Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 969 (CAL)

SATYENDRA KUMAR MOOKHERJEE v. ALOKE KUMAR BOSE

2011-07-22

TAPAN KUMAR DUTT

body2011
Judgment 1. The learned senior Advocate for the appellant has completed his submission today. 2. Even today none appears on behalf of the respondents to contest the appeal. 3. The predecessor- in-interest of the present appellant filed a suit for eviction against the respondents, inter alia, on the ground of default in payment of rent, causing damage to the suit property and on the ground of reasonable requirement for own use and occupation. The learned trial Court found that the plaintiff/landlord has failed to prove the ground of default in payment of rent and also the ground of causing damage to the suit property. But the learned trial Court after considering the evidences on record including the Commissioner's Report and the pleadings of the parties decreed the suit for eviction on the ground of reasonable requirement for own use and occupation. The learned Trial Court also found that the notice of suit was valid and legal and it was served upon the defendants. The learned trial Court in its judgment found that the plaintiff did not have any alternative suitable accommodation and that the plaintiff genuinely required the suit premises for meeting additional requirement. The learned Trial Court came to a finding that the evidence of P.W.1 shows that he has business which he operates from his home and he needs larger space for the said purpose. The said witness also produced a large number of documents in support of the case of the plaintiff. The learned trial Court also came to the conclusion that even if the landlord has some share in some joint properties the claim of the landlord cannot be negatived. The learned trial Court, taking into consideration the number of rooms in occupation by the plaintiff and his requirement, decreed the suit. The said suit was filed in the year 1995 and it was numbered as Title Suit No. 187 of 1995 but' subsequently it was renumbered as Title Suit No. 45 of 2002. The learned trial Court passed the decree of eviction on 29.06.2005. Challenging such ejectment decree the defendant/appellant filed Title Appeal No. 129 of 2005 and the learned Lower Appellate Court by judgment and decree dated 28.02.2006 allowed the said title appeal and set aside the judgment and decree of the learned Trial Court. 4. The learned trial Court passed the decree of eviction on 29.06.2005. Challenging such ejectment decree the defendant/appellant filed Title Appeal No. 129 of 2005 and the learned Lower Appellate Court by judgment and decree dated 28.02.2006 allowed the said title appeal and set aside the judgment and decree of the learned Trial Court. 4. The learned Lower Appellate Court did not disagree with the learned Trial Court on the latter's findings with regard to the issue of default in payment of rent and causing damage to the suit property. The learned Lower Appellate Court, however, disagreed with the finding of the learned Trial Court on the point of service of notice of suit and also on the point of reasonable requirement for own use and occupation. 5. With regard to the issue regarding the service of notice of suit the learned Lower Appellate Court did not upset the finding of the learned trial Court with regard to the service of notice upon the defendant Nos. 1 and 2 and thus the finding of the learned Trial Court with regard to the service of valid notice of a suit upon the defendant Nos. 1 and 2 was not disputed by the learned Lower Appellate Court. The learned Lower Appellate Court, however, found that the notice of suit upon the defendant No.3 was not served as the postal articles were returned with the endorsement 'not found'. The learned Lower Appellate Court came to the finding that the defendant No.3, Ms. Indira Sarkar, is residing in England with her husband and she has appeared in the learned Trial Court through her constituted Attorney. It will thus appear that the defendant No.3 did have knowledge of the suit. The question is whether the notice of suit which was due to be served upon the defendants prior to the suit was served upon the defendant No.3 or not? In so far as the original plaintiff is concerned, it appears that he was aware only of the address of the defendants as indicated in the notice itself. There is nothing on record to show that the defendant No.3 before leaving for England intimated the plaintiff about her address in England. Accordingly, the plaintiff had issued the notice of suit to the defendants at the address indicated in the notice. There is nothing on record to show that the defendant No.3 before leaving for England intimated the plaintiff about her address in England. Accordingly, the plaintiff had issued the notice of suit to the defendants at the address indicated in the notice. The learned Advocate appearing on behalf of the appellant has cited a decision reported at AIR 1998 Calcutta 221, wherein a Division Bench of this Court in paragraph 47 of the said reports observed that in case of a joint tenancy a notice to quit may be served upon one of the joint tenants but it must be addressed to all, in order to rope in the other joint tenants in the ejectment suit and unless notice is addressed to all the joint tenants, the joint tenants, who have been left out in such notice, would not be bound by the same. . 6. In the instant case there is no dispute that the notice was addressed-to all the three defendants and the learned Lower Appellate Court also did not disagree with the fact that notice of suit was served, at least, upon the defendant Nos. 1 and 2. 7. In such circumstances, this Court is of the view that the learned Lower Appellate Court should have held that the notice of suit was valid, legal and sufficient and service upon the defendants of such notice was a good one. 8. The learned Lower Appellate Court, it appears from the impugned judgment, did not consider the additional requirement of the plaintiff but such additional requirement of the plaintiff was discussed in details by the learned Trial Court. The learned Trial Court came to a finding that the plaintiff has additional requirement. The learned Lower Appellate Court did not discuss this aspect of the matter and failed to consider the proposed requirement of the plaintiff. The learned Lower Appellate Court considered exhibit 8 which is a monthly licence required for the plaintiffs business and observed that it was procured by P.W. 1 in 2002 but the learned Lower Appellate Court failed to consider exhibit 7 which is also a Municipal Licence in favour of the P.W. 1 and it is dated 11.08.1994. The learned Lower Appellate Court considered exhibit 8 which is a monthly licence required for the plaintiffs business and observed that it was procured by P.W. 1 in 2002 but the learned Lower Appellate Court failed to consider exhibit 7 which is also a Municipal Licence in favour of the P.W. 1 and it is dated 11.08.1994. It will appear from the Trial Court's judgment itself that a number of documents were produced on behalf of the plaintiff in evidence in support of the requirement of his son who' is now the appellant No.2 i.e. P.W. 1, who carries on a business in computer consultancy. The learned Trial Court also found that the P.W. 1 has done certain course and has taken training from NIIT and he had produced his educational papers I and also his licence for doing the job concerned. " 9. Thus we find that the learned Lower Appellate Court by considering exhibit 8 drew an adverse inference against the plaintiff but exhibit 7 which is a document of a period prior to the filing of the suit escaped the notice of the learned Lower Appellate Court. Thus it cannot be said that P.W, 1 had procured licence from the Municipality concerned only for the purpose of creating evidence in the suit. 10. The learned lower Appellate Court laid much emphasis on the fact that the plaintiff did not disclose his right to properties at other places. It appears that P.W 1 was cross examined and in evidence and in cross-examination he stated that his family has been living in the suit premises since 1937 when the suit house was constructed and they have no other house at Lake Market or at Kalighat. He Clearly stated that he had a house at Kalighat previously and they had a share in the joint property but such share has been relinquished in favour of the other relatives. The learned Trial Court considered the evidences of P.W. 1 and found that the P.W. 1 has business which he operates from his home and he needs larger space for the said purpose and that the plaintiff does not have any alternative suitable accommodation. The learned Trial Court also found that by merely saying that the landlord has a share in some joint properties, the claim of the landlord cannot be negatived. The learned Trial Court also found that by merely saying that the landlord has a share in some joint properties, the claim of the landlord cannot be negatived. The defendants/respondents could not prove by way of any evidence that the plaintiff has any alternative suitable accommodation. The learned Senior Advocate, appearing on behalf of the appellant has cited another decision, reported at 2008(2) CLJ 269 , in support of his contention that the landlord is the best judge of his own requirement and he must have a complete freedom in the matter and the Courts should not dictate the landlord as to how and in what manner he should live or. prescribe for him a residential standard of their own. He cited another judgment reported at 2094(3) Cal HN 353 and referred to paragraph 29 of the said reports where the Hon'ble Court observed that when an eviction suit was instituted against a particular tenant on the ground of reasonable requirement of the plaintiff and the members of her family and the ground is proved the landlady is entitled to a decree for eviction. The Hon'ble Court was pleased to observe that it was for the landlady to decide how and in what manner she should live and as such she is the best judge of her requirement. The Hon'ble Court was further pleased to observe that once it is found that the landlady requires additional accommodation, the decree for eviction must follow. In the instant case the learned Trial Court as found that the plaintiff has additional requirement. 11. The learned Advocate for the appellant cited another judgment reported at AIR 1997 (SC) 59, paragraph 18 of the said reports the Hon'ble Court was pleased to observe as follows : "If the appellant believed that the 'Olympus' flat of which her husband was a tenant was not available for occupation as the same was vacated by her husband many years back and was occupied by Sridhar and his family and that it was not possible or convenient for her and her family to go and stay there, it was not absolutely necessary for her to refer to those facts in her plaint. It would have been better if she had referred to those facts but mere omission to state them in the plaint cannot be regarded as sufficient for disentitling her from claiming a decree for eviction, if otherwise she is able to prove that she requires reasonably the suit premises for her occupation. In the instant case the Trial Court has found that the plaintiff has additional requirement and P. W. 1 who is the son of the original plaintiff has stated in his cross-examination that the share in the joint property at Kalighat has been relinquished and they have no other house at Lake Market or at Kalighat. That apart, it seems that P.W. 1 has been running his business from his residence itself for quite some time. If the plaintiff really had a proper accommodation at Kalighat or Lake Market for his son to run his business then in that event the plaintiffs son would have chosen to run his business from the said place. The facts of the case show that the suit holding is a convenient place for the P.W 1 that is the plaintiffs son to run his business of computer consultancy. In view of the judgment reported at AIR 1997 SC 59 which has been discussed above, it appears that the learned lower Appellate Court ran into error in laying much emphasis on the fact that the plaintiff did not disclose the alleged other properties -here according to the plaintiffs son P.W. 1 at one point of time the plaintiff had a share but such share has been relinquished subsequently. 12. In view of the discussions made above, this Court finds that the impugned judgment and decree passed by the learned Lower Appellate Court is not based on the correct legal principles and there is a substantial error of law in the impugned judgment and decree• of the learned lower Appellate Court. 13. This Court is also of the view that the learned Trial Court was right in decreeing the suit for eviction on the ground of reasonable requirement after having held that the notice of suit was valid and legally sufficient and the service of notice of the suit was legal and valid. 14. In such circumstances, the present second appeal is allowed. The judgment and decree passed by the learned Lower Appellate Court is set aside. 14. In such circumstances, the present second appeal is allowed. The judgment and decree passed by the learned Lower Appellate Court is set aside. The judgment and decree of eviction passed by the learned Trial Court is restored only with this modification that the defendants/respondents will have time to vacate the suit premises within two months from the date of the decree in the present second appeal. 15. The Lower Court records be sent down to the learned Court concerned.