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2001 DIGILAW 627 (CAL)

Jagannath Nandan v. Ganesh Pillai

2001-09-25

Joytosh Banerjee

body2001
JUDGMENT Joytosh Banerjee, J. The present appeal from the appellate decree is directed against the judgement dated 26.3.93 passed by the Assistant District Judge, Alipore, 24-Parganas (S) in T.A. No. 158/92 reversing the judgement and decree dated 29th February, 1992 passed by the Munsif, 4th Court, Alipore in T.S. No. 90/83. 2. The facts leading to the present appeal are as follows : The plaintiff/appellant brought the suit for eviction alleging, inter alia, that such plaintiff/ appellant is the owner of the premise No. 68/B, Sambhunath Pandit Street, Calcutta - 25. Wherein the defendant/respondent was a monthly tenant in respect of one room in the ground floor at a rental of Rs. 35/- per month including the electricity charges. The plaintiff alleged that the defendant was a habitual defaulter and defaulted in payment of rent and electric charges since 1975. It was further disclosed that previously plaintiff sued the defendant on the ground of default. But in the said suit being suit No. 118/76 the defendant was adjudged as a first defaulter and he got protection against eviction under section 17(4) of the West Bengal Premises Tenancy Act. On getting such protection the defendant again defaulted for more than 4 months in payment of rent since April 1982. With this allegation, the plaintiff/appellant brought the suit for eviction. Subsequently through an amendment, the plaintiff introduced the case of reasonable requirement for his own use and occupation of the aforesaid suit room by alleging that he was an unemployed person and to maintain his family he carried on a small business of supplying stationery-cum-grocery items to different houses after securing their orders. Plaintiff/appellant intended to open a shop wherefrom he could carryon his business in a better way. Plaintiff submits that the position of the suit room was the only convenient place for his business and he had no other reasonably suitable space wherefrom he could run the business by opening a shop. The plaintiff/appellant brought the suit after sending an ejectment notice by registered post with A.D. which was duly accepted by the defendant/respondent but who fail to vacate the room inspite of the notice. Defendant/ respondent contested the suit by filing a written statement and also an additional written statement denying material allegations raised in the plaint alleging, inter alia, that he was not a defaulter and the plaintiff had no requirement for the suit room as alleged. 3. Defendant/ respondent contested the suit by filing a written statement and also an additional written statement denying material allegations raised in the plaint alleging, inter alia, that he was not a defaulter and the plaintiff had no requirement for the suit room as alleged. 3. On the basis of the aforesaid pleadings, the learned Trial Court raised number of issues including the issues touching the question whether the plaintiff reasonably required the suit premises for his own use and occupation and whether the plaintiff/appellant had any other reasonably suitable accommodation elsewhere or not. In her judgement, the learned Munsif on consideration of the evidence on record found that the defendant/respondent was not a defaulter as alleged and that the plaintiff/appellant required the suit room to carryon his business in a better way. In the appeal through the judgement impugned, the learned appellate court disbelieved that the plaintiff/appellant had any requirement for the suit room as alleged and on such a finding reversed the judgement of the trial court, and dismissed the suit. 4. It transpires from the perusal of the record that the learned Division Bench at the time of admission of the appeal did not formulate any substantial question of law. In that background, at the time of hearing of the appeal the following question has been formulated as the substantial question of law in the present appeal : Whether the findings of the first appellate court are based on conjectures, surmises an inadmissible evidence for which interference from this court is necessary ? 5. While advancing his argument, the learned Counsel for the appellant has pointed out that in coming to the ultimate conclusion on the point of reasonable requirement of the plaintiff/appellant for the suit room, the appellate court below based his decisions on conjectures, surmises and used a wrong yardstick in reaching such decision that the plaintiff had got only desire but not requirement. On the other hand, the learned Counsel for the respondent/defendant has supported the judgment impugned and has pointed out that the whole case on the point of reasonable requirement, of the plaintiff/appellant was not bona fide as the plaintiff introduced the allegation through amendment after it was finally found that the defendant was not a defaulter. 6. On the other hand, the learned Counsel for the respondent/defendant has supported the judgment impugned and has pointed out that the whole case on the point of reasonable requirement, of the plaintiff/appellant was not bona fide as the plaintiff introduced the allegation through amendment after it was finally found that the defendant was not a defaulter. 6. It transpires that the specific case of the plaintiff/appellant on the point of reasonable requirement is that he has got no avocation except that he is a supplier of grocery articles from house to house. But it is not possible now, because of the fact that the plaintiff is now an old man who is not in a position to carryon business of supplying grocery items to different houses and in this background the plaintiff requires the suit room for opening a shop there. The learned appellate court below in the judgement impugned pointed out that the plaintiff/appellant could not produce his cash memo showing the purchase of goods which he would sell by going door to door. He also failed to produce any stock register and none of his customers except P.W.2 came to support his story. He also disbelieved that witness after assigning certain reasons. The learned Advocate for the appellant has submitted that in coming to such a conclusion, the learned appellate court below dealt with the matter in issue in an erroneous way as the words "reasonable requirement" should not have artificially extended so as to make the same extremely difficult for the landlord to get a decree for eviction. In this connection, he has referred to a decision of the Apex Court, in the case of Mst. Bega Begum & Ors. vs. Abdul Ahad Khan (dead)by L.R's. & Ors., reported in AIR 1979 SC 272 . The learned Advocate for the appellant has also referred two decisions of the Apex Court, in the case of Kulwant Kaur vs. Gurdial Singh Mann (dead) by L.R's. & Ors., and Raghunath G. Panhale (dead) by L.R.'s vs. M/s. Chaganlal Sundarji & Co., reported in AIR 2001 SC 1273 and AIR 1999 SC 3864 , to point out that the decision of the appellate court below was clearly erroneous. On the other hand, the learned Advocate for the respondent/defendant has referred the case of Hamida & Ors. vs. Md. On the other hand, the learned Advocate for the respondent/defendant has referred the case of Hamida & Ors. vs. Md. Khalil, reported in AIR 2001 SC 2282 , in support of his contention that the finding recorded by the first appellate court if the same is not perverse or based on no evidence, this Court cannot set aside that finding on re-appreciation of evidence. 7. It transpires from the reported decisions of the Apex Court referred to above that ordinarily it is not open to the High Court in second appeal to interfere with the finding of fact unless such a finding is based on conjectures, surmises or on some evidence not admissible in law. It has further been laid down that where a finding of fact stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court will be within its jurisdiction to deal with the issue but in that event such a fact is required to be brought to light by the High Court exclusively and the judgement should also be categorical as to the issue of perversity vis-a-vis the concept of justice. Now, in the present case, the learned appellate court came to the conclusion that the plaintiff/appellant had no requirement for the suit room for starting a grocery shop on the basis of certain circumstances, namely the plaintiff introduced such an allegation making out a case of reasonable requirement only by a subsequent amendment of the plaint and he had no such case when he filed the suit for eviction of the defendant/tenant only on the ground of default in payment of rent. He further pointed out that the evidence produced before him was not sufficient to establish the case, which the plaintiff/appellant wanted to make out that he was involved in supplying stationery-cum-grocery items to different houses after securing orders from different persons. In this connection, the learned appellate court pointed out that the plaintiff failed to produce the cash memo showing the purchase of the goods which he could sell by going door to door. He also failed to produce the stock register maintained by him. In this connection, the learned appellate court pointed out that the plaintiff failed to produce the cash memo showing the purchase of the goods which he could sell by going door to door. He also failed to produce the stock register maintained by him. He even proceeded to disbelieve one witness, namely, P.W.2 who came to depose that he used to purchase grocery articles from the plaintiff by pointing out that in his further statement he deposed that plaintiff had asked him for Rs. 5000/- and he had agreed to pay that amount to the plaintiff. But the plaintiff in his deposition remained silent about that particular fact. In the case of Mst. Bega Begum vs. Abdul Ahad Khan (supra), the Apex Court in dealing with the question of reasonable requirement made the following observation : "...... the words "reasonable requirement" which undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire........ It seems to us the connotation of the term 'need' or 'requirement' should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds. This appears to us to be the general scheme of all the Rent Control Acts, prevalent in other States in the country." In the case of Raghunath G. Panhale (dead) by L.Rs. vs. M/s. Chaganlal Sundarji & Co. (supra), reported in AIR 1999 SC 3864 , the Apex Court on the same point has observed as follows:- "The word 'reasonable', in our view, connotes that the requirement or need is not fanciful or unreasonable. It cannot be a mere desire. The word 'requirement' coupled with the word reasonable means that it must be something more than a mere desire but need not certainly be a compelling or dire necessity." It has further been observed in such decision than it would be too much to expect from the landlord that he should make preparations for starting the new business. The word 'requirement' coupled with the word reasonable means that it must be something more than a mere desire but need not certainly be a compelling or dire necessity." It has further been observed in such decision than it would be too much to expect from the landlord that he should make preparations for starting the new business. Indeed, from a commercial and practical point of view, it would be foolish on his part to make arrangements for investment of capital, obtaining of permits and receipt of stocks when he would not know whether he would at all be able to get possession of the suit room and if so when and after how many years. 8. Considering the question of reasonable requirement in that light it transpires that the learned appellate court found fault with the landlord as he failed to produce the stock register etc. without considering the circumstance that the plaintiff/landlord had no other avocation in life and his evidence regarding supplying of grocery items gets corroboration from P.W.2 whose evidence to this effect could not be rejected on any reasonable ground. In this respect I am constrained to point out that the learned appellate court below wanted some document to be satisfied about the plaintiffs assertion that he was selling house articles and in this way found fault with the register filed by the plaintiff marked Ext. 4 wherein it was noticed that the first selling of goods was on 16.11.85 and the last selling was on 5.5.90. In my considered opinion, in this way, the learned appellate court approached the matter in issue erroneously as it is not expected from a person who had a meagre income from supplying different household articles to different houses to maintain elaborate registers, cash memo etc. No doubt, in reversing the judgement and the decree passed by the trial court, the learned appellate court below applied wrong test and the findings stand vitiated due to perversity noticed in such judgement in appreciating the evidence on record and also in dealing with the question of reasonable requirement. 9. In the result, the appeal must succeed. The appeal is thus allowed. The judgement passed by the appellate court below is hereby set aside and the judgement of the trial court restored. Having regard to the circumstances, I make no order as to cost. 9. In the result, the appeal must succeed. The appeal is thus allowed. The judgement passed by the appellate court below is hereby set aside and the judgement of the trial court restored. Having regard to the circumstances, I make no order as to cost. Let a copy of this judgement along with the L.C.R. be returned to the court below for information. Appeal allowed.