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2007 DIGILAW 790 (CAL)

Krishna Bhattacharjee v. Goutam Bose

2007-10-11

SADHAN KUMAR GUPTA

body2007
Judgment :- (1) THIS second appeal has been preferred against the judgment and decree dated 4. 8. 2004 and 10. 8. 2004 respectively passed in Title Appeal No. 45 of 1999 by the learned Additional District Judge, Fast Track Court No. Ill, Sealdah, whereby he affirmed the judgment and decree passed by the learned 2nd court, Civil Judge (Junior Division), Sealdah in Title Suit No. 381 of 1991. (2) THE fact leading to this second appeal is that the erstwhile plaintiff nirapada Bose filed Title Suit No. 381 of 1991 claiming therein that the appellant/defendant was a tenant under him in respect of the suit premises. As the defendant/tenant defaulted in paying the rent and as the plaintiff reasonably required the suit premises for his own use and occupation and also as the defendant/tenant was guilty of sub-letting the suit premises, so the plaintiff served a notice upon the defendant/tenant asking him to vacate the suit premises. In spite of receipt of the said notice, as the defendant/ tenant did not vacate the suit premises, so the plaintiff filed the suit praying for eviction of the defendant/tenant and also for recovery of khas possession. (3) THE defendant/tenant contested the suit by filing written statement, wherein he denied the allegations of the plaintiff on the material points. On the basis of the pleadings of the parties, learned Trial Court framed several issues and on perusal of the evidence of the parties and the available documents, he was pleased to pass decree in favour of the plaintiff and directed the eviction of the defendant/tenant from the suit premises. Against the said judgment of the learned Trial Court, the defendant/tenant preferred an appeal before the learned First Appellate Court, who also, by his impugned judgment, was pleased to confirm the decision of the learned Trial Court. Being aggrieved by and dissatisfied with the said decision of the learned first Appellate Court, this second appeal has been preferred by the defendant/ tenant/appellant. (4) AT the time of admission of the second appeal, the Division Bench was pleased to frame the following substantial questions of law:- "(1) Whether the learned Judge of the First Appellate Court committed a substantial error on a question of law by not applying the true test in assessing the question of reasonable requirements by a landlord? (4) AT the time of admission of the second appeal, the Division Bench was pleased to frame the following substantial questions of law:- "(1) Whether the learned Judge of the First Appellate Court committed a substantial error on a question of law by not applying the true test in assessing the question of reasonable requirements by a landlord? (2) Whether the learned Judge of the First Appellate Court erred in the law in passing the decree under Section 13 (1) (ff) of the WBPT act without holding any commission to ascertain the availability of accommodation to the plaintiffs in the second floor of the suit premises and also the plaintiffs accommodation in their tenanted premises. " (5) ON the basis of those two question, learned Advocate for both the sides made their respective submissions. So it is very much clear that so far as this appeal is concerned, we are to confine our attention to the fact as to whether both the Courts below applied the true test of law as has been decided by various judicial decisions in holding that the plaintiff/landlord reasonably required the suit premises for his own use and occupation. (6) IT may be pointed out at the very outset that during the pendency of the suit, the erstwhile plaintiff and his wife died. So their requirements were not taken into consideration by the Courts below. The reasonable requirement of the substituted plaintiffs were taken into consideration and thereafter the decision was arrived at. Let us now see how far the Courts were justified in holding that the substituted plaintiffs required the suit premises reasonably for their own use and occupation. (7) THE question of bona fide requirement of landlord in respect of a suit premises by way of evicting a tenant has been elaborately discussed in the decision reported in 1999 (6) SCC 222 (Shiv Swarup Gupta v. Dr. Mahesh chand Gupta). in this decision the Honble Apex Court clearly laid down the test that should be considered by the Court in arriving at such a conclusion. In Paragraph-13 of the said decision the Honble Apex Court observed:- "chambers 20th Century Dictionary defines bona fide to mean "in good faith genuine". The word "genuine" means "natural not spurious real pure sincere". In Law Dictionary, Mozely and Whitley define bona fide to mean "good faith, without fraud or deceit". In Paragraph-13 of the said decision the Honble Apex Court observed:- "chambers 20th Century Dictionary defines bona fide to mean "in good faith genuine". The word "genuine" means "natural not spurious real pure sincere". In Law Dictionary, Mozely and Whitley define bona fide to mean "good faith, without fraud or deceit". Thus the term bona fide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "required bona fide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The Judge of facts should place himself in the armchair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing on inference that the reahty was to the contrary and the landlord was merely attempting at finding out a pretance or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the Court is satisfied of the bona fides of the need of the landlord for the premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the Court. Once the Court is satisfied of the bona fides of the need of the landlord for the premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the Court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. It short, the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. " (8) ON perusal of the said decision, it is very much clear that there cannot be any straight jacket formula in coming to the conclusion as to whether a person has bona fide requirement of a suit premises for his own use and occupation. It needs a practical approach based on the realities on life. This approach may vary from case to case depending upon the particular fact that is to be considered in a particular case. The Apex Court has clearly observed that while coming to such a decision the Court must be very cautious and the approach in judging the requirement should not be too liberal or too conservative in nature. (9) SAME principle also laid down in the decision reported in 2001 (8)SCC 718 (Kempaiah v. Lingaiah and Ors.). (10) KEEPING in mind the ratio, as decided in those decisions, let us now see whether the plaintiffs could establish that they require the suit premises for their own use and occupation and that requirement is a bona fide and genuine requirement and not merely a wish of the landlords. In this respect, first of all, we may consider what is the requirement of the landlord. Both the Courts below in their judgments described the requirement. In this respect, first of all, we may consider what is the requirement of the landlord. Both the Courts below in their judgments described the requirement. Learned first Appellate Court in its judgment discussed the requirement in detail and came to the finding that two rooms at least were required for accommodating the two sons of the erstwhile plaintiffs, one room for the daughter of Goutam bose and one room for the child of Amit Bose, another son of the erstwhile plaintiff. In addition to that, they require one drawing room, one kitchen, one room for servant and one study room. The present accommodation of the landlords, according to the Courts below, is not sufficient to meet the requirements and as such, both the Courts observed that the plaintiffs had bona fide requirement of the suit premises. Considering the size of the family and considering the bare minimum requirement of the landlord to lead a decent life, it cannot be said that both the Courts were wrong in holding that the plaintiff had reasonable requirement of the suit premises. I find no illegality whatsoever in these findings of the learned Courts below. (11) LEARNED Advocate for the appellant argued that the plaintiff/landlord was guilty of concealment of material fact and as such, they are not entitled to get an order of eviction, as prayed for in the suit. In this respect, learned advocate for the appellant relied upon the decision reported in AIR 1992 Caj 148 (Lakshman Chandra Saha v. Smt. Bansari Mukherjee). In Paragraph-8 of the said decision, in fact, the learned Division Bench was of the opinion that as the plaintiff did not make a full disclosure regarding his present accommodation and did not allow the commissioner to inspect the premises in question, so the prayer of the plaintiff/landlord for passing an order of eviction should be rejected. I have gone through the said decision. It appears in the said decision the fact is completely different. There was intentional non-disclosure of the fact and the actual accommodation was not brought to the notice of the Court. In addition to that in the said case the commissioner was deliberately not allowed to inspect the rooms, which were in possession of the landlord. By citing the decision reported in 1995 (2) Cal LJ 496 (Amar singh Saini v. R. Chand and Anr.). In addition to that in the said case the commissioner was deliberately not allowed to inspect the rooms, which were in possession of the landlord. By citing the decision reported in 1995 (2) Cal LJ 496 (Amar singh Saini v. R. Chand and Anr.). Learned Advocate for the appellant argued that it was obligatory on the part of the plaintiff/landlord to get all his accommodation inspected by appointing a local inspection commissioner. According to the learned Advocate for the appellant, the plaintiffs did not disclose before the Court that they had accommodation in the second floor of the suit premises and that the commissioner was not allowed to inspect the said second floor. As such, he argued due to this deliberate suppression of fact and deliberate intention on the part of the landlord not to give the clear picture to the Court, the landlord was not entitled to get an order of eviction and the learned Courts below were not at all justified in ignoring this fact. In this respect, it may be pointed out that so far as this present suit is concerned, defendant was examined as a witness. In his evidence this defendant admitted that in the second floor there is an asbestos shed and one kitchen. This accommodation cannot, under any circumstance, be considered to be adequate accommodation available to the landlords in order to meet their reasonable requirements. It is alleged by the tenant that the commissioner was not allowed to inspect the said second floor. But the commissioner stated in his evidence that he did not inspect the second floor as there was no direction to that effect upon him by the Court, who issued the writ. Learned advocate for the appellant vehemently argued that it is obligatory on the part of the landlord to get the said accommodation inspected by appointing a commissioner and as no such step was taken, so an adverse presumption should be taken against the landlord. It appears that the First Appellate court in its judgment took into consideration this part of the argument. I fully agree with the observation of the learned First Appellate Court that there was any such accommodation, as alleged by the tenant, then there was no reason for the tenant not to pray for inspection of that second floor of the suit premises. I fully agree with the observation of the learned First Appellate Court that there was any such accommodation, as alleged by the tenant, then there was no reason for the tenant not to pray for inspection of that second floor of the suit premises. After all, when a person is alleging that the accommodation is available in the second floor, which was denied by the other side, then onus lies upon that person who is claiming that there was sufficient accommodation in the second floor of the suit premises to meet the requirement of the landlords. Since the plaintiffs/landlords have discharged their preliminary onus, it was obligatory on the part of the defendant/tenant to get that second floor inspected by appointing a commissioner. As the tenant/defendant did not take any such step, so this argument of the learned Advocate for the defendant/ appellant cannot be accepted at this stage. (12) IT has further been argued by the learned Advocate for the appellant/tenant that admittedly the plaintiffs/landlords have a rented accommodation elsewhere and since that accommodation is more than sufficient, so the courts below were not justified in decreeing the suit in favour of the plaintiffs/ landlords by holding that the plaintiffs reasonably required the suit premises for their own use and occupation. But admittedly it appears that the said accommodation is only a tenanted accommodation in favour of the plaintiffs/ landlords. They were using the same as tenants. It is the settled position that the tenanted accommodation is always vulnerable and it is always under threat of eviction. When the plaintiffs/landlords have their own accommodation available in the suit premises, so they can always claim that they should be given possession of the said premises. There is no such law that the landlord/ owner could be deprived of using his own premises in order to accommodate the tenant although, the landlords are in a position to establish that they are badly in need of accommodation and that need can only be satisfied by way of evicting the defendant/tenant from the suit premises. The claim, as made by the plaintiffs/landlords in this respect, cannot be said to be a mere wish, as claimed by the learned Advocate for the defendant/appellant. The claim, as made by the plaintiffs/landlords in this respect, cannot be said to be a mere wish, as claimed by the learned Advocate for the defendant/appellant. It was not the intention of the legislature that the landlord/owner must allow the tenant to live by way of sacrificing his comfort and to live in a difficult situation although, he is/was the owner of the concerned suit premises. In this respect i fully agree with the finding of the learned First Appellate Court. Since it has been established that the need of the plaintiff/landlord is genuine and not merely a wish, so both the Courts below rightly passed the decree for eviction against the defendant/appellant. (13) I have already pointed out that both the Courts below have held that the plaintiff is entitled to get decree for eviction against the defendant/ appellant and in arriving at such a decision all relevant factors were taken into consideration. (14) IN the decision reported in 2007 (1) SCC 546 (Gurdevkaur and Ors. v. Raki and Ors.) Honble Apex Court clearly observed that the scope of interference in second appeal is limited and does not permit interference with the concurrent findings of fact. It has been further observed by the Honble apex Court that a Court of second appeal is not competent to entertain questions as to the soundness of the findings of facts by the Courts below, however, unsatisfactory the reasoning might be. Even in that case also law does not permit the High Court to interfere in the second appeal and the finding of fact, as arrived at by both the Courts below, should prevail. (15) SO far as this suit is concerned, it appears that both the Courts below, after observing all the necessary tests, came to the conclusion that the plaintiffs/landlords could establish that they had bona fide requirement of the suit premises and they required the said premises reasonably for their own use and occupation. I find that both the Courts arrived at such a decision after considering the materials-on-record and as such, I do not find any reason whatsoever to interfere with the said concurrent findings of the Courts below. The substantial questions, as framed in this appeal, are answered accordingly. (16) IN the result, the appeal and the same is dismissed on contest but without cost. The judgment and decree dated 4. 8. 2004 and 10. 8. The substantial questions, as framed in this appeal, are answered accordingly. (16) IN the result, the appeal and the same is dismissed on contest but without cost. The judgment and decree dated 4. 8. 2004 and 10. 8. 2004 respectively passed in Title Appeal No. 45 of 1999 by the learned Additional district Judge, Fast Track Court No. Ill, Sealdah, is confirmed. (17) SECOND a copy of this judgment along with L. C. R. to the Courts below at once for information and necessary action.