INDO SWISS TRADING CO. (P) LTD v. SUDHARANI SARKAR
1990-08-14
S.K.MUKHERJEE
body1990
DigiLaw.ai
S. K. MOOKHERJEE, J. ( 1 ) THIS Second Appeal is at the instance of the defendant and is directed against a judgment of reversal. ( 2 ) THE respondents plaintiffs instituted a suit for eviction of the appellant-defendant on the ground of reasonable requirement for own use and occupation and for building and rebuilding. The learned Munsif dismissed the suit and such decree of dismissal had been reversed by the lower appellate court, which decreed the suit substantially upon a finding that the plaintiffs had proved the case of reasonable requirement for their own use and occupation and occupation of their family and the requirement for building and rebuilding through additions and alterations was only to create some more living, space and as such was an extension of the ground of reasonable requirement. ( 3 ) REGARDING the ground of reasonable requirement for building and rebuilding, the trial court came to the conclusion that the plaintiffs had prepared estimate, had submitted plan before the Corporation for sanction and had sufficient means but they failed to prove that the proposed work of building and rebuilding could not be done without evicting the tenant. The lower appellate court, as already indicated, approached the case with a view that the main ground for eviction was one under section 13 (1) (ff) of the West Bengal Premises Tenancy Act and section 13 (1) (f) was not invoked by the plaintiffs as an independent ground but one which was an extension of the ground under section 13 (1) (ff ). In other words, according to the lower appellate court, the plaintiffs wanted to satisfy the reasonable requirement by making additions and alterations to the suit premises after getting possession thereof. ( 4 ) MR. Sengupta, appearing in support of the appeal, has endeavoured to persuade me to hold that upon a proper construction of the pleadings,, it should be hold that the plaintiffs seemed to have prayed for eviction both under section 13 (1) (f) and also 13 (1) (ff) of the West Bengal Premises Tenancy Act. Mr. Sengupta in this connection, has emphasized the contents of the application for amendment, preferred on behalf of the plaintiffs which, according to him, lend support to his suggestion about the suit having been filed on two independent grounds. The evidence, again, according to Mr.
Mr. Sengupta in this connection, has emphasized the contents of the application for amendment, preferred on behalf of the plaintiffs which, according to him, lend support to his suggestion about the suit having been filed on two independent grounds. The evidence, again, according to Mr. Sengupta, indicates that the plaintiffs do not require more than 3 rooms and therefore, building and rebuilding, unless alleged as an independent ground, cannot be treated to be an extension of the ground under section 13 (1) (ff), namely, of reasonable requirement for own use and occupation. Upon a reading of the plaint and the application for amendment, in the context of the evidence of plaintiff No. 2 to the effect that he needs more space for comfortable living as with the passage of time, his sons and daughter are growing, I cannot accept the approach suggested by Mr. Sengupta in support of the appeal as a correct one. In this connection, I would like to add that notwithstanding the bifurcation of the grounds under sub-clauses (f) and (ff) of section 13 (1) of the West Bengal Premises Tenancy Act the guide line laid down by P. N. Mookerjee, J. in Division Bench judgment in the case of Krishna Das vs. Bidhan Chandra reported in 63 CWN page 29 (44) for ascertaining the real nature of the ground on which eviction is sought, still holds good and applies with full force in the facts of the present case. ( 5 ) REGARDING the other ground, which is one under section 13 (1) (ff) of the West Bengal Premises Tenancy Act, namely, reasonable requirement for own use and occupation, the trial court negatived the plaintiff's claim for absence of corroboration with regard to the extent of plaintiff's family. It also declined to accept reasonableness of the claim of requirement as no local inspection was held in respect of the disputed premises to prove the extent of accommodation available therein, which according to it, consequentially rendered impossible for the court to compare the available accommodation in the rented premises, which the plaintiffs were occupying with the one available in the disputed premises.
According to the learned Munsif, again, the plaintiffs failed to prove that they had no reasonably suitable accommodation as the rented accommodation, which was, available to them, was not a precarious one notwithstanding the notice for eviction served by the landlord of that rented accommodation as such notice was not followed up by, institution of any suit for eviction. The lower appellate Court, however, upon consideration of the materials on record, has factually found that the occupation and user of the disputed premises would confer greater benefits from the points of view of expenditure, comfort, convenience, desirability and hygiene. I have, in narrating the aspects of convenience found by, the lower appellate court purposely omitted the aspect of the financial benefits as, Mr. Sengupta has intimated that the tenant is prepared to enhance the rental to Rs. 240/- per month. The findings on the above points by the lower appellate court, to me, do not appear to be perverse or suffering from any absurdity so as to call for interference in Second Appeal. Such finding, again, renders the principles laid down in the case of Sonabati vs. Achyutananda reported in 87 Calwn 278 inapplicable as the disputed premises provides better advantages and has been found to satisfy the needs of the plaintiffs. The comparative advantages also obviate the need of proving the existing accommodation of the plaintiffs as not a reasonably suitable one-in the comparison as under one can't be said to he a reasonable alternative for the other. I do not find much force in the submission of Mr. Sengupta that the comparative inconveniences are merely psychological. Ale evidence on record provides ample materials to factually sustain the inconveniences as found by the lower appellate court. More-over, mere lack of corroboration, without specific contradiction, cannot impair the credit worthiness of the testimony even of a sole witness. ( 6 ) NO doubt, Mr. Sengupta has argued that the plaintiffs did not file any Plan to show the proposed alterations but since I have found in agreement with the lower appellate, court that the ground urged on behalf of the plaintiffs was one under Section 13 (1) (ff) of the West Bengal Premises Tenancy Act, non filing of the Plan cannot be said to be so fatal as to disentitle the plaintiffs to the decree granted by the lower appellate court.
In this connection reference may be made to the case of K. L. Banerjee vs. Rajia Begum, reported in 90 CWN page 39. ( 7 ) FOR the reasons aforesaid, the decree of the lower appellate court has to be sustained. The appeal, therefore, must fail and is hereby dismissed. The judgment and decree of the lower appellate court are affirmed. ( 8 ) THERE will be no order as to costs. ( 9 ) AS prayed for by Mr. Sengupta and after hearing Mr. Chakraborty, I give liberty to the tenant/appellant to continue, in occupation in the disputed premises for a period of six months from this date and direct it to hand over vacant possession to the respondent on expiry of six months provided the appellant files an undertaking before this Court to that effect within six weeks from today and goes on paying or depositing in the trial court the occupation charges month by month as the appellant had been doing so long. In default of compliance with any of the aforesaid conditions, this liberty will stand revoked and the decree shall become executable at once. The amounts, which might be deposited by the appellant, would be withdrawable by the respondents/plaintiffs without furnishing any security. Appeal dismissed.