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2013 DIGILAW 561 (CAL)

Manjusree Das v. Baruna Mukherjee

2013-08-08

DIPANKAR DATTA

body2013
JUDGMENT 1) The judgment and order impugned in this first miscellaneous appeal bears reflection of complete non-application of mind by the learned Additional District Judge, 1st Court, Howrah while interfering with the judgment and decree passed by the learned Civil Judge (Junior Division), 2nd Court, Howrah and in remanding the suit for eviction filed by the appellant for consideration of two additional issues that were framed by him. 2) The appellant instituted a suit (T.S. No. 58 of 2000) against the predecessor-in-interest of the respondents under the West Bengal Premises Tenancy Act, 1956 for his eviction from the suit property (the tenanted premises) on the ground of default and reasonable requirement as well as restoration of possession. The learned trial judge framed the following issues for decision: 1. Is the suit maintainable in its present form and law? 2. Is the plaintiff owner of the suit property? 3. Whether the defendant caused damage to the suit property? 4. Whether the plaintiff requires the suit property for her own use and occupation? 5. Is the notice served upon the defendant legal, valid? 6. Is the defendant defaulter in payment of rent? 7. Is the plaintiff entitled to a decree as prayed for? 3) The suit was decreed vide judgment and decree dated February 27, 2006 and March 10, 2006 respectively upon acceptance of both the grounds on which eviction was sought for by the appellant. Since the respondents in this appeal during the pendency of the suit were substituted in place of the original defendant (the tenant) who had passed away, they were given 45 days’ time by the learned trial judge to hand over possession of the suit property to the appellant failing which the appellant was granted liberty to put the decree to execution in accordance with law. 4) The respondents carried the judgment and decree of the learned trial judge in appeal (T.A. No. 74 of 2006). 4) The respondents carried the judgment and decree of the learned trial judge in appeal (T.A. No. 74 of 2006). By his judgment and order dated August 25, 2006, the learned judge of the lower appellate court upheld the decision of the learned trial judge in respect of issues 1, 2, 3, 5 and 6; however, the decision regarding issues 4 and 7 were set aside and the learned trial judge on remand of the suit was directed to give his decision on the following two additional issues: 4(a) Whether the plaintiff has alternatively suitable accommodation elsewhere for her own use and occupation? 4(b) Whether the defendant has any accommodation for his own use and occupation elsewhere? 5) The judgment and order impugned is indefensible having regard to the fact that the learned judge of the lower appellate court upheld the finding of the learned trial judge that the respondents were in default of payment of rent. Such default per se formed the ground for the suit to be decreed, entitling the appellant to secure the respondents’ eviction and for restoration of possession of the suit property. Even if the decision of the learned trial judge on the question of reasonable requirement was found to be erroneous, the same would have no materiality on the ultimate decision that the appellant was entitled to a decree for eviction of the respondents and for restoration of possession solely on the ground of default in payment of rent. 6) I would have ended my judgment here by allowing the appeal upon setting aside the judgment and order impugned. However, since Mr. Mukherjee, learned senior advocate for the respondents, wished the Court to consider his submissions, I propose to deal with the same now. 7) According to Mr. Mukherjee, the learned judge of the lower appellate court had ordered a remand considering the fact that the learned trial judge did not try to ascertain by local inspection the extent of accommodation available to the appellant and in relying on the decision of the learned single judge of this Court reported in 1995 (2) CLJ 496 (Amar Singh Saini v. Rup Chand Das and anr.), the learned judge did not commit any illegality. 8) It was further contended that although issue no. 8) It was further contended that although issue no. 4 framed by the learned trial judge required a proper decision on the requirement of the appellant of the property in the suit for her own use and occupation, the decision for want of adequate evidence could be termed perverse and having regard to the Court’s power to frame additional issues, interest of justice required consideration of all the issues by the learned trial judge. 9) Next, Mr. Mukherjee submitted that the appellant was in occupation of reasonably suitable alternative accommodation and the discretion exercised by the learned judge ought not to be lightly interfered with since directing local inspection is within the power of the lower appellate court. 10) Finally, relying on the decision of the Supreme Court reported in AIR 1992 SC 700 (Ramesh Kumar v. Kesho Ram), it was urged that the Court can take into consideration subsequent events if the same have a material bearing on the matters in issue and, therefore, events subsequent to the impugned judgment and order ought to be noticed by the Court. Attention was drawn to the fact that the appellant had initiated writ proceedings before this Court for having a plan for construction of an additional floor over the suit property sanctioned and had also been successful in obtaining direction on the municipal authorities to sanction such plan; having regard thereto, the appellant ought to proceed for construction of the additional floor over the suit property for her own occupation and use, and leave the respondents to enjoy the suit property as tenants. 11) To my mind, Mr. Mukherjee has attempted to defend the indefensible obviously in vain. 12) I shall deal with the decision in Amar Singh Saini (supra), relied on by the learned judge of the lower appellate court, first. It is found on perusal thereof that the plaintiffs had filed an application under Order 39 Rule 7, Code of Civil Procedure (hereafter the CPC) for ascertainment of the extent of accommodation available to them. The application was allowed by the learned trial judge, which was challenged before this Court in its revisional jurisdiction. It is found on perusal thereof that the plaintiffs had filed an application under Order 39 Rule 7, Code of Civil Procedure (hereafter the CPC) for ascertainment of the extent of accommodation available to them. The application was allowed by the learned trial judge, which was challenged before this Court in its revisional jurisdiction. Hon’ble Tarun Chatterjee, J. (as His Lordship then was) held that to prove the plaintiffs’ not being in possession of any reasonably suitable accommodation, it would be necessary to find out the extent of their present accommodation by local inspection and that the learned trial judge had not acted illegally and with material irregularity in the exercise of his jurisdiction in allowing the application for local inspection filed by the plaintiffs. Here, it is found from paragraph 5 of the plaint that the appellant has been occupying an accommodation the owner whereof had instituted a suit for her eviction; that she and her husband are legal practitioners; that the distance between their present accommodation and the Court at Howrah was creating impediment in their timely attendance at Court proceedings; that the spouses were suffering from various ailments and accordingly intended to reside in the heart of Howrah city for better treatment; that the suit property was also required for their minor daughters; that the present accommodation was not at all suitable for her use and occupation; and that she has no other alternative accommodation elsewhere except the suit property. Paragraph 5 of the plaint was dealt with by the original defendant in the suit in paragraph 10 of his written statement. The said paragraph contained bare denials of the pleaded averments. In such paragraph no positive case was set up by the original defendant to the effect that the accommodation presently available to the appellant was reasonably suitable and that her plea of reasonable requirement was without basis. The original defendant even did not apply under Order 39 Rule 7 of the CPC for holding local inspection to disprove the appellant’s claim. In such circumstances, can the learned trial judge be faulted for not ordering a local inspection? Mr. Mukherjee submitted that in exercise of inherent power, the learned trial judge ought to have so ordered. I think not. Mr. In such circumstances, can the learned trial judge be faulted for not ordering a local inspection? Mr. Mukherjee submitted that in exercise of inherent power, the learned trial judge ought to have so ordered. I think not. Mr. Bhattacharya, learned advocate appearing for the appellant is right in his submission that question of invocation of inherent powers would not arise if the CPC provides for a procedure for achieving a particular result. The learned trial judge, in my view, could not have suo motu ordered a local inspection in the garb of exercise of inherent powers saved by Section 151 of the CPC since Order 39 Rule 7 thereof specifically ordains that a Court may, on an application thereunder, order local inspection. In her evidence-in-chief the appellant averred that for securing her eviction T.S. No. 162 of 1997 had been instituted by the so-called owner of the premises (where she had been residing) and the same was pending but, in course of cross-examination on January 5, 2006, she deposed that she had no paper or document to show that such suit was pending. Mr. Mukherjee sought to make an issue out of it by contending that the suit was not pending. However, it appears from the judgment of the learned trial judge that the appellant had filed certified copy of the plaint in T.S. 162 of 1997, which was marked Exhibit IX. Answering the contention of the respondents that it was for the appellant to seek local inspection to prove the extent of her present accommodation, the learned trial judge was of the view that local inspection was not necessary because the appellant herself was the defendant in a suit for eviction of licensee initiated against her, and further that the respondents had failed to prove by adducing evidence that the appellant had suitable accommodation elsewhere. The reasoning appears to be logical and ought to have been upheld. In my view, a landlord’s plea of reasonable requirement of the suit property cannot be successfully resisted by the tenant by merely claiming that the present accommodation of the landlord is sufficient to cater to his needs. Unless similar benefits and advantages that are attached to the suit property are proved to be attached to the accommodation that the landlord has been in occupation either as a tenant or licensee, the claim of the tenant may not succeed. Unless similar benefits and advantages that are attached to the suit property are proved to be attached to the accommodation that the landlord has been in occupation either as a tenant or licensee, the claim of the tenant may not succeed. This is a matter of evidence and cannot be gathered by local inspection. It would be unjust if a plaintiff-landlord seeking to evict the defendant-tenant on the ground of reasonable requirement and who himself is the defendant in a suit for eviction instituted by his landlord and facing an imminent threat of eviction is asked to apply for local inspection, which ultimately would serve no worthy purpose. The decision in Amar Singh Saini (supra), thus, is clearly distinguishable and the ratio laid down therein could have no application on facts and in the circumstances of the present case. The learned judge of the lower appellate court committed serious error of law in applying the ratio of such decision in the facts and circumstances of the appeal. 13) On the pleaded averments of the parties and the evidence that was before the learned trial judge, the learned judge of the lower appellate court acted illegally in ordering the appellant to apply for local inspection for ascertaining the extent of accommodation available to the appellant as well as the respondents. Having regard to institution of T.S. 162 of 1997 by which the appellant was sought to be evicted from her present accommodation, the same provided sufficient cause for her to apprehend her eviction and to seek the eviction of the respondents for enjoying the suit property owned by her. 14) Although Mr. Mukherjee has not referred to the provisions contained in Order 41 Rule 33 of the CPC, I am of the view that even such provision does not afford any assistance to the respondents. The circumstances were not such as to make it imperative for the learned judge of the lower appellate court to make the order he ultimately did in directing the appellant to apply for local inspection. 15) The other contention raised by Mr. Mukherjee regarding subsequent events also does not advance the cause of the respondents, being devoid of merit. The circumstances were not such as to make it imperative for the learned judge of the lower appellate court to make the order he ultimately did in directing the appellant to apply for local inspection. 15) The other contention raised by Mr. Mukherjee regarding subsequent events also does not advance the cause of the respondents, being devoid of merit. Mere fact that the appellant at one point of time was inclined to have an additional floor constructed over the suit property for her own accommodation does not take away her right to secure the eviction of the respondents for her reasonable requirement. Mr. Bhattacharya submitted that the appellant has abandoned the idea of raising an additional floor having regard to the costs involved and her husband having passed away in the meantime. That apart, it is not the case of the respondents that an additional floor has, in fact, been constructed by the appellant providing her reasonable accommodation. 16) In the result, the appeal succeeds. The judgment and order dated August 25, 2006 passed by the learned judge of the lower appellate court stands set aside. The respondents are granted 45 days’ time to deliver vacant and peaceful possession of the suit property to the appellant. Should the respondents fail to deliver possession as directed above, proceedings for execution of the decree passed by the learned trial judge shall resume and the learned judge of the executing court is encouraged to decide the execution proceedings within 4 (four) months of such resumption. In the event proceedings for execution have not been initiated by the appellant, she shall be at liberty to do so and the learned judge of the executing court shall make sincere endeavour to dispose of the execution proceedings within 6 (six) months of its initiation. 17) Since the learned judge of the lower appellate court is solely responsible for this unnecessary litigation before this Court, I am disinclined to saddle the respondents with costs. 18) The records of the lower court be returned immediately. Urgent photostat certified copy of this judgment and order, if applied for, may be furnished to the applicant at an early date.