giving my anxious consideration to the facts and circumstances of the case and the submissions made by the learned Counsels for the parties and also the facts and circumstances set out in the two applications for taking into account an subsequent events and the affidavit-in-opposition filed in respect of the first application, it appears to me that although in the plaint it was not specifically stated by the plaintiff that the plaintiff had reasonably required the suit premises for her own use and occupation and she had no suitable alternative accommodation, it was stated in the plaint that she required the suit premises for her son, a doctor, for starting a medical dispensary. It also appears from the written statement that the defendant understood the case of reasonable requirement of the plaintiff and had pleaded that the plaintiff had alternative accommodation in her occupation and the suit room was not required for starting medical dispensary as indicated hereinbefore. An issue was also specifically framed by the trial court as to whether or not the plaintiff reasonably required the suit premises for her own use and occupation and no objection was raised by the defendant. An issue was also specifically framed by the trial court as to whether or not the plaintiff reasonably required the suit premises for her own use and occupation and no objection was raised by the defendant. Parties also led evidence for the purpose of proving the case of reasonable requirement of the suit premises by the plaintiff as understood by the parties and the evidence was led on behalf of the plaintiff that the plaintiff had no sufficient alternative accommodation to meet the requirement of the plaintiff's son to start a medical dispensary and the defendant had cross-examined such witness. In the aforesaid circumstances, I am not inclined to hold that simply because in the plaint it was not specifically stated that the plaintiff reasonably required the suit premises and that she had no suitable alternative accommodation the suit should fail for such lapse. In the facts and circumstances of the case, it is quite evident that the parties understood that the plaintiff had required the suit premises reasonably for the occupation of her son and evidences were led on that score on an issue specifically framed for that purpose. In this connection a reference may be made to a decision of this Court made in the case of (3) Indian S. Accessories. v. Anil, reported in 83 CWN 281. It has been held in the said decision that if the Court was conscious of and considered requirement of clause (ff) of section 13(1) although the plea of not being in possession of reasonably suitable accommodation elsewhere was not pleaded nor plaint was amended to include such a plea in a pending suit, the decree passed on consideration of the relevant facts satisfying the requirement under section 13(1)(ff) of the West Bengal Premises Tenancy Act wag not a nullity. In another decision of this Court made in the case of (4) Abdul Razzak v. Abdul Rahaman, reported in 83 CWN 821, it has also been held that where though no issue was framed, the parties went to trial on full comprehension of any other reasonably suitable accommodation, adduced evidence in support of their respective cases and the lower, courts arrived at their conclusion on consideration of the pleadings and evidence, there was no scope for holding that the decree was not sustainable in law. In the instant case, the specific issue about the reasonable requirement was framed by the Court below and the parties understood the implication of such issue and had led evidence. In the aforesaid circumstances, it cannot be contended that for defect in the pleadings the suit must fail. 7. So far as the applications for taking into consideration of the subsequent facts are concerned, it appears that the plaintiff's son still reasonably requires the suit premises for starting a medical dispensary and it has been specifically stated that for the said purpose he intends to reside in Calcutta. Even assuming that the plaintiff has three rooms in her occupation as contended by the defendant tenant it appears to me that the plaintiff still requires the suit premises for starting the said medical dispensary and for accommodating the plaintiff and her family members. Although the other son is in employment in Durgapur Alloy Steel Plant and the daughters have been married as alleged by the defendant tenant, it cannot be contended that for the members of the family some accommodation will not be necessary whenever they will be coming to meet the plaintiff and other members of the family. Considering the fact that the accommodation available to the plaintiff is a small accommodation, in my view the plaintiff still requires the suit premises reasonably and she has no suitable alternative accommodation. In the aforesaid circumstances no interference is called for in this appeal and the appeal, therefore, fails and is dismissed. There will be no order as to costs.