Golap Maitra v. Biswanath Sarkar — 1986 DIGILAW 452 (CAL)

JUDGMENT This appeal is at the instance of the Plaintiff appellant against the judgment and decree dated December 4, 1982 passed by the learned subordinate Judge, 3rd Court, Howrah, in Title Appeal No. 237 of 1982 reversing the judgment and decree dated June 325, 1982 passed by the learned Munsif, 2nd Court, Howrah, in Title Suit No. 350 of 1980. The plaintiff instituted a suit for eviction and mesne profit. The case of the plaintiff in brief is that the defendant is a tenant in respect of the suit premises at the monthly rental of Rs. 80/- payable according to English Calender Month. That the defendant is defaulter from the month of January, 1980. That the plaintiff with his family at present is living in a rental house known and numbered as No. 108, Kashinath Chatterjee Lane, P.S. Shibpur, District Howrah. Moreover, the said rented house is within the road alignment of Calcutta Metropolitan Development Authority popularly known as C.M.D.A. other contiguous and adjacent lands and buildings in the same line had already been acquired and demolished by the said authority. The plaintiff will be required to leave the said rented house on 24 hours’ notice. The plaintiff required the suit premises also for her own use and occupation as her family members are growing and she has no other suitable accommodation elsewhere. The eviction notice had been given to the defendant and inspite of that he has not vacated the house. Accordingly, the suit was filed. 2. The defendant contested the suit by filing a written statement wherein he denied all the material averments of the plaint and contended, inter alia, that the suit is not maintainable in its present form and that the suit is speculative. The defence case is that the plaintiff has the suitable accommodation. In view of this fact, the plaint case should be dismissed with costs. The following issues were framed by the learned trial Court :– 1. Has the plaintiff any cause of action or right to sue ? 2. Is the suit maintainable in its present form ? 3. Is the suit premises required by the plaintiff for his own use and accupation ? 4. Is the notice of ejectment is legal and valid ? 5. Is the plaintiff entitled to get a decree as prayed for ? 6. To what other relief if any is the plaintiff entitled ? 3. 3. Is the suit premises required by the plaintiff for his own use and accupation ? 4. Is the notice of ejectment is legal and valid ? 5. Is the plaintiff entitled to get a decree as prayed for ? 6. To what other relief if any is the plaintiff entitled ? 3. The learned trial Court on a consideration of the materials on record and the evidence, both oral and documentary found that the plaintiff has proved her reasonable need and her present accommodation is in a precarious condition. The learned trial Judge relying on the principles as enunciated in (1) 54 CWN page 20 that "the landlord is not bound to continue in his residence at rented premises with all the uncertainties of the tenure" reached the findings that the construction of the statute does not prevent the owner of a house from requiring his own house for his own occupation. Further, the learned trial Court come to the finding that as regards the uncertainty of the present accommodation of the plaintiff, Ext. 1 is sufficient to prove that the present accommodation is going to be demolished by the C.M.D.A. Accordingly, the learned trial Court reached his conclusion that the plaintiff has proved her reasonable need in the suit premises. The suit thus succeeded and the judgment and decree was passed in favour of the plaintiff. 4. Against the above judgement and decree of the learned trial Court the defendant preferred an appeal before the learned lower appellate Court and the Court of appeal below came to the finding that there is no evidence on record that the plaintiff requires the suit premises as her present accommodation is not sufficient one nor is there any evidence to show that the plaintiff required the suit premises for her own use and accupation as also for her own growing family members. The learned lower appellate Court further reached the findings that there is no evidence on record that the present premises of the plaintiff "is going be physically acquisitioned by the C.M.D.A". It is further held by the learned lower appellate Court that the principle laid down in 54 CWN at pare 20 (supra) is on different fact as well as on different Act than that of the present fact as case. It is further held by the learned lower appellate Court that the principle laid down in 54 CWN at pare 20 (supra) is on different fact as well as on different Act than that of the present fact as case. To evict a plaintiff from the suit premises, according to the learned lower appellate Court, the plaintiff must comply with the provisions of section 13(1)(ff) of the West Bengal Premises Tenancy Act ("for short" the said Act hereinafter.) 5. It is also the finding of the learned lower appellate Court that there is no evidence on record that the present accommodation of the plaintiff is not reasonably suitable accommodation. The finding was reached by the learned lower appellate Court that the Court cannot rely upon the letter as notice for acquisition of the suit premises by the C.M.DA. Accordingly, the lower appellate Court found and held that the plaintiff failed to prove that "she reasonably requires the suit premises for her own use and occupation" and the learned appellate Court below is not in agreement with the learned Munsif that the plaintiff requires the suit premises for her own use and occupation as she has no suitable accommodation for her own use and occupation as she has no suitable accommodation for the present. With the said observation the learned lower appellate Court allowed the appeal. 6. Mr. Dasgupta in support of the appeal contended that the finding of fact arrived at by the learned lower appellate Court is vitiated on the ground that the finding is reached by ignoring the important and relevant evidence and non-consideration of the relevant evidence involves error of law and the High Court would be within its jurisdiction to set aside a finding. Mr. Dasgupta further sought to fortify his submission by placing reliance on the decision of the Supreme Court in the case of (2) Madan Lal v. Gopi, AIR 1980 SC 1754 . It has been held by the Supreme Court in that case that, where the trial Court and the first appellate Court wholly ignored the weight of preponderating circumstances on the record and allowed their judgments to be influnced by inconsequential matters, the High Court will be justified in reappreciating the evidence and in coming to its own independent conclusions. It is also submitted by Mr. It is also submitted by Mr. Dasgupta that it would not be necessary for this Court in the second appeal stage to appreciate the evidence. It is also contended by Mr. Dasgupta that the determination both factual and legal as reached by the learned lower appellate Court involves inter prepetition of section 13(1)(ff) of the said Act giving rise to a question of law. It is now necessary to embark upon the main thrust of Mr. Dasgupta against the findings of fact reached by the learned first appellate Court that the basic and essential aspects of the matter, as would appear from the evidence both documentary and oral, were either party relied on by the learned lower appellate Court to the exclusion of relevant materials. Mr. Dasgupta contended that the plaintiff emphatically asserted that the required the suit premises for her own use and occupation and for the occupation of her growing family members. It is also the case of the plaintiff as would appear from the evidence of P.W. 2 that the "plaintiff has no other suitable accommodation and the plaintiff resides at 108, Kashinath Chatterjee Lane, Howrah which is a rented premises. This relevant evidence was completely overlooked by the learned lower appellate Court. The learned lower appellate Court also ignored the evidence of Sri Anil Kumar Ganguly (P.W.I) who deposed before the learned trial Court that he is attached to Special Land Acquisition Office, Howrah Improvement Trust under Howrah Collectorate and produced original letter in respect of proposed demolition of Holding No. 108, Kashinath Chatterjee Lane. The said deposition of the P.W.I. remains unchallenged. As the said witness was not put to any cross-examination on the question of the proposed demolition of Holding No. 108, Kashinath Chatterjee Lane, the learned lower appellate Court ought not to have ignored and overlooked the fundamental law that if the deposition of a witness remains unchallenged. Apart from the said deposition, the genuineness and contents of the letter Ext. I was unchallenged. The defendant did not challenge the contents of the Ext. I nor cross-examine the P.W.I on this aspect. The learned lower appellate Court without considering the aforesaid state of things fell into grave error in accepting the case of the defendant. Apart from the said deposition, the genuineness and contents of the letter Ext. I was unchallenged. The defendant did not challenge the contents of the Ext. I nor cross-examine the P.W.I on this aspect. The learned lower appellate Court without considering the aforesaid state of things fell into grave error in accepting the case of the defendant. The learned lower appellate Court also overlooking the evidence of P.W.I that the present accommodation of the plaintiff in 108, Kashi Nath Chatterjee Lane, arrived at the finding that there is no evidence record in which portion of the premises the plaintiff is residing. The evidence of plaintiff No.1 remains completely overlooked as a result whereof, the finding of the learned lower appellate Court to the effect that there is no evidence on record in which portion of the said premises the plaintiff is residing, is wholly unwarranted in law. Mr. Dasgupta in support of his contention submitted that the Court is required to construe section 13(1)(ff) and the whole test is that alternative accommodation available to the landlord in a tenanted house would be the ground for reasonable requirement for use and occupation or whether that could be a bar to the landlord's suit in getting ejectment decree on the ground of reasonable requirement for his own use. It is also the contention of Mr. Dasgupta that the possession of the landlord in the rented premises is somewhat vulnerable on the ground that the tenant is in potential danger of being evicted from the tenanted premises under certain circumstances occuring there or in future, and as such, the possession as a tenant cannot be equited with the possession as a landlord. While advancing the aforesaid contention Mr. Dasgupta placed reliance on a Division Bench decision of this Court in the case of (3) Dr. Haraprosad Biswas v. Bamdeb Roy, as reported in 1977 (2) Cal LJ at rage 19. It is held by this Court that due and proper weight cannot but given to absolute ownership in deciding the question of suitability of an alternative accommodation available in a tenanted premises. In that case their Lordships held that a landlord's claim for eviction of his tenant from the house owned by him cannot be ipso fact defeated by reason of this fact that at the relevant time he had reasonable sufficient accommodation in a tenanted house. Mr. In that case their Lordships held that a landlord's claim for eviction of his tenant from the house owned by him cannot be ipso fact defeated by reason of this fact that at the relevant time he had reasonable sufficient accommodation in a tenanted house. Mr. Dasgupta in his usual fairness referred to the Division Bench decision of this Court the Bench being presided over by the present Chief Justice Chittatosh Mookerjee as reported in (4) 87 CWN 278 in the case of Sonabati Devi and Ors. v. Achyutanand Dey and Anr., Mr. Dasgupta laid emphasis on paragraphs 17, 18, 19 and 20 of the said decision. Mr. Dasgupta while relying on the said decision submitted that the expression reasonably require cannot the genuine present need. Mr. Dasgupta submitted that the case of the plaintiff establishes the genuine present need. It is beyond any shred of doubt that the plaintiff has no other suitable accommodation. She resides in a rented premises and she is fastened with the threatened eviction from the rented premises by reason of the fact that the suit premises has fallen within the alignment of the Second Hooghly Bridge. This fact can neither be overlooked nor brushed aside. Section 13(1)(ff) of the said Act cannot be construed so narrowly to the effect that the landlord would be non-suited on the footing that the need does not exist on the date of the petition. The decisions of the Court of Appeal cited at the bar are clearly distinguishable in the facts of the case. The factual metric and the finding reached by the learned lower appellate Court, in my view, may involve the determination of the question of anticipatory reasonable requirement. A landlord can seek eviction of the tenant anticipating his need for accommodation in foreseeable future. He cannot be non-suited on the ground that his need does not exist as on the date of the suit. My view finds support from the decision reported in (5) AIR 1977 Himachal Pradesh at page 21. The said judgment was delivered by the Hon'ble the Chief Justice R.S. Pathak (as he then was). He cannot be non-suited on the ground that his need does not exist as on the date of the suit. My view finds support from the decision reported in (5) AIR 1977 Himachal Pradesh at page 21. The said judgment was delivered by the Hon'ble the Chief Justice R.S. Pathak (as he then was). It appears from the said decision that on the date the landlord did not require accommodation for himself and the Court held that the contention is completely answered in (6) J.G. Kohli v. The Financial Commissioner, Hariyana, AIR 1976 at page 107 where the Punjab High Court held as follows in paragraph 15 :– "I conclude, therefore, that it is not the requirement of the law that the landlord's need must be immediate and an existing one on the very date of the application for ejectment. Indeed he is entitled to anticipate his requirement in a reasonable foreseeable future. Further, the controller and appellate authority thereto can legitimately-take into consideration any change in the circumstance regarding the requirement or the landlord on the date when the order of ejectment may have to be passed or affirmed." 7. It is an admitted position that the appellant has no other reasonably suitable accommodation and the rental premises where the plaintiff resides is also affected by the Second Hoogly Bridge, as would appear from Ext. 'I'. It is therefore held that Section 13(1)(ff) cannot be construed in such a manner as to find out whether the landlord needs the premises in question immediately. By reason of the imminent and proposed demolition of the holding No. 108, Kashi Nath Chatterjee Lane, the plaintiff is entitled to anticipate her requirement in reasonable foreseeable future. Section 13(1)(ff) cannot be construed narrowly. 8. The learned lower appellate Court failed in construing the scope and effect of section 13(1)(ff) of the said Act. In my view, law does not warrant that the need of Landlord must be immediate and an existing one on the date of application for ejectment. The question of reasonably suitable accommodation may be a question of fact. Still then, in the facts and circumstances of the instant case the learned lower appellate Court on misapplication of the law came to the finding which is infected with grave error and on that count alone the High Court may interfere with the said finding in the second appellate stage. 9. Mr. Still then, in the facts and circumstances of the instant case the learned lower appellate Court on misapplication of the law came to the finding which is infected with grave error and on that count alone the High Court may interfere with the said finding in the second appellate stage. 9. Mr. Das, learned Advocate assisted by Miss Leena Sarkar submits that the finding of the learned lower appellate Court is proper finding based on cogent reason and ground. 10. The finding of the learned lower appellate Court involves the substantial question of law viz. construction of section 13(1)(ff) of the said Act and that being so, this Court at the second appeal at stage is entitled to interfere with the said findings which suffers from basic error of law and other infirmities namely, non-consideration of the relevant materials. In that view of the matter, I hold that the plaintiff appellant is entitled to decree for ejectment under section 13(ff) of the laid Act. 11. In the result, the appeal succeeds and is accordingly allowed. The judgement and decree of the first appellate Court is set aside and that of the trial Court is restored and affirmed. There will be no order as to costs. 12. Mr. Manick Das, learned Advocate for the defendant respondent submitted before me at the time the judgment is being delivered that his client is ready and willing to give an undertaking to this Court to the effect that his client would vacate the suit premises and deliver vacant and peaceful possession thereof to the plaintiff appellant within twenty four hours from the date of demolition of the structures and building at 108, Kashi Nath Chatterjee Lane, Howrah by reason of the State action. Mr. Das further submits that the said undertaking will be filed in this court on or before 16th December, 1986. In default of filing such undertaking within the period as aforesaid, the plaintiff appellant will be entitled to put the decree into execution forthwith. Let the records be sent down immediately.