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2008 DIGILAW 694 (CAL)

Mahamaya Dasgupta v. Karnani Properties Ltd.

2008-07-15

PARTHA SAKHA DATTA

body2008
JUDGMENT The appeal is of the plaintiffs who assailed the judgment and decree dismissal dated 24.07.1991 passed by learned Additional District Judge, 14th Court, Alipore affirming thereby the judgment and decree dated 30.03.1987 passed by learned Assistant District Judge, 3rd Court, Alipore in T.S. No. 112 of 1961 dismissing the suit for eviction. 2. The suit was instituted on 23.12.1961 by the original plaintiff Sudhindra Nath Dasgupta who having died his heirs and legal representatives were substituted on 23.11.1962. The suit premises is the ground floor and the first floor of the premises No. 23/21 Gariahata Road. It was tenanted to a company i.e. M/s. Karnani Properties Ltd. at a monthly rental of Rs. 750/- per month. The reasonable requirement of the plaintiffs for their own use and occupation and for use and occupation of the members of his family was the principal ground of eviction. The other grounds were of default in the payment of rent since July 1961, and of waste and negligence committed by the defendant in material deterioration of the condition of the premises because of unauthorized constructions, additions or alterations therein. 3. The defendant/company in its written statement denied the plaint narrative to be true. It has been contended that the plaintiff's alleged reasonable requirement is not a bona fide one and the accommodation available to the plaintiffs in their premises at 24 Ripon Street, Calcutta - 16 was quite sufficient for the members of the family of the plaintiffs. 4. Initially the suit was decreed in favour of the plaintiff and against such decree the defendant preferred appeal before the learned Additional District Judge, 7th Court, Alipore who sent back the suit on remand with certain directions for consideration on the issue of reasonable requirement. Then the learned Trial Court heard the suit and again passed a decree upholding the ground of reasonable requirement of the plaintiff. The defendant preferred appeal before the High Court which was numbered as Appellate Decree No. 1350 of 1970 and by order dated 24.08.1979 sent back the case on remand for retrial of the suit by framing two additional issues i.e. (i) whether after the death of the original plaintiff the substituted plaintiffs still require the suit premises reasonably for their own use and occupation and (ii) whether the present plaintiffs are in possession of any other reasonably suitable accommodation. Upon third remand evidence was taken by the learned Trial Court on the additional issues framed by the High Court and the suit was heard afresh. The learned Trial Court dismissed the suit on contest on the ground that the accommodation available with the plaintiff in their own residential premises was sufficient and there was no reasonable requirement of the plaintiffs of the suit premises. 5. Against this judgment and decree of dismissal dated 30.03.1987 a Title Appeal being T.A. No. 472 of 1987 was preferred before the learned Additional District Judge, 4th Court, Alipore who by his judgment and decree dated 24.07.1991 dismissed the appeal and thereby confirmed the judgment and decree of dismissal of the suit recorded by the learned Trial Court. 6. In the circumstances, the plaintiffs/appellants have preferred this appeal on the ground inter alia that both the learned Courts below erred in law in not considering the reasonable requirement of the plaintiffs in the suit premises and have mis-appreciated the report and the evidence of the learned Advocate Commissioner who held local inspection concerning the existence of a printing press in the basement floor at 24, Ripon Street, Calcutta-16 and proceeded to decide the suit on mere surmise and conjecture. The only substantial question of law which has been involved in the appeal is whether the learned First Appellate Court committed illegality in holding that the plaintiffs do not reasonably require the suit premises. In fact, this is the only point canvassed in the appeal in terms of the memo of appeal which was presented. The issues relating to default and commission of waste and negligence notice have not been raised by the appellant herein so much so that the only point worth considering is whether both the learned Courts below committed illegality in holding that the plaintiffs could not prove that they reasonably require the suit premises for their own use and occupation. 7. The issues relating to default and commission of waste and negligence notice have not been raised by the appellant herein so much so that the only point worth considering is whether both the learned Courts below committed illegality in holding that the plaintiffs could not prove that they reasonably require the suit premises for their own use and occupation. 7. The point worth mentioning is that during the pendency of the appeal the appellants filed before this Court an application being C.A.N. No. 5232 of 2008 praying for amendment of the plaint under Order 6 Rule 17 read with Section 151 of the C.P.C. to aver that at present the family members of the plaintiffs have increased to 13 and they require 14 rooms which are not available with the plaintiffs in their present residential accommodation at 24, Ripon Street, Calcutta-16. The other part of the amendment is that the building at 24, Ripon Street, Calcutta-16 is in dilapidated condition and it has become inhabitable as at any time the building may collapse. Such dilapidated structure of the building was declared dangerous by the C.M.C. who issued a notice under Section 411 (1) of the Calcutta Municipal Act, 1980 to the owners/occupiers of the building and one such notice was affixed on the wall of the building for public information. The plaintiffs as per advice of the concerned Department of the C.M.C. engaged one Mr. Dipankar Majumder (L.B.S.) attached to C.M.C. who visited the premises at 24, Ripon Street, Calcutta 16 and made a report of such inspection of the dilapidated building. He in his letter dated 13.09.2002 observed that the building was in a precarious position. The building was years old which has been declared as dangerous by C.M.C. and as annexed to the application under Order 6 Rule 17 of the C.PC. The plaintiff produced notice dated 06.01.2003 issued by C.M.C. (Annexure-A) and the inspection report of L.B.S. (Annexure-B). Third ground was that premises No. 24, Ripon Street is unfit for accommodation of any person for residential purpose. The ground floor rooms are not at all habitable and water continuously leaks from the upper floor inside the rooms of the ground floor and the height of the rooms in the ground floor are only 6 ft. Third ground was that premises No. 24, Ripon Street is unfit for accommodation of any person for residential purpose. The ground floor rooms are not at all habitable and water continuously leaks from the upper floor inside the rooms of the ground floor and the height of the rooms in the ground floor are only 6 ft. 15 colour photographs have been annexed to the application under Order 6 Rule 17 of the C.P.C. to picture before the Court how and in what manner the different parts of the building at 24, Ripon Street, Calcutta - 16 have become dilapidated. A notice dated 06.01.2003 was issued by the Chief Insecure Building Surveyor asking the occupier/owner "(i) to demolish the dangerous portion, (ii) to secure the repairable portion." 8. Mr. Copal Chandra Ghosh, learned Advocate appearing on behalf of the appellants submitted that in view of the changed circumstances as are brought out in C.A.N. No. 5232 of 2008 necessitating amendment of the plaint under Order 6 Rule 17 of the C.P.C. it has been now necessary for unavoidable remand of the suit again to the learned Trial Court for re-examination of the matter as to whether in view of increase in the number of the members of the family of the plaintiffs reasonable require the suit premises or not; and secondly it is necessary to consider whether in view of the notice dated 06.01.2003 issued by the C.M.C. asking for demolition of the dangerous portion of the building and to secure the repairable portion a finding by the learned Trial Court as to the condition of the building is necessary, and since finding on the two points is impossible to be arrived at without oral or documentary evidence this Court may direct for retrial of the suit. 9. Mr. Ghosh further criticized the findings of the learned Trial Court as also the learned Appellate Court below on the issue of reasonable requirement of the suit premises on the ground that both the Courts below failed to appreciate that the ground floor of the premises has been used for carrying on business of the printing business and merely because of the fact that at the time of inspection of the learned Advocate Commissioner no business activities could be found out it cannot be said that such business was non-existent since long ago. Further, the learned Courts below were erroneous in holding that some business machineries may be brought down to the ground floor in order to make room for the plaintiffs to have extended accommodation in the first floor. It has also been contended that the learned Courts below erroneously found no justification of reasonable requirement of the suit premises by the plaintiffs on the ground that there were good number of rooms available to occupy in the ground floor and occupation of those rooms would make the reasonable requirement non-existent. For, the report of the learned Advocate Commissioner makes it explicit that the height of the rooms in the ground floor was only 6 ft. and given that height it is quite preposterous to hold that such rooms with the height at 6 ft. are really meant for human habitation and given that the suit premises at 23/21, Gariahata Road is quite a spacious one convenient to the plaintiffs for the reasonable comfortable living they cannot be asked to accommodate themselves in uncomfortable and inconvenient accommodation in the ground floor more particularly when the said ground floor has been used for carrying on business of printing. Furthermore, Mr. Ghosh argues that when the suit was instituted the requirement of the plaintiffs was such as it was pleaded in the original plaint but now with the passage of time the number of the members of the family of the plaintiffs having increased to 13 their total requirement is of 14 rooms which are not at all available in the plaintiff's present accommodation at 24 Ripon Street, Kolkata - 16. Therefore, by no amount of logic the ground of reasonable requirement can be defeated. 10. Mr. Ajoy Krishna Chatterjee, learned Senior Advocate appearing on behalf of the respondent has vehemently opposed the submission of Mr. Ghosh for sending the suit back on remand for retrial on the ground that even if it is accepted that the present strength of the family of the plaintiffs is 13 still then without controverting such proposed amendment it can be shown that such requirement is still available in the building at 24, Ripon Street, Kolkata - 16 and in view thereof there is no justification for bringing out evidence in the matter of finding out the number of the family members of the plaintiffs, vis-a-vis, the extent of accommodation now required. Mr. Mr. Chatterjee has taken me to the report of the learned Advocate Commissioner extensively with reference to the present alleged requirement of the plaintiffs in support of his submission that no fresh evidence is at all necessary on the ground of reasonable requirement of the premises in question. Mr. Chatterjee has submitted further that the second aspect of the proposed amendment i.e. threat of demolition of the building by the C.M.C. is an illusory ground because such notice dated 06.01.2003 was a procured one at the behest of the plaintiffs with a view to strengthen the case of the plaintiffs during the pendency of the appeal. It has been argued that it is not that the C.M.C. on its own motion came to the premises for the purpose of inspection to find out whether the premises at 24, Ripon Street, Kolkata-16 is in a dilapidated condition or not. It was the plaintiff who issued a letter to a Licenced Building Surveyor on 01.09.2002 requesting him to visit the suit premises and at his request one Dipankar Majumder (L.B.S.), C.M.C. allegedly came to the premises and his letter dated 13.09.2002 (Annexure-B to the C.A.N. No. 7260 of 2003) would reveal that at the request of the plaintiffs he visited the premises No. 24, Ripon Street, Kolkata - 16 on 05.09.2002 and inspected the ground floor and the first floor of the building which was dilapidated and can fall down at any moment and on the basis of such report the Municipal Authority issued a notice under Section 411 (1) of the Act. But in the said notice it has not been specified as to which portion of the building requires to be demolished and which portion can be got repaired. Mr. Chatterjee argues that even five years after the issuance of the letter the Municipal Authority did not take any further action pursuant to such notice, as such the alleged new fact of the dilapidated structure of the building is a mala fide one introduced during the pendency of the appeal for the purpose of eviction. Mr. Mr. Chatterjee argues that even five years after the issuance of the letter the Municipal Authority did not take any further action pursuant to such notice, as such the alleged new fact of the dilapidated structure of the building is a mala fide one introduced during the pendency of the appeal for the purpose of eviction. Mr. Ghosh replied that it is true that it was the plaintiffs who contacted the Licenced Building Surveyor of the Corporation to invite the attention of the Corporation to the existing dilapidated condition of the building and merely because the notice was issued only pursuant to inspection made at the behest of the plaintiffs it cannot be said that such notice was purposively obtained with a motive of facilitating a possible decree of eviction. 11. It has been submitted that the defendant has not filed any affidavit-in-opposition to the application under C.A.N. No. 5232 of 2008 and the C.A.N. No. 7260 of 2003 so that defendant cannot plead that the facts pleaded in these two applications are mala fide. Therefore, when such fact has been brought to the notice of the Court, the Court cannot say that the applications containing such facts are mala fide only on the ground that they were filed during the pendency of the appeal. It has been submitted further by Mr. Ghosh that it is the plaintiffs who have suffered much because of long pendency of the suit but it is the plaintiffs who pray that the building should be inspected by any Advocate Commissioner or any Engineer Commissioner as may be appointed by the learned Trial Court to ascertain whether the plaintiffs contention as to the dilapidated structure of the building is bona fide and true and if in the process some more time are exhausted then the defendant in no way will be prejudiced, but the truth may come out. Mr. Chatterjee on the other hand submitted that 15 photographs annexed to the C.A.N. No. 5232 of 2008 do not show that the building has fallen down or is in precarious position. Only plastering of the outer wall has been erased. 12. The learned Advocate Commissioner who inspected the building between 04.08.1978 and 09.08.1978 stated in the report that the condition of the building was good. Only plastering of the outer wall has been erased. 12. The learned Advocate Commissioner who inspected the building between 04.08.1978 and 09.08.1978 stated in the report that the condition of the building was good. In the first floor he found the room No. 1, 12' x 3'8", north-south into east-west on the southern corner of the first floor which was a vacant room. Room No. 2 measures 13'3" x 13'1". It was found used as bed room. On the eastern side of room No. 2 there is room No. 3, 14’7" x 27'9" which was found used partly as bed room and partly as drawing room. Room No. 4 measuring 13'1" x 13'2" is also used as bed room. Room No. 5 is on the eastern side of the room No. 3 having three doors and one window measuring 13' x 12'11" is also used as bed room. A covered passage on the eastern side of the premises leading to the bathroom in the south and a room on the north is partly partitioned by glass door and is used as kitchen and Thakurghar. A passage is 29'1" in south to north and 5 ft. is east to west. Room No. 5 (wrongly typed as room No. 6) is 13'2" x 13'3" and in this room the learned Advocate Commissioner found that two units of composing stands with type cases and composing matters are found stacked. Situated on the north-eastern side of the premises is room No. 6 (wrongly typed as room No. 7) which measures 11'4" x 10'7". It was found used for office purpose. The covered space on the northern side of the premises leading to the main staircase and hall ghar and kitchen measures 16'2" in east-west and 8'5" into north-south. In this space some furniture were found stacked. There is a kitchen on the north-west corner of the premises adjacent to the covered space measuring 9 ft. in east to west and 6'5" into north to south. According to the learned Advocate for the respondent room No. 5 and room No. 6 can very well be used as bed room and unnecessarily these two rooms have been left unoccupied by stacking of furniture and press materials which are of no use following business being defunct as has been found by the learned two Courts below. According to the learned Advocate for the respondent room No. 5 and room No. 6 can very well be used as bed room and unnecessarily these two rooms have been left unoccupied by stacking of furniture and press materials which are of no use following business being defunct as has been found by the learned two Courts below. There was further found an open space between the first floor room and big hall measuring 13'1" x 6'2" which also has remained unused. In the ground floor there is room No. 1 measuring 13'10" in east-west and 8 ft. in north-south and the said room was used as office room. Again there is room No. 2 in the ground floor measuring 9'1"x 8' which is also used as office room. Room No. 3 in the ground floor measuring 12'9" in cast-west and 25'1" into north-south was found fitted with a cot, some paper racks, furniture and book-shelves. According to Mr. Chatterjee, this room also can be used conveniently as bed room. Room No. 4 in the ground floor which is 12' x 4' in both length and breadth each is fitted with press articles. Room No. 5 of the ground floor measuring 12'9"x 12'10" is also found filled with press articles. In the ground floor there is room No. 6 measuring 12'6" x 12'6". There are two machines and printing papers. Similarly, room No. 7 measuring 12'7"x 12'7" has been filled with one Lino machine of standard size and one steel almirah. A passage on the western side in the ground floor leading to this room measuring 3'7"x 12'5" is used as machine room. There is room No. 8 measuring 17'10" x 16' having asbestos shed on the top which is full of machines and press articles. Room No. 9 measuring 31' x 10'6" is full of printing machine papers and press articles. There is an open space in front of the ground floor in the western side measuring 14' x 17'3". There is room No. 8 measuring 17'10" x 16' having asbestos shed on the top which is full of machines and press articles. Room No. 9 measuring 31' x 10'6" is full of printing machine papers and press articles. There is an open space in front of the ground floor in the western side measuring 14' x 17'3". Learned Advocate for the respondent submitted that given the big size of the rooms in the ground floor and given that both the learned Courts concurrently found that no trace of business activities could be found out, it would appear that all the members of the family of the present plaintiffs, even if they are 13 in number, can be accommodated in the ground floor and the first floor of the building. Mr. Chatterjee argued that with a view to securing a decree for eviction the entire ground floor premises has been purposively used by stacking printing materials and machines although business activities had ceased to function long ago. Mr. Ghosh, appearing for the appellant submitted that it is true that at the time of inspection of the premises the learned Advocate Commissioner did not find the machines in operation and the business activities being carried out, but it does not mean that the business has been wound up. Secondly, it has been submitted that the height of the rooms in the ground floor is only 6 ft. which is not at all usable conveniently as bed room or for occupation of family. To this, Mr. Chatterjee added that the Advocate Commissioner stated in his cross-examination that he had entered into the ground floor rooms of the premises but the roof of the ground floor was found 2"/3" above his head and he is a man of 6 ft. height. Thus, according to Mr. Chatterjee when the height of the rooms in the ground floor is approximately 6'2'/6'3" it cannot be said that the rooms in the ground floor cannot be occupied. The learned Advocate Commissioner stated in his cross-examination that he did not see the press functioning on any of the days of holding of local inspection. He found machine only in one of the rooms of the first floor, and in the ground floor there is sufficient room for keeping that machine. The learned Advocate Commissioner stated in his cross-examination that he did not see the press functioning on any of the days of holding of local inspection. He found machine only in one of the rooms of the first floor, and in the ground floor there is sufficient room for keeping that machine. He did not find anybody to operate any machine at the time of his inspection and no employee was found. 13. In the context of the above evidence coupled with the alleged new facts relating to the size of the member of the family and the alleged dilapidated condition of the building, I do think that further evidence should be brought in. But since the plaintiffs have brought to the attention of the Court that the building at 24 Ripon Street, Kolkata - 16 has been dilapidated and in support of such contention Corporation's notice is produced, it is but proper that in order to find out whether the building requires demolition in alleged dangerous portion or requires repair in repairable portion inspection should be had, notwithstanding the fact that the applications giving out such subsequent facts have been filed during the pendency of the appeal. The notice of the C.M.C. does not specify which portion has been found dangerous and which portion requires repairing. It is necessary to ascertain whether there is really any portion requiring demolition or any portion requiring repairs. It is necessary to find out whether the plea of demolition of a portion of a building and that of necessity of repair has been made only to justify eviction with the plea that it is no longer possible for the members of the family of the plaintiff to reside in such alleged dilapidated structure. It is difficult to find out whether such a plea is bona fide or mala fide. But when alleged facts have been pleaded it is but found expedient to have the building inspected by an Engineer Commissioner. In the circumstance, it is unwise to make any finding on the question of reasonable requirement at present. 14. Though the learned Advocate for the appellant prayed for an open remand of the suit, I decline to do so having regard to the fact that the suit has entered 48 years of its existence and it should be nobody's pleasure and it should go on for any further length of time. 15. 14. Though the learned Advocate for the appellant prayed for an open remand of the suit, I decline to do so having regard to the fact that the suit has entered 48 years of its existence and it should be nobody's pleasure and it should go on for any further length of time. 15. Accordingly, without disposing of the appeal finally at the moment and without any finding with regard to the question whether the plaintiffs accommodation at 24 Ripon Street, Calcutta - 16 is sufficient I order under Order 41 Rule 25 of the C.P.C. that the learned Trial Court shall frame the following issues:- (i) Whether at all or to what extent, if any, the premises at 24, Ripon Street, Kolkata-16 is dilapidated or not. (ii) Whether any part of the premises requires immediate repairing or not. (iii) Whether at all or to what extent, if any, any part of the building is unsafe for human inhabitation. and take evidence oral and/or documentary thereon after appointing an Engineer Commissioner to inspect the premises No. 24, Ripon Street, Calcutta - 16 and obtaining a report from him on the points as above and also on issue No. 3 do the plaintiffs reasonably require the suit premises?' 16. The C.A.N. No. 7260 of 2003 praying for accepting the Annexure-A thereto which is a notice of the Calcutta Municipal Corporation and the letter of Dipankar Majumder (L.B.S.) dated 13.09.2002 stands disposed of. The said annexure may be tendered in evidence in accordance with the law before the learned Trial Court. 17. C.A.N. No. 5232 of 2008 under Order 6, Rule 17 read with Section 151 of the C.P.C. is allowed. The respondents herein may file additional written statement against the said petition. 18. The learned Trial Court after taking additional evidence shall return his finding to this Court by 26th September at the latest. 19. A copy of this judgment shall be sent to the learned Trial Court, Alipore for information and necessary action. Xerox certified copies of this judgment, if applied for, be given to the parties as expeditiously as possible.