Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 140 (CAL)

Hari Shankar Ghosh @ H. S. Ghosh v. Sukumar Dey

2008-01-31

SADHAN KUMAR GUPTA

body2008
Judgment Sadhan Kumar Gupta, J. This Second Appeal has been preferred against the judgment and decree passed by the Civil Judge (Senior Division) 2nd Court at Howrah in Title Suit no. 156 of 1993 on 19th July, 2004 whereby the judgment and decree dated 25/5/1993 and 8/6/1993 respectively, passed by the ld. Munsif, 2nd Court, Howrah in Title Suit no. 91 of 1987 was confirmed. The fact leading to filing of the suit in question is that the plaintiffs filed the said suit praying for recovery of possession and eviction of the defendant/appellant and for mesne profit on the ground of default and reasonable requirement. It is the case of the plaintiffs/respondents that they are the owners of the suit property situated at 157, Kasundia Road, now known as 157, Swami Vivekananda Road. The defendant was a tenant in respect of the said premises under the plaintiffs at a monthly rent of Rs.150/-payable according to English calendar. The plaintiffs have claimed that they require the suit premises for their own use and occupation. It is the case of the plaintiffs that they are now residing as a licensee in the house of their grandfather situated at 42, Swami Vivekananda Road and the said license has already been revoked and a suit has been filed against the plaintiffs for eviction. According to the plaintiffs they have got no other reasonable suitable accommodation elsewhere. It is also the case of the plaintiffs that the defendant failed to pay the rent since January, 1987. Under such circumstances, the plaintiffs sent a notice to the defendant asking him to vacate the suit premises. But as the defendant/tenant failed to vacate the suit premises within the period prescribed, so the plaintiffs had to file the suit against the said defendant praying for his eviction from the suit premises. The defendant/tenant contested the suit by filing written statement. It was denied that the plaintiffs are residing in the house of their grandfather as licensee. The claim of the plaintiffs that the defendant defaulted in paying the rent was also denied. The defendant has claimed that the plaintiffs have sufficient accommodation in the premises where at present they are residing and it is also claimed by the defendant/tenant that the plaintiffs have reasonable suitable accommodation elsewhere. The defendant prayed for dismissal of the suit. Upon the above pleadings, the ld. The defendant has claimed that the plaintiffs have sufficient accommodation in the premises where at present they are residing and it is also claimed by the defendant/tenant that the plaintiffs have reasonable suitable accommodation elsewhere. The defendant prayed for dismissal of the suit. Upon the above pleadings, the ld. Trial Court framed several issues and thereafter, after considering the materials on record, the suit was decreed in favour of the plaintiffs on 25/5/1993. Being aggrieved by the said judgment, the defendant preferred an appeal before the ld. Additional District Judge, 2nd Court, Howrah, who was pleased to allow the said appeal by way of setting aside the judgment and decree, as passed by the ld. Trial Court so far as the issue no. 5 was concerned. However, the ld. First Appellate Court was pleased to confirm the finding of the ld. Munsif in respect of the other issues. Ld. First Appellate Court was pleased to send back the suit on a limited remand to the court below for a fresh decision in respect of the issue no. 5 only. The plaintiffs, being aggrieved by the said order of remand, as passed by the ld. First Appellate Court, moved the High Court. By the order dated 18/2/2000 the High Court directed the ld. First Appellate Court to pass a limited order of remand under Order 41 Rule 25 of the Code of Civil Procedure by retaining the main appeal and sending the record back to the ld. Trial Judge enabling the parties to lead additional evidence. While passing such judgment, ld. Single Judge of this court directed that the evidence will be taken on the following questions: (a) Whether the plaintiffs have any accommodation available in 42/1/1, Swami Vivekananda Road, Howrah? (b) Whether any of the tenants of the suit premises has vacated the property after the acquisition of interest by the plaintiffs of the said property? On the basis of those questions, the matter was sent back to the ld. Munsif for determination of those questions. Ld. Trial Court, after consideration of the materials so available, held that the plaintiffs have available accommodation in the premises situated at 42/1/1, Swami Vivekananda Road, Howrah as the tenants vacated the suit premises after the plaintiffs acquired interest in the said property. Such finding of the ld. Trial Court was placed before the First Appellate Court i.e. the court of the ld. Such finding of the ld. Trial Court was placed before the First Appellate Court i.e. the court of the ld. Civil Judge (Senior Division), 2nd Court, Howrah. The then ld. First Appellate Court, by his judgment dated 20/5/2000 was pleased to confirm the finding of the ld. Munsif and allowed the appeal as was pending before him by way of setting aside the judgment and decree of eviction, as passed by the ld. Trial Court on 25/5/1993. As the plaintiffs were aggrieved by the said judgment, so they preferred an appeal before the High Court and the appeal was numbered as S.A. no. 4 of 2001. The ld. Single Judge, by his order dated 14/8/2003, was pleased to dispose of the appeal by way of setting aside the judgment and decree dated 20/5/2000, as passed by the ld. Civil Judge (Senior Division) and again sent back the appeal on remand to the ld. First Appellate Court with a direction to rewrite the judgment as per the questions, as framed by the High Court by its judgment and order dated 18/2/2000 in F.M.A. no. 175 of 1998 on the basis of the evidence and materials on record. As per the said direction of this court, the ld. Civil Judge (Senior Division), 2nd Court, Howrah was pleased to pass the impugned judgment by way of rewriting the same on the basis of the available materials on record. By the impugned judgment, the ld. First Appellate Court was pleased to dismiss the appeal and consequently she was pleased to affirm the judgment, as passed by the ld. Munsif, 2nd Court, Howrah in T.S. no. 91 of 1987 on 25/5/1993. As the defendant/appellant was aggrieved by the said judgment, so this Second Appeal has been preferred. At the time of admission of the appeal, two substantial questions of law were framed. But at the time of hearing of argument, ld. Advocate for the appellant pressed for framing two other questions of law for proper determination of the appeal. After hearing the ld. Advocates for both the sides and after consideration of the materials on record, such prayer was allowed and two more substantial questions of law were framed. In all four substantial questions of law were framed and they are as follows: (a) “Whether the judgment as passed by both the courts below are illegal as those courts did not consider partial eviction? In all four substantial questions of law were framed and they are as follows: (a) “Whether the judgment as passed by both the courts below are illegal as those courts did not consider partial eviction? (b) Whether the judgment of the courts below in respect of the finding in favour of the plaintiffs/respondents that they had reasonable requirement, should be considered to be perverse in nature on the basis of the evidence available on the record? (c) Whether in the absence of any document produced by the plaintiffs after remand showing that Mukul Ghosh and Ashoke Sarkar are still staying in the property as tenants by production of rent receipts or any other documents, the learned court below was justified in setting aside the finding recorded by the learned trial judge. (d) Whether the learned court below was justified in believing the evidence of the Advocate Commissioner who inspected the property after remand notwithstanding the fact that the said Advocate Commissioner would not show the name of the tenants occupying the other premises, namely, 42/1/1, Swami Vivekananda Road.” On the basis of those questions, as framed in connection with this appeal, ld. Advocates for both the sides made their respective submissions. Ld. Advocate for the defendant/appellant first of all argued that the ld. First Appellate Court did not at all take into consideration the finding of the ld. Munsif which was given by him after the remand order was passed while confirming the judgment of the Trial Court dated 25/5/1993. According to him, the ld. First Appellate Court was bound to consider this finding of the ld. Munsif which was given on the basis of the remand order. In support of his contention, ld. advocate for the appellant relied upon the decisions reported in AIR 1923 Cal 521 (Kamini Kumar Deb vs. Durga Charan Nag & Ors.) and AIR 1962 Mysore 61 (Ishwara Bhatta & Ors. vs. Ishwara Bhatta & Ors.). But it appears that the finding of the ld. Munsif on this point, after the remand order, on the basis of the two questions which were framed by Bhattacharjee, J. and the said finding of the ld. Trial Court on those points were upheld by the ld. the then First Appellate Court. It is the admitted position that both those matters i.e. the finding of the ld. Munsif after the remand order and confirmation of it by the ld. Trial Court on those points were upheld by the ld. the then First Appellate Court. It is the admitted position that both those matters i.e. the finding of the ld. Munsif after the remand order and confirmation of it by the ld. First Appellate Court were taken into consideration by the judgment passed by the Hon’ble Justice P.K. Samanta (as His Lordship then was) in S.A. no.4 of 2001. In his judgment Samanta, J. clearly observed that – “Interestingly the findings so arrived at by the Trial Court were not supported by reasons. The court of appeal below also did not record the reasons as to why such findings of the trial court were found favourably by it. In all such considerations, the findings so arrived at by the court of appeal below cannot be sustained. The judgment and decree, as passed by the court of appeal below is, therefore, set aside and the appeal is sent back of remand to the court of appeal below to rewrite the judgment on the questions, as framed by this court by its judgment and order dated 18th February, 2000 made in FMA no. 175 of 1998 on the basis of the evidence and the materials already on record.” This decision of the ld. Single Judge was not challenged by either of the party. As such, in view of such clear direction by the High Court, the ld. First Appellate Court had no other alternative but not to consider the finding of the ld. Munsif which was given after the remand order and the subsequent confirmation of the said finding by the ld. First Appellate Court. The ld. Single Judge of this Court by passing the direction, as quoted above, simply directed the First Appellate Court to rewrite the judgment afresh on the basis of the materials on record. Since the finding of the ld. Munsif and as well as the confirmation order in respect of the said finding, as passed by the ld. First Appellate Court, were already discarded by the High Court, so it was not open for the ld. First Appellate Court to consider the same while rewriting the judgment. I find no illegality in this respect in the impugned judgment so passed by the ld. First Appellate Court. As such, this contention of the ld. advocate for the appellant is not accepted. First Appellate Court to consider the same while rewriting the judgment. I find no illegality in this respect in the impugned judgment so passed by the ld. First Appellate Court. As such, this contention of the ld. advocate for the appellant is not accepted. Ld.Advocate for the appellant further argued that the ld. First Appellate Court while passing the impugned judgment did not consider the relevant evidence. As such, according to him, since it is a case of non-appreciation of the relevant evidence on record, which resulted in failure of justice, the High Court can always interfere in exercise of its power given under Section 100 of the Code of Civil Procedure. In this respect, he has cited decision reported in AIR 1987 (SC) 1484 (Budhwanti & And. Vs. Gulab Chand Prasad) and 1988 (3) SC Journal 61 (Dilbagral Punjabi vs. Sharad Chandra). Ld. Advocate further cited decisions reported in 2005 (12) SCC 303 (Jagannath vs. Arulappa & Anr. ) and 2007 (4) SCC 163 (Chinthamani Ammal vs. Nandagopal Counder & Anr.) in support of his contention that the ld. First Appellate court failed to exercise the jurisdiction, as vested him properly by way of not considering all the materials available in the record. I have taken into consideration all those decisions and the principle, as laid down therein. It is now settled legal position that the finding of fact, as arrived at by the ld. First Appellate Court cannot be interfered with while disposing of a Second Appeal. But at the same time, it is also the settled position now that if it is found that the material evidence has been overlooked or not appreciated or the wrong approach was taken by the court below while disposing of the matter resulting in miscarriage of justice, then it is always open for the High Court to interfere with the matter in exercise of its power under Section 100 of the CPC. There cannot be any hard and fast rule that a finding of fact cannot at all be interfered with in a Second Appeal. In a given case and as per the decisions cited above, the High Court can always interfere if it appears to it that the case was considered by the court below by following a wrong approach and also by way of not appreciating the evidence at all in its proper perspective resulting in failure of justice. In a given case and as per the decisions cited above, the High Court can always interfere if it appears to it that the case was considered by the court below by following a wrong approach and also by way of not appreciating the evidence at all in its proper perspective resulting in failure of justice. Keeping in mind this legal position, let us now see as to whether there is any scope for this Court to interfere into the finding of fact, as arrived at by the ld. First Appellate Court. According to the ld. advocate for the appellant, the ld. First Appellate Court did not consider the material evidence in its proper perspective by way of not adhering to the principle of burden of proof and failed to draw adverse presumption against the case of the plaintiff due to non-production of material evidence, which was in his custody. In this respect he relied upon the decisions reported in AIR 1960 SC 100 (Narayan Bhagwantrao Gosavi Balajiwale vs. Gopal Vinayal Gosavi & Ors.) and 2006 (6) SCC 94 (Standard Chartered Bank vs. Andhra Bank Financial Services Ltd. & Ors.). He argued that the ld. First Appellate Court misread or misunderstood the evidence given by the commissioner. It is also his case that the ld. court below did not take into consideration the fact that one of the tenants who was examined as a witness did not produce the rent receipt or that the counter foil of the rent receipt was not produced by the plaintiff/landlord in order to substantiate his claim that the building in question was occupied by the tenants. It may be pointed out here that the main question that is to be decided in this appeal, is, whether the plaintiff/landlord had any accommodation available at premises no. 42/1/1, Swami Vivekananda Road, Howrah or not. In this respect it may be pointed out that one of the tenants was examined and in his evidence he clearly stated that he was in occupation of the premises. Ld. Advocate for the appellant argued that there are other tenants who were not examined by the landlord and there is no explanation why the other tenants were not examined and for that reason the claim of the plaintiffs/landlords should be disbelieved. Ld. Advocate for the appellant argued that there are other tenants who were not examined by the landlord and there is no explanation why the other tenants were not examined and for that reason the claim of the plaintiffs/landlords should be disbelieved. But at the same time it appears that the defendant/appellant also did not examine any witness on his behalf in order to substantiate that in the said premises there are sufficient vacant accommodation available for the plaintiffs/landlords or that the tenant who was in occupation of that premises already vacated it. If we look into the evidence of DW 1 Hari Shankar Ghosh who is the defendant himself, then it will appear that he admitted in his evidence that one Mukul Ghosh was a tenant in the said holding. Although, the defendant/tenant claimed that Mukul Ghosh vacated the room, still in his cross-examination he clearly admitted that he could not say the date when Mukul Ghosh vacated the room. That apart this witness also clearly admitted by saying “except my statements I have no paper to show that plaintiffs were/are in occupation of the said holding. I have also no paper to show that there are no tenants in the said holding at present”. So, it appears that the defendant/appellant has failed to substantiate his claim that the tenant of the said holding vacated the premises after the filing of the present suit and the plaintiffs are in occupation of the rooms of the premises no. 42/1/1, Swami Vivekananda Road, Howrah. In this respect Ld. Advocate for the respondent drew my attention to the evidence of the ld. advocate commissioner who held the local inspection in respect of that premises. In his evidence ld. commissioner clearly stated that the plaintiffs were not in occupation of any room of the premises no. 42/1/1, Swami Vivekananda Road, Howrah. According to him there were two tenants at the time of inspection of the said holding. This commissioner was cross-examined by the defendant/tenant. But even after cross-examination, her evidence remains unshaken. She clearly denied the suggestion of the defendant/appellant that the plaintiffs were in occupation of room in the said building and that one tenant vacated that premises. According to this witness the inspection of the said premises was done in presence of the parties and their lawyers. This statement of the ld. But even after cross-examination, her evidence remains unshaken. She clearly denied the suggestion of the defendant/appellant that the plaintiffs were in occupation of room in the said building and that one tenant vacated that premises. According to this witness the inspection of the said premises was done in presence of the parties and their lawyers. This statement of the ld. commissioner finds support from the evidence of D.W 1 i.e. the defendant himself. Although, this D.W. 1 claimed that at the time of holding the inspection of that premises, the plaintiffs were in occupation of two rooms of the premises no. 42/1/1, Swami Vivekananda Road, Howrah, still he did not point out the same to the ld. commissioner. There is no explanation for that. It is difficult to understand that if the plaintiffs were in occupation of some rooms in that premises, as claimed by the tenant, then what prevented the defendant/appellant or his ld. advocate to point it out to the ld. Advocate commissioner who held the inspection of the premises. Under such circumstances, it appears to me that the ld. First Appellate Court was perfectly justified in placing reliance upon the report of the ld. commissioner in holding that the plaintiffs were not in possession of any room in the said premises and in coming to the conclusion that the plaintiffs have no reasonable suitable accommodation else where and as such, they required the suit premises for their own use and occupation. The claim of the ld. advocate for the appellant that no reliance should be placed upon the report of the ld. commissioner due to the fact that he could not mention the names of the tenants who were occupying that premises, is not at all acceptable since it is not the business of the ld. commissioner to mention all the names of the persons who were in occupation of the particular premises unless and until his/her attention is drawn to that effect. I have already pointed out that the defendant himself in his evidence stated that the attention of the commissioner was not at all drawn in this respect and as such, I do not think that the ld. commissioner committed any mistake in not mentioning the names of the persons who were in occupation of the premises concerned. The argument, as advanced by the ld. commissioner committed any mistake in not mentioning the names of the persons who were in occupation of the premises concerned. The argument, as advanced by the ld. advocate for the defendant/appellant that the plaintiffs/landlords failed to produce any rent receipt in order to show that the tenants are in occupation of the concerned premises and for that reason adverse presumption should be taken against the claim of the plaintiffs, is also not acceptable. It is not always necessary to prove the occupation of a particular premises by a tenant by producing rent receipt. When other reliable evidence is available in this respect then non production of the counter foil of the rent receipt cannot be a ground for discarding the claim of the plaintiffs in this respect. I have already pointed out that from the report of the ld. commissioner it is very clear that the said premises was in occupation of the tenants and the plaintiffs do not possess any room in that building. So, in view of this clear and reliable evidence, there is no necessity for production of the counter foils of the rent receipt in order to establish this claim of the plaintiff/landlord. To my mind, the ld. First Appellate Court was very much justified in holding that after the filing of the suit no room was vacated by the tenant in premises no. 42/1/1, Swami Vivekananda Road, Howrah and that the said building was in occupation of the tenants. The question, as framed in this respect by the ld. Single Judge of this Court in FMA no. 175 of 1998 were clearly answered by the ld. First Appellate Court and thereby he affirmed the original judgment dated 25/5/1993, as passed by the ld. Trial Court. It may be pointed out here that the ld. Trial Court also by his judgment dated 25/5/1993 was of the opinion that the plaintiffs/landlords could establish that they require the suit premises reasonably and for that purpose they were entitled to get an order of eviction and this finding of the ld. Trial Court was affirmed by the ld. First Appellate Court by its impugned judgment. Trial Court also by his judgment dated 25/5/1993 was of the opinion that the plaintiffs/landlords could establish that they require the suit premises reasonably and for that purpose they were entitled to get an order of eviction and this finding of the ld. Trial Court was affirmed by the ld. First Appellate Court by its impugned judgment. Both the courts below have given a concurrent findings in this respect and this concurrent findings of fact has been arrived at by way of consideration of the material evidence on record and under the circumstances, as discussed above, it cannot be said that the findings, as arrived at by the courts below resulted in miscarriage of justice, as claimed by the ld. advocate for the defendant/appellant, warranting intervention by this court. In my considered opinion, the ld. First Appellate Court rightly affirmed the judgment dated 25/5/1993, as passed by the ld. Trial Court by way of not considering the subsequent judgments, as passed by the ld. Trial Court as well as by the ld. First Appellate Court, after the remand order. It appears that a question was framed, so far as this appeal is concerned to the effect as to whether the judgments, as passed by both the Courts below are illegal as those courts did not consider the question of partial eviction. It may be pointed out here that Mr. Banerjee, on behalf of the appellant, at the time of argument, did not make any submission on this point. Be that as it may, since a question to that effect has been framed, it is incumbent upon this Court to answer the said question in accordance with law. There is no dispute that a court while passing the order for eviction of a tenant in a pending suit, must consider as to whether partial eviction of the tenant from the suit premises would solve the accommodation problem of the landlord. Admittedly, both the courts below did not consider this question. But simply for that reason, I am of opinion that the judgments, as passed by the courts below should not be set aside particularly when the matter is pending since 1987. I have considered the evidence, as available in the record. It appears that it has been held that the plaintiff/landlord had no other reasonable suitable accommodation to accommodate the need of his family members. I have considered the evidence, as available in the record. It appears that it has been held that the plaintiff/landlord had no other reasonable suitable accommodation to accommodate the need of his family members. The rooms which are in occupation of the defendant/tenant appear to be to some extent sufficient for satisfying the need of the plaintiff/landlord. Considering the size of the family of the plaintiff and that of the defendant/tenant, it appears to me that it is not at all practicable to divide the suit premises in order to accommodate both the plaintiff/landlord and the defendant/tenant therein. If that is done, then it will create more complications. Since the need of the plaintiff/landlord can only be satisfied by getting possession of the entire suit premises by way of evicting the defendant/tenant therefrom, I am of opinion that no purpose will be served if an order of partial eviction is passed. Under such circumstances, I do not think it proper to send the matter again to the court below for giving a finding in this respect, when from the materials available on record this court can come to a conclusion on that point. Considering all these aspects, this court is of the opinion that no order of partial eviction in respect of the suit premises should be passed. The question is answered accordingly. Therefore, from my above discussion, I am of opinion that there is no merit in this appeal and the same is liable to be dismissed. In the result, the appeal and the same is dismissed on contest but without cost.