Amal Chandra Mitra v. Gobinda Basak — 1989 DIGILAW 462 (CAL)

JUDGMENT Yesterday this appeal was taken up for hearing but the Court adjourned the hearing till today on account of absence of the learned Advocate for the respondent. Even today no one is present on behalf of the respondent when the matter is taken up for hearing. This is a very unfortunate state of affairs. Accordingly, I allowed Mr. Tarun Chatterjee, the learned Advocate to proceed with the matter. 2. This appeal arises out of the judgment and decree dated August 11, 1971 passed by the Additional District Judge, 11th Court at Alipore in Title Appeal No. 156 of 1977 reversing those dated December 18, 1976 passed by the Munsif, 1st Court, Sealdah in Title Suit No. 431 of 1974. 3. The plaintiff filed a suit for eviction and for mesne profit. The plaintiff's case, in brief, is as follows : The defendant was a tenant under the plaintiff in respect of the suit premises at a monthly rental of Rs. 150/- payable according to the English Calendar month. The plaintiff resides at Bihar and is the owner of the premises No. 64/35A, Belgachla Road which comprises the suit premises and another flat. Each flat consists of two rooms one lobby, one store room and one kitchen. The plaintiff's family consists of himself, his wife, three sons and two daughters; one of two daughters, is married. The plaintiff is in urgent need of the suit premises for himself and his family as his sons are required to reside at Calcutta to prosecute their further studies in colleges at Calcutta and as the plaintiff has no other suitable accommodation in Calcutta. The tenancy was determined with effect from the expiry of the month of May, 1974 by a combined notice under section 13(6) of the West Bengal Premises Tenancy Act (for short the said Act hereafter) and section 106 of the Transfer of Property Act. 4. The tenancy was determined with effect from the expiry of the month of May, 1974 by a combined notice under section 13(6) of the West Bengal Premises Tenancy Act (for short the said Act hereafter) and section 106 of the Transfer of Property Act. 4. The defendant contested the suit by filing a written statement contending that the tenancy runs from the 16th of a month to the 15th of the following month, that the plaintiff does not require the suit premises for his own use and occupation, that it was agreed that the defendant would not be evicted for a period of 21 years if rents were regularly paid, that the notice not being duly served is invalid, that the suit has been filed out of grudges following refusal of the defendant to accede to the plaintiff's request for enhancement of rent which the defendant was threatened with an action for stoppage of water supply and that in the circumstances the suit is liable to be dismissed with costs. 5. After carefully considering the materials on record and the evidences adduced by the parties and also considering the number of members of the plaintiff's family, the learned Munsif held that the plaintiff requires the suit premises for his own use and occupation and also for the use and occupation of the members of his family including his three sons and one unmarried daughter for their proper education and suitable employment. On the question of service and validity and sufficiency of notice, the learned Munsif answered the issue in the affirmative. On the basis of the findings arrived at by the learned Munsif, the suit was decreed. The learned Munsif while also considered the fact that the plaintiff at the relevant time is in occupation of a tenanted premises to the same locality where one of his married sister and her daughter used to reside on monthly rental of Rs. 300/-, but that the plea of the defendant before the trial Court was negatived on the ground of economic condition. Against the said judgment and decree of the learned Munsif, the defendant preferred an appeal. The First Appellate Court differed with the learned Munsif's findings and allowed the appeal and set aside the judgment and decree of the trial Court. 6. Mr. Against the said judgment and decree of the learned Munsif, the defendant preferred an appeal. The First Appellate Court differed with the learned Munsif's findings and allowed the appeal and set aside the judgment and decree of the trial Court. 6. Mr. Tarun Chatterjee, the learned Advocate appearing in support of the appeal, has contended that the First Appellate Court never considered the actual requirements of the appellant. The appellant has three sons, wife and two daughters one of whom is married. The vacation of the flat of Nityananda Roy, according to Mr. Chatterjee, could not be said to be reasonably suitable accommodation for the plaintiff, if the same is judged from the point of view of number of members of the plaintiff's family. Moreover, the flat of the, said Nityananda Roy consisted of only two rooms, a lobby, one store-room and one kitchen. The First Appellate Court did not consider another aspect, namely, in the tenanted flat then in occupation of the plaintiff, one of his married sisters and his daughter used to reside. The second point raised by Mr. Chatterjee is that the First Appellate Court while considering the application filed by the defendant-respondent for, additional evidence under Order 41, Rule 27 of the Code of Civil Procedure did not allow the plaintiff appellant to file any objection to the same, nor he was allowed to deal with the said additional evidence tendered by the present respondent without giving the appellant an opportunity to deal with the same. The First Appellate Court committed grave error and thereby the Order No. 11, dated August 5, 1977 is wholly infirm in law and the plaintiff appellant can challenge the said order under section 105 of the Code of Civil Procedure. Mr. Chatterjee contended that mere discovery of new evidence subsequent to the decision does not attract the provisions as engrafted under Order 41, Rule 27 of the Code of Civil Procedure. 7. Mr. Chatterjee, the learned Advocate appearing for the appellant further claimed and contended that the expression used in section 13(1)(ff) of the Act is to be considered in the light of the legal perspective that the aforesaid expression "such person" is not in possession of any reasonably suitably accommodation by making reference to and reliance on the decision in the case of (1) Srimati Bibhabati Ghosh v. Panchu Gopal Paul reported in AIR 1989 Calcutta 244. Mr. Mr. Chatterjee while referring to and relying on the said decision submitted that the condition imposed by the aforesaid expression should not be strictly attracted in the facts and circumstances of the present case. The learned Judges in case of Srimati Bibhabati Ghosh v. Panchu Gopal Paul (Supra), held that the aforesaid condition imposed by section 13(1)(ff) of the said Act cannot be strictly attracted to a case where the landlord is already in occupation of a portion of a house and was for eviction of the tenant. 8. If a contrary view according to Mr. Chatterjee is taken, it would lead to a landlord being asked to disrupt the family and to provide accommodation to the members of his family at different places. The First Appellate Court while considering the fact that the appellant now in occupation of a portion of the premises occupied by Nityananda Roy did not take into account the fundamental aspect of the matter. The Appeal Court referred to a decision in case of (2) Bhairab Chandra Nandan v. Ranadhir Chandra Dutta reported in (1988) 1 SCC 383 in case of Sm, Bibhabati Ghosh v. Panchu Gopal Paul (Supra). The view of the learned Judges of the Supreme Court in the aforesaid case was considered by the Appeal Court in the aforesaid decision of this Court. The First Appellate Court did not strictly apply the condition imposed by the aforesaid expression in section 13(1)(ff) of the Act. 9. The contention of Mr. Chatterjee that the First Appellate Court should have considered that the accommodation of the appellant is not reasonably suitable for the reason that vacated portion of the premises now in occupation of the Appellant would not accommodate all the members of the family of the Appellant would have to be provided accommodation at different places. Such being the position the appellant had to reside in tenanted premises where married sister and sisters’s daughter used to reside along with the appellant when be used to stay at Calcutta. Vacation of the eastern portion by Mr. Nityananda Roy, according to the First Appellate Court, does not extinguish reasonably suitable accommodation for the appellant and his members of the family. 10. In my view, the contention of Mr. Chatterjee has much force in it. Vacation of the eastern portion by Mr. Nityananda Roy, according to the First Appellate Court, does not extinguish reasonably suitable accommodation for the appellant and his members of the family. 10. In my view, the contention of Mr. Chatterjee has much force in it. The principles as laid down in Bhairab Chandra v. Randhir Chandra (Supra) were applied by the Appellate Court in the case of Sm. Bibhabati Ghosh v. Panchu Gopal Paul (Supra). 11. Mr. Chatterjee has referred to the aforesaid decision in support of the contention that the First Appellate Court fell into grave error in strictly construing the expression used in section 13(1)(ff) of the said Act. 12. Mr. Chatterjee assailed the order of the First Appellate Court on the ground that the appellant has not given opportunity of filing a written objection to the application for adducing additional evidence under Order XLI, Rule 27 and referred to the decisions in case of (3) Mauji Shah & Another v. Sakaldip Singh & Others reported in AIR 1938 Pat 11 ; (4) Pusuluri Puchamma v. Sankaramanchi Ramasitamma & Another reported in AIR 1954 Mad 191 and (5) State of Madras v. R. Ranganathan Chettiar reported in AIR 1975 Mad 292 at page 296 (para 5). 13. The contention of Mr. Chatterjee on this aspect has substance in it. The First Appellate Court, in my view ought to have given opportunity to the appellant for filing written objections. Admittedly, the said opportunity was denied. That being so, the Order No. 11, dated August 5, 1977 is wholly contrary to law. 14. It is also claimed by Mr. Chatterjee that additional evidences were allowed to be let in without giving an opportunity to the appellant to deal with the same. That order dated August 5, 1977 goes to the root of the matter. It is aha claimed by Mr. Chatterjee that the Court has no doubt power to take additional evidences but that power has to be exercised with great circumspection. The First Appellate Court did not do so. 15. Apart from above, this Court while dealing with the scope of second appellate jurisdiction is required to consider whether any interference is warranted. In my view, the First Appellate Court failed to take into account the materials on record and also fell into error by not allowing the appellant an opportunity to deal with the additional evidence of the defendant. Apart from above, this Court while dealing with the scope of second appellate jurisdiction is required to consider whether any interference is warranted. In my view, the First Appellate Court failed to take into account the materials on record and also fell into error by not allowing the appellant an opportunity to deal with the additional evidence of the defendant. Reference was made to the decision of the Supreme Court in the case of (6) Budwanti & Another v. Gulabehand Prasad reported in AIR 1987 SC 1484 wherein the Supreme Court while dealing with second appeal under sections 100 and 101 of the Code of Civil Procedure held in the manner following :- "Where the trial Court on the basis of evidence before it found that the landlord was in bonafide requirement of the tenanted shop for the business requirement of the members of the joint family but the Appellate Court reversed that finding on baseless assumptions and wrong principles of law, the High Court in second appeal is justified in setting aside the finding of the Appellate Judge even though it was factual in character. It is true that in a second appeal a finding on fact even if erroneous will generally not be disturbed but where it is found that the finding is vitiated by application of wrong tests or on the basis of conjectures and assumptions then a High Court will be will within its rights in setting aside in a second appeal, a patently erroneous finding in order to render justice to the party affected by the erroneous finding." 16. While dealing with this aspect of the matter, the judgment of the First Appellate Court, in my view, studs vitiated by application of wrong tests and on the basis of assumption. The finding of the First Appellate Court suffers from application of wrong tests without having regard to the number of the member of the plaintiff's family. The First Appellate Court ought to have taken into account the number of the members of the plaintiff’s family and their requirement in its factual and legal perspective but that was not done. The finding of the First Appellate Court suffers from application of wrong tests without having regard to the number of the member of the plaintiff's family. The First Appellate Court ought to have taken into account the number of the members of the plaintiff’s family and their requirement in its factual and legal perspective but that was not done. The First Appellate Court also did not consider another aspect of the matter, namely, how two rooms and one lobby and store-room and one kitchen which are similar to those of the eastern portion of the premises vacated by Nityananda Roy, even if allowed to the plaintiff-appellant, cannot be reasonably suitable accommodation for the appellant and his family. The conclusion thus reached by the First Appellate Court is patently founded upon erroneous looting and assumption. It suffers from infirmity and cannot be sustained. 17. The finding of the Court below suffered from infirmity inasmuch as (a) it failed to take into account the full extent of accommodation available to the appellant; (b) the Court below failed to consider the case of the appellant that besides the appellant and his wife and their three sons and unmarried daughter; (c) how members of the appellants family could be compelled to huddle themselves into two rooms and live there without reference to factors of privacy and convenience. 18. Mr. Chatterjee files an application for taking note of the subsequent event, viz. that the appellant has vacated the tenanted premises where he used to reside. This aspect was sought to be urged before this Court by Mr. Chatterjee. In the tenanted portion, the plaintiff's married sister with her daughter used to reside. 19. Apart from above, the judgment of the First Appellate Court itself being contrary to law, it is necessary for this Court to remand the case again for trial in respect of the said subsequent event. Accordingly, no order is passed on the said application. 20. In view of the findings reached above, I do not find any reason to agree with the findings of the First Appellate Court. 21. In the result, this appeal is allowed. The judgment and decree of the First Appellate Court are set aside and those of the trial Court are restored and affirmed. There will be no order as to costs.