Mira Chakraborty v. Amritalal Mukherjee — 1990 DIGILAW 337 (CAL)

JUDGMENT Bhattacharjee, J. 1. The plaintiff-landlord sued the defendants-tenants for ejectment on the grounds that he reasonably required he suit-premises for further accommodation of himself and other members of his family and that the defendants also defaulted in payment of rents for the premises. As to the claim for ejectment on the ground or default, the same was negatived by the trial Court in view of the defendants having complied with the provisions of Sections 17(1) & 2 of the West Bengal Premises Tenancy Act, 1936 and not having obtained any such relief on any previous occassion under Section 17(4) of the Act. As to the claim for eviction on the ground of reasonable requirement for own occupation, the same was denied on the ground that it was not specifically pleaded that the plaintiff was not in possession of any reasonable suitable accommodation. According to the trial Court, such "specific recital" in the plaint "is mandatory and without such specific plea in the pleading, the plaintiff's suit cannot succeed". The plaintiff preferred this appeal to this Court and when the appeal came up for hearing, the plaintiff prayed for leave to amend the plaint to insert the averment that he is not in possession of any reasonably suitable accommodation. By order dated 13.5.85, the prayer for amendment was allowed and the defendants-respondents were given liberty to file additional written statement, an Additional Issue was framed, namely, "has the plaintiff any other reasonably suitable accommodation in his possession", and the said Issue was remitted to the trial Court for trial on additional evidence The trial Court has tried the said Issue and has returned the evidence and its findings thereon together with the reasons therefor. The findings of the trial Court are in favour of the appellant-plaintiff and are to the effect that the plaintiff is not in possession of any other reasonably suitable accommodation. 2. Under the provisions of clause (f) of Section 13(1) of the Premises Tenancy Act, as it stand before the Amendment of 1969, before decreeing a suit for eviction instituted by the owner-plaintiff, the Court was required to be satisfied that both the ownership of the plaintiff and also his reasonable requirement for the premises for his own occupation were proved. Under the provisions of clause (f) of Section 13(1) of the Premises Tenancy Act, as it stand before the Amendment of 1969, before decreeing a suit for eviction instituted by the owner-plaintiff, the Court was required to be satisfied that both the ownership of the plaintiff and also his reasonable requirement for the premises for his own occupation were proved. A Court could not obviously be satisfied as to the reasonableness of plaintiff's requirement for the suit-premises for his own occupation unless it was also satisfied that the plaintiff was not in possession of any reasonably suitable accommodation. If the plaintiff was already in possession of any reasonably suitable accommodation for his own occupation, he could not be regarded to reasonably require the premises in the occupation of the tenant. The incorporation of the words in the new clause (ff) to the effect that the landlord “is not in possession of any reasonably suitable accommodation" has only made explicit what was already obviously implicit in clause (f) as it stood before. But the express insertion of these words has, however, given rise to a rather widely accepted general impression that the plaintiff must plead as well as prove that he is not in possession of any reasonably suitable accommodation. The impression, In our view, is wholly erroneous and a suit can never fail solely on the ground as held by the trial Court before remand, that the plaintiff has not specifically pleaded that he is not in possession of any reasonably suitable accommodation. It is also not wholly correct to state that the plaintiff must prove reasonable requirement or want of reasonably suitable accommodation. The burdwn of proof is undoubtedly on him in the sense as provided in Section 102 of the Evidence Act, as the suit would-fail if no evidence is adduced by any of the parties. But even if the plaintiff fails to make out a case on the evidence adduced by him, but a case for eviction is made out by the defendant’s own pleading or the evidence adduced on his side, the suit has got to be decreed. But even if the plaintiff fails to make out a case on the evidence adduced by him, but a case for eviction is made out by the defendant’s own pleading or the evidence adduced on his side, the suit has got to be decreed. So the proposition that the plaintiff must plead and prove his reasonable requirement and want of reasonably suitable accommodation is very often too broad a statement and has all the vices of over-simplification and the correct proposition would be that the Court must be satisfied on the evidence on record, however and by whomsoever adduced, that the plaintiff’s reasonable requirement and want of suitable accommodation have been proved. 3. A practice has grown up for allowing amendments of plaint at the appellate stage solely on the ground that the plaint does not contain the averment as to the plaintiff's not being in possession or a reasonably suitable accommodation and then to frame an additional issue to that effect and to refer the same to the trial Court for trial. The practice bas gained ground as a result of misreading and misappropriation of the judgment of the Supreme Court in (i) B. Banerjee v. Anita Pan, ( AIR 1975 SC 1146 ). 4. As I had occasion to point out in (2) Bedana Debi v. Abdul Jawab, (1986 Calcutta High Court Notes 92 at 101 -102), such an amendment is not to be allowed as a matter of easy insouciance and without any proper advertance to its real necessity for the proper determination of the dispute. If in a given case, on the materials on record the plaintiff-landlord cannot make out a case for reasonable requirement for own occupation, even assuming that he has pleaded and proved that he is not in possession of a reasonably suitable accommodation, then the plaintiff cannot be granted the leave to amend his plaint only to formally insert such averment. The again, if in a given case, even though the plaintiff did not or could not make such averment, the defendant nevertheless pleaded that the plaintiff was in possession of a reasonably suitable accommodation and the matter was accordingly investigated by the trial Court on the evidence adduced by both the parties for the purpose, the plaintiff cannot be allowed to claim amendment solely on the ground that the averment was not duly articulated in his plaint. We have no doubt that granting leave to amend in such cases would not only be entirely purposeless and an idle formality, but would rather amount to abuse of legal process. 5. We have adverted to this aspect for some reason. It is true that, as pointed out, among others, in the decision of the Supreme Court in (3) Gogula Gurumurthy ( AIR 1974 SC 1702 ), when a finding is called for from the Court below on certain issue framed by the appellate Court, the appeal is not disposed of either in whole or in part and the parties cannot be barred from arguing the whole appeal after the findings are received back from the trial Court. After an Issue, framed by the appellate Court and referred for trial to the trial Court, is tried by that Court and the evidence and the findings thereon are received back, the appellate Court is to bear the entire appeal and not merely that issue so framed and sent down and the evidence and the findings thereon. But where, as here, the appellate Court framed and referred for trial an issue as to whether the plaintiff was in possession of a reasonably suitable accommodation, it may be taken to be implicit that, but for a finding on that issue, the appellate Court found a case for reasonable requirement for own occupation to have been made out by the plaintiff. 6. Under Rule 25, Order 41, an appellate Court is to frame and refer back an issue to the Court below only when the same "appears to the appellate Court essential to the right decision of the suit on merits". We do not think that the appellate Court should indulge in futile exercise in allowing the parties to amend the pleadings and frame and refer back for trial an issue on the question as to the plaintiff's being in possession of reasonably suitable accommodation, when, even if that issue ill decided in favour of the plaintiff, he would not, on the other evidence already on record, be able to substantiate his requirement for further accommodation. In the order dated 13.8.88, framing and remitting the issue in question, this Court observed that “It is necessary and essential for the proper decision of the suit on merits” that the said issue be decided. 7. In the order dated 13.8.88, framing and remitting the issue in question, this Court observed that “It is necessary and essential for the proper decision of the suit on merits” that the said issue be decided. 7. Be that as it may, we have heard, as we must, the entire appeal along with the additional evidence and the findings thereon and we are satisfied that the plaintiff has been able to make out a case that he reasonably requires the suit-premises for his own occupation and that he is not in possession of any other reasonably suitable accommodation. The evidence as to the number of the members of the plaintiff's family, their age, occupation and other related matters have stood absolutely unshaken and even the denial of the defendants in the written statement on this score is absolutely evasive. The fact that an ejectment decree has already been passed and affirmed in appeal in respect of the premises at Gray Street, where the plaintiff used to reside formerly, has also been fully proved. The report of the Advocate Commissioner appointed to inspect the premises, Ext. 10, is satisfactorily detailed along with a sketch Map and fully supports the plaintiff's case. Not only no objection was filed to this Report, but even the Commissioner, figuring as a witness, was not at all cross-examined. A scrutiny of the evidence on record leaves no room for doubt that the plaintiff bas proved that he reasonably requires the entire suit-premises in the occupation of the defendant and thus no question of partial eviction would arise for consideration. We would accordingly allow the appeal and decree the suit. 8. We must note that the original plaintiff having died during the pendency of the appeal, the present appellants have been substituted in his place and stead. The reference, therefore, in our judgment to the plaintiff or the appellant must be construed to refer to the present substituted plaintiffs and appellants and the suit giving rise to this appeal shall stand decreed in their favour. The appeal is thus allowed and the suit for recovery of possession of the suit-premises and for mesne profits and costs shall stand decreed in favour of the present appellants/plaintiffs who would obviously be entitled to such mesne profits as would be determined by the Court below in accordance with law. The appeal is thus allowed and the suit for recovery of possession of the suit-premises and for mesne profits and costs shall stand decreed in favour of the present appellants/plaintiffs who would obviously be entitled to such mesne profits as would be determined by the Court below in accordance with law. The defendants-respondents shall be allowed time till the expiry of December, 1990, provided they undertake in writing in the Court below within a month from this date to vacate the suit premises within December, 1990. On their failure to give such undertaking or to act in accordance therewith the decree would at once become executable. No order as to costs in this appeal. Nayak, J.: I agree.