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2002 DIGILAW 24 (CAL)

Sital Prasad Chakraborty v. Usha Devi

2002-01-18

Joytosh Banerjee

body2002
JUDGMENT Joytosh Banerjee, J.: The present appeal from the appellate decree is directed against the judgment dated 20.4s.96 passed by the Assistant District Judge, Sealdah in the district of 24-Parganas (S) in T.A. No. 97/94 by which she dismissed the appeal and affirmed the decree of dismissal passed by the trial court that is to say Munsif, 2nd Court, Sealdah in T.S. No. 333/88. 2. Shortly put the facts and circumstances leading to the present appeal are as follows:- The plaintiff/appellant filed the suit for eviction of a house tenant alleging that he was the owner of Premises No. 14/1, Bhairab Mukherjee Lane, P.S. Ultadanga, Calcutta-4 and the defendant/respondent was a tenant in respect of 3 rooms, Kitchen, common bathroom and privy (fully described in the schedule of the plaint) at a rental of Rs. 35/- per month payable according to. English calender. The plaintiff/appellant stays in the 1st floor and 2nd of the house with his family. The only son of the plaintiff/appellant was an Advocate and the plaintiff required the suit rooms for the purpose of chamber, library and sitting room of his advocate son. That apart plaintiffs accommodation was too insufficient for which also the plaintiff/ appellant reasonably required the suit premises. For the aforesaid reason, the plaintiff/appellant issued an ejectment notice through his lawyer which was sent to the defendant/respondent by registered post with A.D. by which the defendant was asked to vacate the suit premises on the expiry of the month of July, 1988. But inspite of service of such notice the defendant/respondent failed to vacate. In that background, the plaintiff/appellant was constrained to file the suit. The defendant/respondent contested the suit by filing a written statement denying all the material allegations raised in the plaint and alleging, inter alia, that the plaintiffs present accommodation was sufficient for the purpose of starting a chamber by his lawyer son. 3. On the pleadings of the parties, the learned trial court raised certain issues including one issue touching the question of reasonable requirement on the part of the plaintiff/appellant for the suit premises and considering the facts, circumstances and evidence on record came to a conclusion that the plaintiff had no requirement for the suit premises. On such a finding it dismissed the suit. On such a finding it dismissed the suit. In appeal, through the judgement impugned the learned appellate court below affirmed the judgement of the learned trial court by specifically observing that the plaintiffs son could use one of the rooms on the 1st floor as his chamber. 4. It has transpired from the record that at the time of admission, the learned Judges of the Division Bench did not specifically formulate the substantial question of law involved in the appeal. Therefore, after hearing the learned Advocate for the appellant and also after going through the judgement impugned, the following questions have been formulated as the substantial questions of law, for the purpose of hearing of the appeal:- (i) Whether the decisions of the courts below regarding the reasonable requirement of the plaintiff for the suit premises are based on irrelevant consideration, which is contrary to the evidence too? (ii) In the absence of a finding regarding suitability of any particular room on the 1st floor, for using the same as the chamber of a lawyer, can a finding to this effect be sustained ? 5. I have heard the learned Counsel for the appellant but none has appeared on behalf of the respondent inspite of the fact that the respondent in connection with the present appeal appeared through and Advocate by filing the Vokalatnama. The learned Advocate for the appellant has submitted that the very approach of the courts below was wrong. While the trial court dismissed the case of reasonable requirement on a finding that since plaintiff/appellant's son was an advocate, the appeal court below on the other hand pointed out that the chamber of the plaintiff/appellant's son could be started on the 1st floor that is to say the residential portion of the plaintiff and his family without considering the question of privacy, and without further considering that whether such 1st floor room would be suitable for an advocate to start his chamber there. I am to note here that before this court, the learned Advocate for the appellant has challenged the findings of both the courts below on the ground of requirement of the plaintiffs advocate son for starting chamber etc. the suit rooms and not on the ground that the plaintiff/appellant required further accommodation apart from the accommodation which is now available to the appellant. the suit rooms and not on the ground that the plaintiff/appellant required further accommodation apart from the accommodation which is now available to the appellant. In this connection, it should be noted that the plaintiff/appellant filed an application (CAN No. 6936 of 2001) alleging, inter alia, that a grand daughter, namely, Sarbani Chakraborty was born on 8th of October, 1991 but by mistake she was referred to as a grand son in the evidence of the plaintiff/petitioner and such child Sarbani is now more than 7 years old and is a school student and she requires a study room and a room for her music lessons. But that application is not seriously moved and I am of the opinion that apart from the question regarding the requirement of the plaintiffs advocate son, no other question should be considered in the present second appeal as the substantial questions formulated touched only the plaintiffs requirement for his lawyer son in connection with starting a chamber and other necessary accommodation attached to such chamber. 6. It has been contended that the finding of the learned appellate court below that the plaintiffs son could start his chamber on the 1st floor is against settled position of law as the landlord is the best judge of his requirement for residential and business purpose. In support of his contention the learned Advocate has referred me to a decision of the Apex Court in the case of Ragavendra Kumar vs. Firm Prem Machinery & Co., reported in (2000) 1 SCC 679 . He also referred to the case of Dr. Saroj Kumar Das vs. Arjun Prasad Jogani, reported in (1987) 4 SCC 262 , wherein, the Hon'ble Court made this observation, which is relevant for the disposal of the present appeal:- "So far as the law on the question is concerned it is well settled that the alternative accommodation must be reasonably suitable and if it is not so then mere availability of alternative accommodation will not be a ground to refuse a decree for eviction if otherwise the courts are satisfied about the genuine requirement of the landlord and .............." The learned Advocate has further referred the case of Prativa Devi (Smt.) vs. T. V. Krishnan, reported in (1996) 5 SCC 353 , wherein the Hon'ble Court has observed that the landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own. 7. Deciding the question at issue in the light of the aforesaid observation of the Apex Court I find that the learned appellate court below should not come to a conclusion that the plaintiff's son could start his chamber on the 1st floor of the house without considering whether the 1st floor room was suitable for starting a chamber for a lawyer. It is significant to note that the plaintiff/landlord here wants the suit rooms which are situated on the ground floor for starting the chamber of his lawyer son, and for other requirement in connection with the practice of law by his son and it is his specific case that such chamber cannot be started on the 1st floor. Firstly because it would disturb the privacy of the plaintiff/appellant's family and also because of the fact that the 1st floor room is not suitable for the purpose of starting chamber there and the plaintiff/appellant has got the liberty to choose a suitable accommodation for the aforesaid purpose. It is significant to note that the learned appellate court below has not come to a finding that there is no requirement for starting a chamber etc. for the lawyer son of the plaintiff/appellant. She has only observed that such requirement can be satisfied by starting a chamber on the 1st floor of the house. By coming to such a decision, the learned appellate court has failed to take note of the settled position of law as pointed out above that the landlord is the best judge of his requirement and he has a complete freedom in the matter. This is more so in view of the fact that the landlord uses the 1st floor of the house for the residential purpose wherein he resides with the members of the family and in the event of his son starting a chamber for his practice of law, the privacy of the family would be disturbed. This is more so in view of the fact that the landlord uses the 1st floor of the house for the residential purpose wherein he resides with the members of the family and in the event of his son starting a chamber for his practice of law, the privacy of the family would be disturbed. That apart, it is a matter of common sense that it would be more convenient for a lawyer to start a chamber in the ground floor of a house than on the 1st floor where the members of the entire family reside. 8. Now, the question is whether in a second appeal this court can disturb the finding of fact of the "first appellate court. In the case of Kulwant Kaur vs. Gurdial Singh Mann(dead) by L.R.s & Ors., reported in AIR 2001 SC 1273 , Raghunath G. Panhale (dead) by L.Rs. vs. M/s. Chaganlal Surdarji & Co., reported in AIR 1999 SC 3864 and Hamida & Ors. vs. Md. Khalil, reported in AIR 2001 SC 2282 , the Apex Court dealt with the question whether the finding of the lower appellate court on facts can be altered or not in the second appeal by the High Court. It transpires from those reported decisions of the Apex Court 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, as it has been seen the learned court below completely went against the settled position of law that the alternative accommodation must be reasonably suitable and if it is not so then mere availability of alternative accommodation will not be a ground to refuse a decree for eviction. Now, in the present case, as it has been seen the learned court below completely went against the settled position of law that the alternative accommodation must be reasonably suitable and if it is not so then mere availability of alternative accommodation will not be a ground to refuse a decree for eviction. That being so it can be said without hesitation that the judgement impugned smacks of perversity as it has failed to come to a decision on the basis of the settled position of law. 9. In the result, the appeal must succeed. The appeal is accordingly allowed and the judgement and decree of dismissal passed by the learned appellate court below are hereby set aside. The suit is decreed in favour of the plaintiff/appellant. The defendant/respondent is directed to vacate the suit premises on the expiary of the month of February, 2002; in default the decree of eviction will be executable. As the defendant/appellant did not contest the appeal I make no order as to cost. Let a copy of the judgement be sent down to the court below along with the L.C.R. for information and necessary action. Appeal allowed.