VITTAL BHAI PATEL v. PUSPA DEVI — 1989 DIGILAW 371 (CAL)

L. M. GHOSH, J. ( 1 ) EJECTMENT Suit No. 142 of 1978 was filed in the 6th Court of the City Civil Court, Calcutta for ejectment of the defendant-tenant on the sole ground of reasonable requirement. The plaintiff also referred to a notice to quit dated 24-11-77. The plaintiff stated that her family consisted of three sons and grandchildren. Elaborating further, the plaintiff stated that two of her sons were married and her eldest had three daughters, aged between 4 years and 11 years, all of them school students. The other married son of the plaintiff, as stated originally in the plaint, got one son who was taken 2 years old. Then again, the plaintiff referred to the fact that another son of the plaintiff had attained marriageable age and. he could not be given in marriage for want of accommodation. The plaintiff was in occupation of one interconnected room and a room, kitchen room and, three asbestos sheds and a tin shed, as per the plaint. ( 2 ) BY a subsequent amendment, the plaintiff averred that she was not in possession of reasonable suitable accommodation and the accommodation available for her on the first floor was not reasonably suitable for the purpose. ( 3 ) THE defendant, in his written statement, denied all the material allegations of the plaintiff. In paragraph 5 of the written statement, it was: pleaded that the plaintiff got other reasonably suitable accommodation for her family in the suit premises. He took the stand that the present accommodation of the plaintiff was reasonably sufficient, but that the suit was filed to compel the defendant to agree to an enhancement of rent. ( 4 ) ON 15-5-81, the defendant examined himself and conveyed that he was agreeable to vacate the suit premises provided he was given six months time to vacate. But ultimately, the defendant did not accept that position and it was submitted that argument for the defendant would be advanced on legal point. In that position, the plaintiff pressed for full trial. Accordingly, evidence was led on behalf of the plaintiff. P. W. 1, a son of the plaintiff, was the first witness. The other witness for the plaintiff was the Advocate Commissioner. On behalf of the defendant, two witnesses, including the defendant, were examined. In that position, the plaintiff pressed for full trial. Accordingly, evidence was led on behalf of the plaintiff. P. W. 1, a son of the plaintiff, was the first witness. The other witness for the plaintiff was the Advocate Commissioner. On behalf of the defendant, two witnesses, including the defendant, were examined. ( 5 ) ON a consideration of the materials, oral and documentary, the learned trial court came to the finding that the plaintiff proved her case of reasonable requirement. On that basis, the learned trial court decreed the suit. ( 6 ) AGAINST that judgment and decree, the defendant has preferred this appeal. ( 7 ) MR. Lahiri, the learned Advocate appearing for the defendant-appellant, has argued that the plaintiff's requirement has not been proved. He has also referred to a subsequent event and it is that some time after the passing of the decree, one of the sons of the plaintiff, Bharat Bhushan, left the premises of the plaintiff and took a rented flat elsewhere. Mr. Lahiri submits that the court is to take note of the subsequent event and pass appropriate order after evaluating the elect of the factor. ( 8 ) MR. Roychowdhury, the learned Advocate appearing for the respondent has contended that a mere consideration of the physical situation and the family members of the plaintiff at present, would convince the court that the requirement of the plaintiff is indeed genuine. As to the subsequent event referred to, Mr. Roy Chowdhury has contended that Bharat Bhushan was forced to leave the premises where the plaintiff was residing because of want of accommodation and that he would rejoin, if suitable accommodation was found in the same house, that is, 10, Sagar Gutta Lane. ( 9 ) THIS is now the entire situation and there is very little law point involved. We have to take note of objective factors, namely, the accommodation available to the plaintiff on the first floor of premises No. 10, Sagar Dutta Lane and the present position as to her family members. It may be pointed out that after evidence was led by the parties there was some change. The second son of the plaintiff was then not married any by now he has got himself married and has got one child. It may be pointed out that after evidence was led by the parties there was some change. The second son of the plaintiff was then not married any by now he has got himself married and has got one child. P. W. 1 had, on the date he was deposing, four children, although on the date the suit was filed he had three children. The family is fast expanding as is seen. In this case, there was a local inspection and Ext. 6 is the report of the Advocate Commissioners. From the plan attached to the report, it appears that there are particularly three living rooms. They are room Nos. 1, 2 and 4. As per evidence of P. W. 1, he has been residing in room No. 4, which has an asbestos shed. Room No. 2 has been partitioned and the truncated portion has been marked room No. 2a in the Commissioner's plan. So even if these two rooms, room No. 2 and 2a, be considered separate rooms, altogether we get four living rooms. Room No. 3 is too small. Besides, there are some other rooms, box rooms, etc. , which cannot be called living rooms. At the same, it is to be noted that one of the sons, Bharat Bhusan has shifted to a rented house and has been paying Rs. 169 per month. It is true that the court should and, in most cases must, take note of subsequent events. But in so doing, the court must consider the entire context and the circumstances prevailing. If the plaintiff's san was compelled to vacate the premises at 1a, Sagar Dutta Road, that would not go against the plaintiff, because that would be a case of distress shifting. In the affidavit-in-opposition by the plaintiff, it is clearly set out that if the plaintiff got back possession of the said two rooms in her house, then there is every possibility of Bharat Bhusan's coming over to her house. P. W. 1 has given an account of the requirement. He has stated that the ground floor of the house is tenanted. The defendant has not taken steps, except examining one D. W. 2, for ascertaining that there are some vacant rooms on the ground floor, as alleged. Then this P. W. 1 has also explained about the position of the rooms, with reference to the size of the family. He has stated that the ground floor of the house is tenanted. The defendant has not taken steps, except examining one D. W. 2, for ascertaining that there are some vacant rooms on the ground floor, as alleged. Then this P. W. 1 has also explained about the position of the rooms, with reference to the size of the family. Indeed, it is noticable that the plaintiff's demand then for some additional accommodation was not unreasonable. As per evidence of P. W. 1, he was residing in room No. 4 with his wife, even though it was having an asbestos shed. The plaintiff herself was residing in room No. 1. Then the second son of the plaintiff had to be accommodated. Bharat Bhushan required another room, but he has shifted for the present to a rented house. Even then, accommodation has to be found for the grandchildren of the plaintiff, growing in number and growing in age also. This is the reality of the situation. Even on the basis of the position just now, we notice that although one of the sons had shifted to a rented house, another son has married and has got a child and the eldest son has also got one more child. Thus, even after shifting of Bharat Bhushan, the position remains the same. And, in addition, we have to notice the reality of the situation and it is that the family is ever expanding this is not a question of remote future or speculation, but the day to day reality of the situation. Moreover, we cannot say, as argued by the learned Advocate for the appellant, that Bharat Bhushan never intended to come back to the suit premises. In paragraph 4 of the affidavit-in-opposition, it is clearly set out that if Bharat Bhushan could come back to 10, Sagar Dutta. Lane, he could save Rs. 169 per month. ( 10 ) ON behalf of the defendant, two witnesses were examined. D. W. 1 is the defendant himself. This D. W;1 has gone so far as to say that the plaintiff has three rooms in her possession on the ground floor. But he did not file any petition before the learned Commissioner for showing these three rooms on the ground floor which he alleged were in occupation of the plaintiff. D. W. 1 is the defendant himself. This D. W;1 has gone so far as to say that the plaintiff has three rooms in her possession on the ground floor. But he did not file any petition before the learned Commissioner for showing these three rooms on the ground floor which he alleged were in occupation of the plaintiff. He has admitted that one room on the ground floor is on the roadside and some times that room is used for office purposes and sometimes it is closed. There are two rooms by the side of the staircase, as admitted by D. W. 1. There also, D. W. 1 answers that sometimes these two rooms are used for office purposes and sometimes they are closed. Then, according, to D. W. 1, there are two other rooms in the ground floor and Sudhir Dasgupta lives in one room, while the other room is vacant. Now, if this account of D. W. 1 is accepted, we get that there is only one vacant room on the ground floor. But the case of the defendant has been that there are three vacant rooms. The defendant is coming with inconsistent cases. D. W. 2, a stray witness, has also come forward to bolster up the defence case that there are three vacant rooms on the ground floor. However, the defendant did not take steps to find out the actual position with regard to the ground floor and, in fact, abandoned the case with regard to that first floor. The plaintiff has consistently maintained that all the four rooms on the ground floor are let out to tenants and there are no more rooms. The defendant's case, however, is changing from time to time. Therefore, the case of the defendant with regard to the ground floor goes and as a matter of fact, that point has not been seriously argued during the hearing of the appeal. ( 11 ) WE then again are confined to the accommodation available on the first floor. Having discussed the entire matter already, we are of the view that the plaintiff's requirement cannot be described as unreasonable. In this connection, once again, the defendant's conduct may be considered, although the case cannot be decided on mere conduct. At the beginning, he stated on oath that he would vacate the suit premises if six months time was given. Having discussed the entire matter already, we are of the view that the plaintiff's requirement cannot be described as unreasonable. In this connection, once again, the defendant's conduct may be considered, although the case cannot be decided on mere conduct. At the beginning, he stated on oath that he would vacate the suit premises if six months time was given. Later on, he changed his views. No doubt, the court cannot grant a decree unless the grounds enumerated in Section 13 of the West Bengal Premises Tenancy Act are established. But while considering the grounds and evaluating the evidence led on both sides in that respect, the conduct of the parties may have a hearing. We feel that the evidence led by the plaintiff as to requirement is quite acceptable. The plaintiff has proved her reasonable requirement. We find no ground to interfere with the judgment and decree of the learned court below. ( 12 ) WE dismiss the appeal. The judgment and the decree of the learned trial court are hereby affirmed. The defendant appellant, however, is given time to vacate the suit premises by the expiry of the current year, that is by the 31st of December, 1989, on condition that he would go on paying the amount equivalent to rent month to month to the plaintiff by the 15th of the month following that in respect of which the same may due, or depositing the same amount within the same stipulated time in the trail court, in case of refusal by the plaint' to accept the money. If the defendant appellant deposits the amount in the trial court month to month, the plaintiff landlord would be entitled to withdraw the same without furnishing any security. In case of any default, the decree shall become executable at once. We make no order for costs of this appeal. Sunil Kumar Guin, J. , I agree. Appeal dismissed.