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2005 DIGILAW 106 (CAL)

Hari Krishna Bhakat v. Sukla Roy

2005-02-11

JYOTIRMAY BHATTACHARYA

body2005
JUDGMENT This second appeal is directed against the judgment and decree dated 29th July, 1988 passed by the Assistant District Judge, Additional Court, Burdwan in Title Appeal No.7 4 of 1987 affirming the judgment and decree dated 30th August. 1986 passed by the learned Munsif, 2nd Court at Burdwan in Title Suit No. 244 of 1982. 2. The defendant in a suit for eviction on the ground of reasonable requirement under the West Bengal Premises Tenancy Act, is the appellant before this Court. 3. Both the learned Courts below, be concurrent findings of fact, passed and/or maintained the decree for eviction in favour of the plaintiff/respondent on the ground of the reasonable requirement of the plaintiff/respondent. 4. Both the learned Courts below found that the plaintiff's family consisting of five members, viz., the plaintiff, her husband, a son, a nephew and a maid who are in possession of only one bed room measuring 12’ X 12’, one lumber measuring 8½’ X 9½’ and a kitchen, reasonably require the suit premises for the own use and occupation of the plaintiff as well as for the use and occupation of the members of her family. 5. The plaintiff who is an educated lady is employed in the Rural Library. Her husband is a doctor. The plaintiff has a school going child and a nephew who was brought up in the family as a member of the plaintiff's family after the death of the parent of the nephew. Both the learned Courts below concurrently found that the husband of the plaintiff, though a non-practising doctor should have a chamber of his own which can be used as drawing room for the family as well as for study of the son of the plaintiff. 6. It was also found by the learned trial Court that the plaintiff's husband being a doctor and having means to start a medicine shop also requires one room for opening a medicine shop in the suit premises. 7. The said finding of the learned trial Court regarding the requirement of one room for opening medicine shop for the husband of the plaintiff has not been upset by the learned Court below in appeal. Such a decree• is under challenge in this appeal. 8. Admittedly the suit premises consists of two shop rooms in the ground floor of the said premises. Such a decree• is under challenge in this appeal. 8. Admittedly the suit premises consists of two shop rooms in the ground floor of the said premises. The plaintiff requires the said suit premises for opening a medicine shop, i.e., for business purpose of her husband as well as for providing one room to her husband who is a doctor for running his chamber. The plaintiff, however, claimed that the said room can also be used for multipurpose uses, i.e., as drawing room-cum-study room-cum-doctor's chamber. 9. Considering the size of the family, the nature of requirement of the plaintiff and the members of her family and availability of the present accommodation in her hands, this Court does not want to interfere with the decrees of the learned Courts below which were passed on the basis of the concurrent findings of fact. 10. It appears from the records that no substantial question of law was formulated by this Court at the time of admission of this appeal. At the time of' hearing of this appeal, this Court was unable to find out the involvement of any substantial question of law which is required to be considered in this appeal. Neither party could suggest any substantial question of law which is required to be answered in this appeal in the light of the concurrent findings of the facts of both the learned Courts below. Nothing could be pointed out to this Court that the findings arrived at by both the learned Courts below are perverse and/or based on no materials-on-record. 11. Mr. Ghosal, learned Advocate, appearing on behalf of the appellant, however, invited this Court to interfere with the decree appealed against on different grounds altogether by bringing on record certain subsequent event which took place during the pendency of this appeal. An application for taking note of the subsequ9nt event has also been taken out by the appellant to show that the requirement of the plaintiff/respondent has been otherwise satisfied by construction of two rooms in the first floor of the disputed premises as well as on the a plot acquired by the plaintiff by deed of exchange during the pendency of the appeal. 12. Mr. 12. Mr. Ghosal submitted that in view of such uncontroverted statement of the appellant regarding availability of two additional rooms in the hands of the respondent during the pendency of the said appeal, this Court by taking note of such subsequent event should allow the instant appeal by holding that the requirement of the plaintiff/respondent has been satisfied because of-availability of two additional rooms at her disposal during the pendency of this appeal. In support of his said contention, Mr. Ghosal relied upon a decision of the Hon'ble Supreme Court in the case of Kedar Nath Agarwal v. Dhanraji Devi reported in 2004 (8) SCC 76 , Paragraph 16 whereof, it was held as follows :"16. In our opinion, by not taking into account the subsequent event, the High Court has committed an error of law and also an error of jurisdiction. In our judgment, the law is well settled on the 'point, and it is this the basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. This, however, does not mean that events happening after institution of a suit/proceeding, cannot be considered at all. It is the power and duty of the Court to consider changed circumstances. A Court of law may take into account subsequent events inter alia in the following circumstances: (i) the relief claimed originally has by reason of subsequent change of circumstances become inappropriate; or (ii) it is necessary to take notice of subsequent events in order to shorten litigation; or (iii) it is necessary to do so in order to do complete justice between the parties. (Re : Shikharchand Jain v. Digamber Jain Praband Karini Sabha, SCC p. 681, Para 10.)". 13. Thus, relying upon the said decision, Mr. Ghosal submitted that the requirement of the plaintiff should be reassessed afresh in this appeal after taking note of the subsequent event, as pleaded by the appellant in her application for taking note of subsequent event being C.A.N. No. 3004 of 1998. 14. Mr. 13. Thus, relying upon the said decision, Mr. Ghosal submitted that the requirement of the plaintiff should be reassessed afresh in this appeal after taking note of the subsequent event, as pleaded by the appellant in her application for taking note of subsequent event being C.A.N. No. 3004 of 1998. 14. Mr. Banerjee, learned Senior Advocate, appearing on behalf of the respondent, submitted that it is true that in a suit for eviction on the ground of reasonable requirement, the Court is required to consider the exact requirement of the plaintiff as on the date of passing of the decree. Thus, Mr. Banerjee does not dispute the said proposition of law, as advanced by Mr. Ghosal. 15. Mr. Banerjee, on instruction from his client, denied and disputed the allegation regarding construction of two more additional rooms on the suit premises, as alleged by the appellant. Mr. Banerjee further submitted that even assuming though not admitting that such construction has been made, but still then the Court will have to assess as to whether the said additional rooms can be regarded as the reasonably suitable accommodation for the plaintiff/respondent. 16. According to Mr. Banerjee, even assuming that those rooms are available to the plaintiff but since those rooms in the first floor cannot be conveniently used either for running a doctor's chamber or for the commercial purpose for opening a medicine shop, the requirement of the plaintiff for which the plaintiff requires the suit premises cannot be satisfied. Accordingly, Mr. Banerjee submitted before this Court that since the alternative accommodation, even if there be any, is not a reasonably alternative suitable accommodation, the decree passed by both the learned Courts below cannot be disturbed. 17. Heard the learned Advocates of the respective parties and considered the materials-on-record in the light of the altered situation due to happening of the subsequent event which has been brought on record by the appellant by way of an application being C.A. N. No. 3004 of 1998. It appears from Paragraph 11 thereof, the defendant/appellant categorically stated that very recently the plaintiff/respondent has constructed two rooms in the first floor of the disputed premises and also on the said plot acquired by her by the deed of exchange. The said facts remain uncontroverted, as there is no denial of such fact by way of an affidavit by the plaintiff/respondent. 18. The said facts remain uncontroverted, as there is no denial of such fact by way of an affidavit by the plaintiff/respondent. 18. Accordingly, I have no other alternative but to proceed on the basis that as if, such construction has been made by the plaintiff/respondent and thereby an additional accommodation of two rooms in the first floor of the said premises was made available to the plaintiff/respondent during the pendency of this appeal. There is, however, nothing on record to show before this Court that the plaintiff/respondent has any room at her disposal in the ground floor of the said premises. 19. Therefore, in order to upset the decree of the learned Court below, this Court will have to assess as to whether the requirement of the plaintiff/respondent which was concurrently found by the learned Courts below, can be satisfied by the availability of those two rooms in the first floor of the said premises. 20. I have already indicated above that both the learned Courts below passed and/or maintained the decree for eviction on the ground that the suit premises is required by the plaintiff for business purpose, i.e., for opening a medicine shop as well as for providing one room to the husband of the plaintiff who is a doctor for running his chamber which can also be used for multipurpose user, i.e., doctor's chamber-cum-study room-cum-drawing room. 21. Thus, it is apparent that the suit premises is required by the plaintiff/respondent mainly for business purpose. Admittedly, the suit rooms are used as shop room by the defendant. As such, it cannot be said that the said rooms cannot be used for the business purpose by the plaintiff. The additional accommodation which came in the hands of the plaintiff in the first floor of the suit premises cannot be regarded as the reasonably alternative suitable accommodation as the said rooms in the first floor cannot be used conveniently either for the doctor's chamber or for the business purpose for carrying on the medicine shop. On the contrary, the said requirement of the plaintiff/respondent can be satisfied by the suit rooms which can be much more conveniently used for business purpose by the plaintiff. 22. On the contrary, the said requirement of the plaintiff/respondent can be satisfied by the suit rooms which can be much more conveniently used for business purpose by the plaintiff. 22. Accordingly, I hold that since the additional accommodation which came in the hands of the respondent in the first floor of the suit premises is not reasonably suitable for the purpose for which eviction is sought for by the plaintiff/respondent, the plaintiff/respondent reasonably requires the suit premises for her own requirement as well as for the requirement of her members of the family. In support of my such conclusion, I, however, find support from the decision of the Hon'ble Supreme Court in the case of Saroj Kumar Das v. Arjun Prasad reported in AIR 1987 SC 2131 . 23. Admittedly, the plaintiff/respondent is the owner of the suit premises. Accordingly, all the three tests which are required to be satisfied viz., (i) ownership of the plaintiff, (ii) requirement of the plaintiff and (iii) the plaintiff does not possess of any reasonably suitable accommodation elsewhere, are satisfied in the instant case. 24. On assessment of the totality of the circumstances of this case, I do not find any substantial question of law which is required to be considered in this appeal. In such view of the matter, I find no reason to disturb the decrees of both the learned Courts below which were arrived at on the basis of concurrent finding of facts. 25. Accordingly, the appeal fails without, however, any order as to costs. 26. The judgments and decrees of both the learned Courts below, thus, stand affirmed. Let the lower Court records be sent down to the learned trial Court immediately.