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2004 DIGILAW 507 (CAL)

INSTRUMENTATION LIMITED v. PUSPA DEVI BHARTIA

2004-07-28

P.K.BISWAS

body2004
P. K. BISWAS, J. ( 1 ) THIS appeal is directed against the judgement and decree dated 6th August, 1997 passed by the learned Additional District Judge, 2nd Court, alipore, South 24 Parganas in Title Appeal No. 133 of 1996 whereby and whereunder the learned 1 st Appellate Judge has affirmed the judgment and decree dated 5. 2. 96 and 15. 3. 96 respectively passed by the learned 2nd asstt. District Judge at Alipore, South 24 Pgs. in Title Suit No. 62 of 1990. ( 2 ) THE facts leading to the filing of this second appeal may be summarized as follows :- the plaintiff/respondent filed this suit against the defendant/appellant for his eviction from the suit premises on the ground of reasonable requirement as she was staying at 13, Sarat Chatterjee Avenue, allowed to her husband by the Company that is Gopai Trading Co. Pvt. Ltd. , with nine members with great difficulty. The defendant/appellant was inducted into the suit premises of which the plaintiff/respondent is the owner initially at a rental of Rs. 2,000/- per month in addition to a sum of Rs. 600/- for hire of fittings etc. , for three years. Subsequently, after the expiry of the said term, two other agreements were entered into and the rent was enhanced to Rs. 3,5007- per month along with a sum of Rs. 1,225/- towards other amenities upto 1. 12. 97. After the expiry of the date the defendant /appellant was supposed to vacate the suit premises. But the appellant/defendant having not done so, an ejectment notice was sent asking him to vacate the suit premises on the ground of reasonable requirement as disclosed in the plaint including the ground that the husband of the plaintiff was going to retire very soon and the accommodation available in the existing premises at Sarat Chatterjee Avenue was very inadequate. That apart, its landlord has served a notice of ejectment upon Gopal trading Co. wherein the plaintiff7respondent's husband was working and in whose name the tenancy stood. Hence, this suit. That apart, its landlord has served a notice of ejectment upon Gopal trading Co. wherein the plaintiff7respondent's husband was working and in whose name the tenancy stood. Hence, this suit. ( 3 ) THE defendant7appellant contested the suit by filing the written statement denying all the material allegations in the plaint and contending, inter alia, that there is no genuine need or requirement of the suit premises by the plaintiff and the suit has only been instituted for pressurising the defendant to enhance the amount of rent and it has also been alleged by the defendant that the plaintiff along with her other family members resides at 9/1, Ram Kumar Rakshit Lane. ( 4 ) THE learned trial Court on the basis of the materials on record came to find that the plaintiff/respondent required the suit premises genuinely as it was found by him that there is serious paucity of space and the present accommodation cannot be described as suitable keeping in view of her requirement and also found that the suit premises undoubtedly is much more spacious compared to the premises presently occupied by the plaintiff and the other members of the family and ultimately granted decree in favour of the plaintiff on the ground of reasonable requirement. ( 5 ) BEING aggrieved by and dissatisfied with the aforesaid judgment and decree, the defendant/tenant preferred an appeal and the learned 1st appellate Judge also affirmed the judgement holding therein the claim of ejectment of the suit premises by the plaintiff is a genuine one. ( 6 ) BEING aggrieved by and dissatisfied with the aforesaid judgement and decree passed by the learned 1st Appellate Judge, the defendant/tenant as appellant has filed a second appeal alleging therein that the judgment of the 1st Appellate Court being a last Court of fact has not discussed the evidence and materials on record and only reproduced the claim laid by the parties and delivered the judgement. ( 7 ) IT has further been contended by them that the approach of the learned 1st appellate Judge in affirming the judgment of the trial Court is quite perverse. Hence, this appeal. ( 7 ) IT has further been contended by them that the approach of the learned 1st appellate Judge in affirming the judgment of the trial Court is quite perverse. Hence, this appeal. ( 8 ) IN this appeal following substantial question of law was formulated whether the decree passed by both the Courts below on the ground of reasonable requirement had satisfied the test of mandatory requirement under section 13 (1) (ff) of the West Bengal Premises Tenancy Act regarding alternative, reasonable and suitable accommodation of the plaintiff, ( 9 ) THE learned Counsel appearing on behalf of the plaintiff has contended that it is now quite settled position of law that for getting a decree fo'r eviction under Section 13 (1 ) (ff) of the Premises Tenancy Act the landlord is to prove a) reasonable requirement of the premises in the occupation of the tenant for his own use and occupation if he/she is the owner b) absence of possession of any reasonably suitable accommodation of him and in support of his contention, he has placed his reliance on a decision reported in air 1989 Cal 244 in the case of Smt. Bibhabati Ghosh, appellant v. Panchu gopal Paul, respondent and also on a decision reported jn 81 Cal WN 814 in the case of Provash Chandra Chatterjee v. Chand Mohan Basak. ( 10 ) FURTHER it has been contended by him that in the instant case, the learned 1st Appellate Judge being the last Court of fact has in a very cryptic manner affirmed the finding of the learned Trial Judge without assigning any reason whatsoever. ( 11 ) IT is quite settled position of law that the appellate Court has jurisdiction either to reverse or affirm the findings of the trial Court and the first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. ( 11 ) IT is quite settled position of law that the appellate Court has jurisdiction either to reverse or affirm the findings of the trial Court and the first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgement of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons on all the issues arising along with the contentions put forth and pressed by the parties for the decision of the appellate Court and in this connection, they have placed their reliance on a decision reported in (2001)3 SCC 179 : 2001 wblr (SC) 270 in the case of Santosh Hazari v. Purushottam Tiwari (deceased) by Lrs. ( 12 ) FURTHER, it has been contended on behalf of the defendant/appellant that although there are numerous documents such as Exhibit 6, Exhibit 9 and Exhibit 'b' and 'c' Series wherefrom it would be crystal clear that the plaintiff has used the address of 9/1, Ram Kumar Rakshit Lane and despite taking a specific plea in the written statement by the defendant/appellant, that the plaintiff has accommodation and plaintiff along with other family members residing at 9/1, Ram Kumar Rakhit Lane, no local inspection was taken out by the plaintiff to ascertain that they have no other reasonably suitable accommodation at the aforesaid premises namely 9/1, Ram Kumar Rakshit lane. Ext. 4 also clearly discloses that 9/1, Ram Kumar Rakshit Lane is the residential address of the plaintiff. ( 13 ) FURTHER, it has been contended that when RW. 1 specifically stated that they were provided with accommodation at 13/1, Sarat Chatterjee Ave. then what laid them to use the address as 9/1, Ram Kumar Rakshit Lane. ( 14 ) IT has further been contended by them that the learned Trial Judge just in a casual way discussed the issue regarding reasonable and suitable accommodation of the plaintiff in respect of premises of 9/1, Ram Kumar rakshit Lane holding that no specific evidence was laid by the defendant in this regard to substantiate the said fact. ( 14 ) IT has further been contended by them that the learned Trial Judge just in a casual way discussed the issue regarding reasonable and suitable accommodation of the plaintiff in respect of premises of 9/1, Ram Kumar rakshit Lane holding that no specific evidence was laid by the defendant in this regard to substantiate the said fact. But it has been contended on behalf of the defendant that in fact such evidence has been laid and such plea was taken by the defendant specifically and in support of that, evidence has also been laid by the defendant in course of his examination, but the learned Trial judge failed to appreciate the same and without recording any findings on this issue that whether or not the plaintiff had any other suitable or reasonable accommodation elsewhere or in the aforesaid premises in 9/1, ram Kumar Rakshit Lane has granted decree in favour of the plaintiff. ( 15 ) THE said fact has also been overlooked by the first appellate judge and the learned Judge in a very casual manner only reproduced the claim laid by the parties and in a very casual manner affirmed the judgment of the trial Court. ( 16 ) SO, it has been submitted on their behalf that there was no conscious application of mind with regard to the findings by the first appellate court in affirming the judgment. ( 17 ) ACCORDINGLY, it has been contended that the judgment of the first appellate Court should be set aside and since there is no other material to affirm the judgment of the trial Court, the aforesaid judgment should also be set aside. ( 17 ) ACCORDINGLY, it has been contended that the judgment of the first appellate Court should be set aside and since there is no other material to affirm the judgment of the trial Court, the aforesaid judgment should also be set aside. ( 18 ) IN opposing the aforesaid claim, it has been contended on behalf of the respondent/plaintiff that in the plaint they nave categorically disclosed that they do not have any other suitable accommodation and in evidence also (hey have stated the same In course of cross-examination of the plaintiff as pw 1 he was also tested about the availability of the accommodation at 9/1 Ram Kumar Rakshit Lane, yet, the defendant has not taken out any inspection to fix that the plaintiff had suitable accommodation tn premises No. 9/1, Ram Kumar Rakshit Lane It has however been contended by them that whether the plaintiff possesses any other suitable accommodation is a pure question of fact but since there was failure on the part of the first appellate court to deal with those it should certainly come as a substantial question of law, but Section 103 of C. P. C authorises the second appellate Court to look into those materials to say whether respective onus has been discharged by the parties or not ( 19 ) IN support of the contention, they have placed their reliance on a decision reported in 2000 Cal WN 617 in the case of Smt Mina Bose v. Miss dali Ghosh and according to them there are sufficient materials to hold by this Court that the plaintiff has no other reasonable or suitable accommodation and this Court therefore should affirm the decree granted by the learned courts below and as such there is no question of interference by this Court for sending the case on remand by this Court to ascertain whether plaintiff has any other reasonable or suitable accommodations specially in Premises no 9/1, Ram Kumar Rakshit Lane ( 20 ) I have given my anxious consideration with regard to the submissions made by the parties and I have also looked into the decisions cited at the bar with meticulous care. ( 21 ) IT is now quite settled position of law that in order to succeed in a suit for eviction of a tenant under Section 13 (1) (ff) of the West Bengal premises Tenancy Act, the plaintiff must not only prove that he requires the disputed premises for his own use and occupation and if he is the owner and he is also required to prove that he was not in possession of any other reasonably suitable accommodation elsewhere apart from the present accommodation as required under the later part of clause (ff) of sub-section 1 of Section 13 ( 22 ) BUT here the trial Court in his judgment has not dealt with the issue specifically nor gave proper findings on such question before grant of decree in favour of the plaintiff ( 23 ) ON appeal, being taken out the first appellate Judge also failed to notice the aforesaid infirmities in the judgement of the Trial Judge in granting a decree Now when there was specific plea taken in the written statement by the defendant regarding the availability of the accommodation by the plaintiff at 9/1, Ram Kumar Rakshit Lane, and certain materials were also there in the evidence, both oral and documentary evidence, appropriate findings should have been recorded by the Trial Judge with regard to any other reasonably suitable accommodation by the plaintiff in the aforesaid premises and the said fact has also been clearly overlooked by the first appellate Judge in affirming the judgment. ( 24 ) THAT being the position, I find that serious infirmity is there in the findings of the trial Judge in granting the decree and the learned first appellate Judge has also overlooked the said aspect of the matter and passed the judgement in a very casual manner without applying his judicial mind on the evidence and material available before him. So, being in agreement with the views expressed by the learned Counsel appearing for the appellant, I hold that the judgment of the first appellate Judge was a perverse one and it should accordingly be interfered with. So, being in agreement with the views expressed by the learned Counsel appearing for the appellant, I hold that the judgment of the first appellate Judge was a perverse one and it should accordingly be interfered with. But since in the instant case appropriate finding has not been recorded by the Trial Judge in granting a decree to the plaintiff without giving a specific finding regarding absence of reasonable, suitable accommodation by the plaintiff, I think that justice will be sub-served if the suit is sent back on remand for deciding the issue Nos. 4 and 5 in terms of the requirement of law before grant of any decree in favour of the plaintiff. ( 25 ) THAT being the position the findings recorded by the first appellate judge as also the Trial Judge are hereby set aside and the suit is remitted to the trial Court for fresh decision on the point as to whether the plaintiff is in possession of any reasonably suitable accommodation or in other words the issue Nos. 4 and 5 should be decided by the Trial Judge afresh. The other findings of the trial Court however shall remain intact. ( 26 ) THE trial Court will however allow the parties further opportunity to adduce evidence in addition to the evidence already on record on the point mentioned above and then upon hearing the parties shall record its finding on the aforesaid issues and if the finding on these issues be in favour of the plaintiff, the Trial Court shall pass a decree in favour of the plaintiff and if the above issues are found against the plaintiff the trial Judge shall dismiss the suit. ( 27 ) LET it also be made clear that this entire exercise snail be made complete within a period of one year from the date of communication of this order. ( 28 ) LET the lower Court records be sent down as expeditiously as possible. ( 29 ) ACCORDINGLY, the appeal be and same is hereby allowed on contest. Parties will however bear their respective cost. ( 30 ) THE judgement passed by the learned first appellate Judge and the Trial Judge are hereby set aside and the suit is remitted to trial Court for its decision in respect of issue Nos. 4 and 5 as indicated above within the period specified.