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2004 DIGILAW 68 (CAL)

SARASWATI MAJHI, BHOWMICK v. DULAL CHANDRA DAS

2004-02-05

AMITAVA LALA

body2004
AMITAVA LALA, J. ( 1 ) THE judgment of the Court was as follows : this First Miscellaneous Appeal arises out of an order of remand passed by the Second Additional District Judge, Barasat, 24 Pgs. (North ). Although extensive arguments were advanced by both the parties on different occasions but I find the matter is rested on a very short campus. Initially, the suit was instituted on the ground of reasonable requirement and for building and re-building being under Section 13 (1) (ff) and Section 13 (1) (f) of the west Bengal Premises Tenancy Act, 1956. The suit is of the year 1985. A decree was passed by the Court of first instance of 5th January, 1996. The order of remand was passed by the first appellate Court on 27th January, 2000. The time of hearing of the appeal is early part of 2004. The mentioning of the period or dates is not only preface or ornamental incorporation in the body of the judgment but to specify the period of anxiety of the litigants and the gravity of situation. Even in such a case, if this Court, instead of passing an order of its own either remand or support the order of remand, it will lead the litigation for ever which cannot be the sincere desire of the Court of law. Thus, I have to confine myself in the merit and finally decide the same here and now. The Court of first instance framed various issues in respect of due consideration by it. Out of which, the relevant issue for the purpose of due consideration by all the Courts, in this context, is as follows :"is the plaintiff reasonably required the suit premises for her own use and occupation after building and re-building the same ?" ( 2 ) THEREFORE, if the issue is framed by the Court and settled in presence of the parties, it will give a clear indication in respect of the merit of the case. The issue is not made for advancing litigants under Section 13 (1) (0 of the act alone. The issue was that whether the plaintiff before the Court of first instance reasonably required the suit premises for her own use and occupation after building and re-building of the same. The issue is not made for advancing litigants under Section 13 (1) (0 of the act alone. The issue was that whether the plaintiff before the Court of first instance reasonably required the suit premises for her own use and occupation after building and re-building of the same. Therefore, the application of Section 13 (1) (f) of the Act is secondary when application of Section 13 (1) (ff) of the act is primary. Nowhere it has been argued about the requirement of the tenant after building and re-building. Therefore, it is far to say that whether the requirement under Section 18a of the Act is mandatorily required in such circumstances or not. The Court of first instance has rightly proceeded with the issue and passed a decree for recovery of possession of the suit premises by evicting the defendant therefrom and also by passing a decree directing the defendant to vacate and deliver the khas possession of the suit premises within three months thereof. In default, liberty was given to the plaintiff to initiate the execution proceeding. The learned Judge failed to appreciate the issue as framed by the Court of first instance and mis-directed himself with the dispute towards the exclusive case of building and re-building under Section 13 (1) (0 of the Act. There is no discussion in the judgment as to why the judgment was delivered by the Court of first instance giving any period therein. ( 3 ) HOWEVER, during the pendency of the suit in the year 1993, the concerned Municipality issued a notice for demolition of the premises in question. Sucti notice was exhibited as Ext. 8 when the notice of the landlord to quit or vacate delivery of the khas possession of the premises was exhibited as Ext. 9. ( 4 ) THE learned Counsel appearing for the respondent has raised an objection by saying two dates i. e. Ext. 9 is of 17th June, 1985 when the notice of the Municipality is 24th June, 1993. But such objection cannot play any role here because of the reason that in the notice itself both the grounds were taken in the year 1985 at the time of institution of the suit and subsequently during the pendency of the proceeding the cause of building and re-building was supported by the notice of the Municipality. But such objection cannot play any role here because of the reason that in the notice itself both the grounds were taken in the year 1985 at the time of institution of the suit and subsequently during the pendency of the proceeding the cause of building and re-building was supported by the notice of the Municipality. The Municipality having special knowledge assessed the condition through its machineries whether the building structure will continue or it has to be demolished. Therefore, such evidence is conclusive proof of demolition additionally. It has notified that the premises is required to be demolished forthwith and to secure the old building which is in a dangerous state and is likely to fall to the peril of the public. A fifteen days time period is prescribed therein failing which the Municipal authority will take step. Even the first appellate Court was pleased to say that this part of evidence cannot be 'brushed aside' but proceeded towards wrong premises by saying that since there is no finding in the impugned judgment that the building and re-building cannot be carried out without the premises being vacated and since there is also non-compliance of the provision of Section 18a (1) of the West Bengal Premises Tenancy Act, the judgment and decree of the Court of first instance cannot be sustained. Such observation also contrary to the finding of the court of first instance. Such Court held on the basis of the evidence and ext. 8 (Municipal notice) and Exts. 10,11 etc. (Commission's report held that without evicting the defendant it is not possible for the plaintiff to build or re-build the suit property. But assuming such material part was not available what prevented the learned first appellate Court to come to a definite conclusion by itself instead of remanding the suit is not understandable. It is apparent that the remand will cause unnecessary delay. The first appellate Court is the final fact finding Court. Therefore, there is no embargo upon such Court to proceed with the appropriate manner to come to a conclusion as early as possible. By not doing so, the first appellate Court arrived at a arosslv uniust and improper findina. ( 5 ) MR. The first appellate Court is the final fact finding Court. Therefore, there is no embargo upon such Court to proceed with the appropriate manner to come to a conclusion as early as possible. By not doing so, the first appellate Court arrived at a arosslv uniust and improper findina. ( 5 ) MR. Tarak Nath Roy, learned Senior Counsel appearing for the appellant cited a judgment reported in AIR 1999 SC 1125 (Ashwinkumar K. Patel v. Upendra J. Patel and Ors.) wherein I find that the process of remand was discouraged by the Supreme Court considering the fact that it would lead to further delay and uncertainty. Thus, the relevant portion of such judgment is quoted as follows :"the High Court should not ordinarily remand a case under order 41, Rule 23, C. P. C. to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the high Court, it should have itself decided the appeal one way or other. It could have considered the various aspects of the case mentioned in the order of the trrial Court and considered whether the order of the trial Court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prim a facie case on the material available. It matters involving agreements of 1980 (and 1996) on the one hand and an agreements of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. Thus, the remand by the High Court was not necessary". (emphasis supplied) ( 6 ) AMONGST others there are four major reasons of the same. Firstly, it is desirable that good, bad, indifferent the Superior Courts should decide the matters once for all to avoid tremendous pressure upon such Courts. Secondly, litigants should not be deprived from better Justice. Thirdly, routine remand cause unnecessary delay of the proceedings. Fourthly, sometimes remanded orders are being criticized in a manner in the second round as if the original order of remand was far less than remand and far more a direction upon such Court to proceed in the way so directed. ( 7 ) MR. Thirdly, routine remand cause unnecessary delay of the proceedings. Fourthly, sometimes remanded orders are being criticized in a manner in the second round as if the original order of remand was far less than remand and far more a direction upon such Court to proceed in the way so directed. ( 7 ) MR. Roy, also cited a judgment reported in 1981 (1) C. L. J. 395 (J. F. F. Crossley v. Smt. Sushila Bala Dasi) to establish that the lacuna in the judgment of the Court of Appeal below in not specifying the period within which the proposed construction was to be made as required under Section 18a of the West Bengal Premises Tenancy Act has not vitiated the judgment but non-mention of such defect can be cured by this Court at the time of disposing of the instant appeal. ( 8 ) THEREFORE, in my view, the order of remand as passed by the first appellate Court is not justiciable. ( 9 ) MR. Rabilal Moitra, learned Government Pleader and appearing Senior counsel for the respondent, cited a decision in support of his contention reported in 1986 (1) CHN 253 (Smt. Sarashibala Roy and Ors. v. Smt. Monorama roy and Ors. ). The relevant portion of such judgment as pointed out by Mr. Moitra is as follows :"in view of Section 18a, controlling Section 13 (1) (f), a requirement for building/re-building, though otherwise reasonable, would not pass the test of Section 1. 3 (1) (0 unless it is further shown that the premises after reconstruction would afford reasonable facilities to the tenants to be restored back and to utilize the tenancy for which the same was used. Any other interpretation would not only make the words "subject to the provisions of Section 18a (2) in Section 13 (1) (f) superfluous and otiose but would be against the very object for which these rent acts have been enacted. The interpretation, therefore, must be inspired with the objective of giving protection to the tenants and if two interpretations are possible, the one which is protective or prove protective of the interests of the tenant must be preferred to the protective or more protective of the interest of the landlords". ( 10 ) MR. Moitra further cited a Single Bench judgment reported in 2001 (3) CHN 141 (Santosh Kumar Majumdar v. Rekha Bose ). ( 10 ) MR. Moitra further cited a Single Bench judgment reported in 2001 (3) CHN 141 (Santosh Kumar Majumdar v. Rekha Bose ). In terms of the Paragraph 5 of the said judgment, he wants to establish that the sanctioned building plan is required for the purpose of ascertaining whether the landlord is ready for construction and whether for effecting such construction tenant must vacate the premises or in other words to ascertain whether without vacating the tenanted portion constructed is possible. Furthermore, from the sanctioned building plan it would also appear whether necessary provision has been made for restoration of the tenanted area to the tenant after completion of the construction. ( 11 ) ACCORDING to me, the guiding principle of test the applicability of Section 18a is whether the case is exclusively falling under Section 13 (1) (f) of the Act or not. If other condition i. e. Section 13 (1) (ff) is attached to the aforesaid condition then the absolute necessity of Section 18a is diluted. In such case the necessity of the Court is to determine the real cause of action. Moreover, the entire judgment of the first appellate Court and the very basis of the argument of the respondent is based on Section 18a (1) alone. In that case, a period could have been fixed by the Court. Therefore, if such period, for the sake. of argument, is granted by the Court on the basis of the available evidences-ind materials then there is no need to send the matter back on remand. Section 18a (1) of the said Act speaks that if the Court passes a decree for recovery of possession of any premises on the ground made in clause (f) of sub-section (1) of Section 13 then it shall specify the period within which the building or re-building, or the additions or alternations, on or to such premises, shall be completed or may on the application of the landlord extend such period from time to time for good and sufficient reasons. Therefore, the only requirement was for the first appellate Court to give the time, if any, at all necessary for the purpose of building and re-building etc. but nothing more, nothing less. Therefore, the only requirement was for the first appellate Court to give the time, if any, at all necessary for the purpose of building and re-building etc. but nothing more, nothing less. ( 12 ) AS such, the appropriate order, in the facts and circumstances of the case would be that a period of three months should be fixed for the compliance of Section 18a (1) of the Act and accordingly, such period is fixed by this Court. The decree of the Court of first instance is, accordingly, modified. The order of the first appellate Court stands set aside. The decree of the trial Court stands confirmed. Interim order, if any, stands superseded the final order. The appeal is, thus, allowed. There will be no order as to costs. Let urgent xerox certified copy of this order, if applied for, be given to the learned Counsel for the parties within the period of a fortnight from the date of putting the requisites.