Research › Search › Judgment

Calcutta High Court · body

2012 DIGILAW 432 (CAL)

Dhananjoy Chongdar v. Parul Bala Koley

2012-05-10

TAPAN KUMAR DUTT

body2012
JUDGMENT TAPAN KUMAR DUTT, J. 1. Today learned Advocate for the respondents has made and completed his submissions. Learned Advocate for the appellant has also made his submissions in reply. Hearing is concluded. This court now proceeds to deliver the following judgement. This court has heard the learned Advocates for the respective parties. The facts of the case, briefly, are as follows: The plaintiff/ appellant along with his brother Paresh Chandra Chowngdar jointly purchased the suit holding, that is, 20/1, "R" Road, P.O. Netaji Nagar, P.S. Liluah, District ? Howrah which has since been re-numbered as holding No. 20/1/1 'R' Road. The plaintiff's case is that the plaintiff has become the absolute owner of the suit holding by a registered deed of partition between himself and the said brother. 2. The plaintiff's further case is that originally Khagendra Nath Koley was inducted as a premises tenant by the earstwhile landlord Kasi Nath Banerjee in respect of the suit property which is one bed room of brick built wall covered with pantiles situated within the aforesaid premises. The said Khagendra Nath Koley died leaving behind the defendants/ respondents as his heirs and legal representatives. The plaintiff/ appellant filed a suit being Title Suit No. 409 of 1984 against the defendants / respondents praying, inter alia, for a decree for eviction of the defendants/ respondents from the suit premises and recovery of peaceful khas possession of the suit premises and also mesne profits. 3. The said suit was filed, inter alia, on the ground of default in payment of rent, reasonable requirement of the suit premises for the plaintiff's own use and occupation and also building and re- building of the suit premises. The defendants in the said suit filed a written statement denying the material statements made in the plaint and contested the said suit. 4. The said suit came up for final hearing when the parties adduced their respective evidence and the learned Trial Court by judgement and decree dated 25.02.1993 dismissed the said suit by holding, inter alia, that the plaintiff has failed to prove the alleged ground of reasonable requirement for his own use and occupation and that the defendants are entitled to get protection under section 17 (4) of the West Bengal Premises Tenancy Act, 1956 . 5. 5. It appears that the ground of building and re- building was not seriously pressed by the plaintiff in the suit and it has been submitted by the Mr. Karar, learned Advocate, today when he made his submissions in reply, that the plaintiff/ appellant also did not and does not even today press the ground of building and re-building. The Learned Trial Court further held that the suit fails also on the ground of invalidity of the notice under section 13 (6) of the West Bengal Premises Tenancy Act. The plaintiff/appellant, being aggrieved by the aforesaid judgement and decree passed by the learned Trial Court, filed Title Appeal No. 99 of 1993 and the learned Lower Appellate Court by the judgement and decree dated 26th April, 1999 dismissed the said appeal after having found that the plaintiff has failed to prove the ground of reasonable requirement for own use and occupation. However, the learned Lower Appellate Court found that the learned Trial Court was not correct in holding that the notice under Section 13(6) of the said Act of 1956 was bad in law. 6. Being aggrieved by and dissatisfied with the impugned judgement and decree passed by the learned lower appellate court, the plaintiff has filed the instant appeal in this Court. In the instant appeal none of the parties have made any submission with regard to the point of notice under Section 13(6) of the said Act of 1956 and thus the finding of the learned Lower Appellate Court stands and it has already been indicated above that the learned Lower Appellate Court was of the view that the notice under Section 13(6) of the said Act of 1956 was not bad in law. 7. The learned Lower Appellate Court on the question of plaintiff's reasonable requirement of the suit premises for own use and occupation laid much emphasis on its finding that the plaintiff has not been able to prove that the tenancy which was in the name of Sree Durga Engineering was actually surrendered to the landlord of the premises concerned. At this juncture it is necessary to say a few words with regard to the plaintiff's case. The plaintiff's case is that the plaintiff had a partnership business with his brother under the name and style of "Ms. At this juncture it is necessary to say a few words with regard to the plaintiff's case. The plaintiff's case is that the plaintiff had a partnership business with his brother under the name and style of "Ms. Sree Durga Engineering " in a tenanted shed at holding No. 69, Benaras Road, Belgachia, Howrah but the said partnership was dissolved by a deed of dissolution dated 20.11.1986 and the tenanted shed of the partnership business was surrendered to the landlords concerned. The plaintiff's case was that as per the terms of the said deed of dissolution, the plaintiff became the absolute and sole owner and proprietor of the said business i.e. the Sree Durga Engineering. The plaintiff's further case was that the plaintiff's wife Smt. Archana Chongdar has another tenanted shed in the holding No. 69 Benaras Road, under the landlord concerned and she had allowed the plaintiff to temporarily run his business in such shed. 8. The plaintiff's case was that the plaintiff has no room or shed of his own to run his business and hence he required the suit premises. The plaintiff has also stated in the plaint that he has filed two suits for eviction on the ground of reasonable requirement against the two tenants in the suit holding and there are altogether three tenanted rooms which are situated in a compact block and in a row adjoining to one and another in the suit holding. The plaintiff has stated in its plaint that the plaintiff shall convert the three tenanted rooms into one shed by removing the intervening partition walls for running his business ("Karkhana"). The learned Lower Appellate Court came to the conclusion that the learned Lower Appellate Court would have believed the case of the plaintiff running his business in the tenanted room of his wife had the plaintiff been able to establish that there was an actual surrender of the tenancy in the name of the Sree Durga Engineering. The learned Lower Appellate Court found that the plaintiff has not filed any document to show that there was any such surrender of tenancy and the landlord of the premises concerned has also not been examined to establish the fact of such surrender. 9. However, the learned Lower Appellate Court observed that definitely an accommodation available in a house owned by the landlord has an edge over a tenanted premises. 9. However, the learned Lower Appellate Court observed that definitely an accommodation available in a house owned by the landlord has an edge over a tenanted premises. The learned Lower Appellate Court considered the exhibit-4 and came to the conclusion that even after the dissolution of the partnership the rent was paid on 20.12.1986 and another rent receipt (exhibit-8) is also on record showing that the plaintiff's wife paid rent in December 1991 in respect of another tenanted room. The Learned Lower Appellate Court came to a finding that there were two rooms at 69 Benaras Road-one in the name of the tenant Shree Durga Engineering and the another in the name of the plaintiff's wife. However, the learned Lower Appellate Court did not find any merit in the plaintiff's ground of reasonable requirement of the suit premises for own use and occupation and thus dismissed the said Title Appeal. 10. The learned Senior Advocate appearing on behalf of the plaintiff/appellant submitted that it will appear from the judgements of the learned Courts below that the plaintiff intends to run "Karkhana" i.e. a workshop, for business purposes. The learned Senior Advocate for the plaintiff drew the attention of this Court to the judgement of the learned Trial Court where the learned Trial Court finds that there has been no challenge with regard to the fact that the plaintiff is the owner of the disputed premises and the plaintiff does not have any alternative suitable accommodation and the defendants have admitted such facts. 11. The learned Trial Court has also found that the status of the plaintiff in respect of the tenancy standing in the name of the plaintiff's wife at 69, Benaras Road is that of licensee. At least, the learned Trial Court has not made any adverse comment with regard to such status of the plaintiff in the said tenancy. The Learned Senior Advocate for the plaintiff/appellant submitted that since the defendant has not disputed that the plaintiff has no alternative suitable accommodation then in that event the plaintiff's occupation of the tenanted shed in the name of his wife at 69, Benaras Road cannot be treated to be an alternative suitable accommodation. 12. The Learned Senior Advocate for the plaintiff/appellant submitted that since the defendant has not disputed that the plaintiff has no alternative suitable accommodation then in that event the plaintiff's occupation of the tenanted shed in the name of his wife at 69, Benaras Road cannot be treated to be an alternative suitable accommodation. 12. The learned Senior Advocate for the plaintiff/appellant further submitted that since the learned Trial Court has found that the plaintiff has no alternative suitable accommodation it is immaterial whether the plaintiff has been able to prove the surrender of the tenancy in the name of Shree Durga Engineering, and the plaintiff's occupation in a different premises either as a tenant or as a licensee is a precarious one. The learned Senior Advocate for the plaintiff/appellant submitted that the deed of dissolution is dated 20th November, 1986 and the rent bill concerned (exhibit-4) is dated 20th December, 1986. Therefore, the payment of rent was just after the month the partnership firm stood dissolved. The said learned Advocate submitted that even though the deed of dissolution is dated 20.11.1986 some time inevitably is required to wind up things and, therefore, it was not at all unnatural that the rent receipt dated 20th December, 1986. 13. The said learned Senior Advocate submitted that it will appear from the records that no further rent receipt/bill came into existence after 20th December, 1986 and this shows that the said Sree Durga Engineering stood dissolved and the tenancy in the name of Sree Durga Engineering was surrendered. The said learned Senior Advocate submitted that if the tenancy in the name of Sree Durga Engineering had continued even after the dissolution then in that case there would have been in existence further rent receipts of subsequent dates in respect of Sree Durga Engineering. 14. That apart, the said learned Senior Advocate drew the attention of this Court to a very important fact and the fact is that the said exhibit-4 even though it is dated 20th December, 1986, it is really a rent receipt which was granted in respect of the rent paid for the month of November, 1986. The said learned Senior Advocate submitted that from a perusal of the impugned judgements and the materials on record it will appear that there is no dispute that the plaintiff is running a business. The said learned Senior Advocate submitted that from a perusal of the impugned judgements and the materials on record it will appear that there is no dispute that the plaintiff is running a business. The question is from where the plaintiff should be allowed to run his business. The said learned Senior Advocate submitted that the defendants in the suit have not shown anything to prove that the plaintiff is still running his business from the tenancy which stood in the name of Sree Durga Engineering. According to the said learned Senior Advocate for the plaintiff/appellant both the learned Courts below failed to take into consideration the material facts before coming to the conclusion on the issue of reasonable requirement of the plaintiff's own use and occupation of the suit premises. 15. The learned Senior Advocate cited a decision reported at AIR 1979 SC 272 (MST. BEGA BEGAM and ORS. VS. ABDUL AHAD KHAN and ORS.) wherein the Hon'ble Court at Paragraph 13 of the said reports was pleased to observe that the connotation of the term "need" or "requirement" should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction, as such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds. 16. The said learned Senior Advocate submitted another decision reported at AIR 1995 Rajasthan (SUKHLAL VS. LEGAL REPRESENTATIVES OF NARAYAN DAS and ANR.) in support of his submission that if a member of a joint family for the purpose of carrying on business during the pendency of a suit takes a lease or licence of a shop the need of such member does not become non - existent thereby. 17. It appears from the said reports that it was observed by the Hon'ble Court that the member concerned of the joint family was not supposed to sit idle till he gets the suit shop for carrying on the business. The said learned Senior Advocate cited another decision reported at AIR 1995 SC 576 (RAJKUMAR KHAITAN AND ORS. VS. BIBI ZUBAIDA KHATUN AND ANR.) in support of his contention that the landlord even need not indicate the precise nature of business which he may intend to start in the premises concerned. 18. The said learned Senior Advocate cited another decision reported at AIR 1995 SC 576 (RAJKUMAR KHAITAN AND ORS. VS. BIBI ZUBAIDA KHATUN AND ANR.) in support of his contention that the landlord even need not indicate the precise nature of business which he may intend to start in the premises concerned. 18. The said learned Senior Advocate also cited a decision reported at 87 CWN 278 (SONABATI DEVI AND ORS. VS. ACHYUTANAND DEY AND ANR.). It appears that in Paragraph 17 of the said reports the Hon'ble Court was pleased to observe that it is unnecessary for the landlord to prove absolute necessity and while determining the issue of reasonableness of the landlord's requirement, the Courts of law have always considered whether the landlord has need or necessity for occupying the premises let out by him in the light of the facts and circumstances of each particular case. 19. It further appears that in Paragraph 18 of the said reports the Hon'ble Court has been pleased to observe that the said Hon'ble Court finds no reason to hold that regardless of other relevant facts the possession of a tenanted premises by a landlord ought to be always considered as unsuitable and that without proving anything more, the landlord living in a tenanted premises would be entitled to recover possession of his own premises let out to a tenant. 20. The learned Advocate appearing on behalf of the defendants/respondents submitted that not a single piece of paper has been brought on record by the plaintiff with regard to the plaintiff's case of building and rebuilding and there is no evidence in this regard even though the plaintiff has taken a ground of building and rebuilding in paragraph 6 of the plaint. The said learned Advocate referred to paragraph 6 and 7 of the plaint. As noted above the learned Advocate for the plaintiff/appellant has submitted that the issue regarding the building and rebuilding was not agitated by the plaintiff in the learned Courts below but it is the plaintiff's case that the plaintiff would like to run a "Karkhana" by making a compact block in the suit holding by removing the intervening partition walls of the two rooms and there are three rooms adjacent to each other in the said suit holding. 21. 21. The learned Advocate for the defendants/respondents submitted that the plaintiff has not brought on record any sanctioned plan for building and rebuilding and the plaintiff has failed to prove his case. Since the issue regarding building and rebuilding has not been pressed by the plaintiff/appellant such submissions made by the learned Advocate for the defendants/respondents are of no consequences. It will appear from perusal of the paragraph 6 of the plaint that two distinct grounds have been pleaded in the said paragraph i.e. the ground of reasonable requirement for own use and occupation and the ground of building and rebuilding. Even if the plaintiff has not pressed the ground of building and rebuilding, the plaintiff is entitled to press the ground of reasonable requirement of the suit premises for own use and occupation. 22. Thus it is necessary to ascertain whether the plaintiff has been able to prove the ground of reasonable requirement for own use and occupation of the suit premises. The learned Advocate for the defendants/respondents has submitted that the plaintiff has not filed any document to show that there was a surrender of tenancy in respect of the Sree Durga Engineering and the plaintiff has not called the landlord as a witness to prove such surrender. According to the said learned Advocate even after the deed of dissolution rent was paid in December, 1986. The said learned Advocate submitted that the rent receipt granted in favour of the plaintiff's wife by the landlord concerned does not show that the plaintiff is running the business in his wife's tenancy and the plaintiff has failed to prove the fact that he is running the business in his wife's tenancy. The said learned Advocate further submitted that the plaintiff has not called his wife to give evidence regarding the plaintiff's running of business in his wife's tenancy. 23. It appears to this Court that such submissions made by the learned Advocate for the defendants/respondents are not of any substance. It is not known as to why the fact that the plaintiff is running business in his wife's tenancy should be reflected on the rent receipt granted by the landlord concerned to the plaintiff's wife in respect of the tile shed at 69 Benaras Road. It is not known as to why the fact that the plaintiff is running business in his wife's tenancy should be reflected on the rent receipt granted by the landlord concerned to the plaintiff's wife in respect of the tile shed at 69 Benaras Road. The said tenancy is presumably an agreement between the plaintiff's wife and the land lord concerned and it is not necessary that on such rent receipt it should be recorded that the plaintiff is running his business in his wife's tenancy. 24. This Court does not find any force in the submission that the plaintiff has been unable to prove his case because of the fact that he has not called his wife to give evidence as a plaintiff's witness. With regard to the absence of any document showing surrender of the tenancy in the name of Sree Durga Engineering, this Court is of the view, considering the facts and circumstances of the instant case, that there has been a surrender of tenancy standing in the name of Sree Durga Engineering. The fact that there has been a deed of dissolution between the two brothers i.e. plaintiff and Paresh Chandra Chongdar and such deed of dissolution is dated 20th December, 1986 and that after such deed of dissolution the plaintiff has been carrying on the business all by himself and the last rent receipt in respect of the said Sree Durga Engineering has been for the month of November 1986 shows that there has been a surrender of the tenancy in the name of Sree Durga Engineering. 25. Had there been any continuance of the said tenancy in the name of Sree Durga Engineering, further rent receipts in respect of the subsequent periods would have come on record but the defendants have not been able to show that there has been any further continuance of the said tenancy in the name of Sree Durga Engineering. The learned Lower Appellate Court did not take into consideration this aspect of the matter. The learned Lower Appellate Court presumably thought that the rent receipt dated 20th December, 1986 was for the month of December, 1986 but it was not so. The learned Lower Appellate Court did not take into consideration this aspect of the matter. The learned Lower Appellate Court presumably thought that the rent receipt dated 20th December, 1986 was for the month of December, 1986 but it was not so. Even if, for the sake of argument, rent had been paid for the month of December, 1986 it could not have meant, with certainty, that the tenancy in the name of Sree Durga Engineering continued even after the partnership firm dissolved as it is common knowledge that some time may be required for the purpose of winding up things completely. 26. The documents already on record clearly indicate that there has been a surrender of the tenancy in the name of Sree Durga Engineering. The argument made by the learned Advocate for the defendants/respondents that there is no document to show the surrender of tenancy in the name of Sree Durga Engineering is not an argument of substance. The learned Advocate for the defendants/respondents submitted that there is no threat of eviction by the landlord concerned against the plaintiff's wife and, therefore, the possession, if any, of the plaintiff in his wife's tenancy is not precarious. 27. This Court is unable to accept such submission of the said learned Advocate as the plaintiff has clearly pleaded in his plaint that his wife has allowed the plaintiff to temporarily run his said business in the tenancy which stands in the name of his wife. It has not been proved by the defendants that the plaintiff's status is that of a tenant in respect of the wife's tenancy. It appears from the materials on record that the occupation of the plaintiff in respect of his wife's tenancy can be described as that of a licensee. The plaintiff has already filed two suits for eviction against the two other tenants in the suit holding. This Court is of the view that the plaintiff should not be deprived of his right to pray for eviction so that he can do his business in the premises which he owns. The learned Lower Appellate Court has already observed that definitely an accommodation available in a house owned by the landlord has an edge over the tenanted premises. This Court is of the view that the plaintiff should not be deprived of his right to pray for eviction so that he can do his business in the premises which he owns. The learned Lower Appellate Court has already observed that definitely an accommodation available in a house owned by the landlord has an edge over the tenanted premises. Even though both the learned Courts below have made the concurrent finding with regard to the issue of reasonable requirement of the plaintiff for own use and occupation of the suit premises, this Court is of the view that both the learned Courts below have not taken into consideration certain material aspects of the matter which have already been discussed above. 28. This Court is of the view that the impugned judgements and decrees should be set aside and the suit for eviction should be decreed. Accordingly, the judgements and decrees passed by the learned Courts below are set aside and the present appeal is allowed. The said Title Suit No. 409 of 1984 which was placed before the learned 1st Court of Munsiff, Howrah is decreed and, accordingly, the plaintiff is granted a decree for eviction of the defendants from the suit premises and for recovery of khas and peaceful possession of the suit premises from the defendants. The defendants are directed to vacate and deliver up the khas and peaceful possession of the suit premises in favour of the plaintiff within 31st December, 2012 failing which the plaintiff /appellant will be entitled to put the decree into execution. There shall be, however, no order as to costs. Let the Lower Court Records be sent down to the learned Court concerned immediately. Urgent xerox certified copy of this judgement, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.