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2014 DIGILAW 101 (CAL)

Prabhawati Sharma v. Usha Pandey

2014-02-11

PRASENJIT MANDAL

body2014
Judgment : Prasenjit Mandal, J. This second appeal is at the instance of the defendants/appellants and is directed against the judgment and decree dated January 31, 2011 passed by the learned Judge, City Civil Court, 5th Bench, Calcutta in Title Appeal No.53 of 2009 thereby affirming the judgment and decree dated August 31, 2009 passed by the learned Judge, Presidency Small Causes Court, 2nd Bench, Calcutta in Ejectment Suit No.922 of 2001. The respondents are the plaintiffs of the suit for eviction and recovery of possession in respect of the suit premises as described in the schedule to the plaint and they filed the said suit for ejectment, recovery of possession, mesne profits, etc. on various grounds after serving a notice to quit upon the defendants/appellants herein. The defendants contested the said suit by filing an appropriate written statement denying the material allegations raised in the plaint and upon considerat ion of the evidence on record, the learned Trial Judge decreed the suit for recovery of possession, mesne profits, etc. on the ground of reasonable requirement as provided under Section 13(1)(ff) of the West Bengal Premises Tenancy Act, 1956. The said judgment and decree was under challenge at the instance of the defendants/appellants before the First Appellate Court and upon re-assessment of the evidence on record, the learned First Appellate Court affirmed the decree holding that the plaintiffs required the suit premises for their own use and occupation and also for addition and alteration of the suit premises after demolition of the existing premises. Being aggrieved by such findings, this second appeal has been preferred by the defendants/appellants. Being aggrieved by such findings, this second appeal has been preferred by the defendants/appellants. At the time of admission of the appeal, the following substantial question of law has been framed for decision in this second appeal:- “Whether the courts below substantially erred in law in decreeing the suit against the defendants for eviction without making any provision for accommodation of the defendants in the newly constructed building when there was a concession by the plaintiff’s witness no.1 that the defendants should be accommodated in the newly constructed building, but the area and the rent could be settled as per decision of the court?” Upon hearing the learned Counsel for the parties and on going through the materials on record, I find while decreeing the suit, the learned Trial Judge had observed that the plaintiffs had failed to prove the prayer for ejectment on the ground of building & re-building. But, upon analysis of the evidence on record, he has clearly held that the plaintiffs required the suit premises for reasonable requirement, that is, under Section 13(1)(ff) of the West Bengal Premises Tenancy Act, 1956. While dealing with the first appeal, the First Appellate Court has observed that the plaintiffs are entitled to get a decree of ejectment on the ground of reasonable requirement and building & re-building as laid down in Sections 13(1)(ff) and 13(1)(f) of the 1956 Act respectively. But at the time of admission of the second appeal, the substantial question of law that had been framed, has been indicated earlier which is clearly on the question of the decree for ejectment on the ground of building & re-building as provided under Section 13(1)(f) of the 1956 Act. Therefore, from the substantial question of law framed in the suit, I find that at the time of admission, the ground of reasonable requirement as held by both the Courts below has not been interfered with at all. Upon consideration of the evidence on record and the judgments delivered by both the Courts below, I find that both the Courts below, upon analysis of evidence on record, have come to the conclusion that the plaintiffs require the suit premises for own use and occupation and such findings cannot be stated to be perverse or without any basis. Upon consideration of the evidence on record and the judgments delivered by both the Courts below, I find that both the Courts below, upon analysis of evidence on record, have come to the conclusion that the plaintiffs require the suit premises for own use and occupation and such findings cannot be stated to be perverse or without any basis. Therefore, in my view, the concurrent findings arrived at by both the Courts below on the prayer for ejectment on the ground of own use and occupation of the landlords should not be interfered with and there is no scope for setting aside the concurrent findings in this regard. So, the fact remains that the plaintiffs/respondents are entitled to get a decree for eviction on the ground of own use and occupation under Section 13(1)(ff) of the 1956 Act. So far as the ground of recovery of possession for building & re-building purpose, in my view, the evidence on record is enough to support the findings of the First Appellate Court that this ground has been proved. As per materials on record, the building in suit, i.e., 50/A, Sankaritala Street, Kolkata-700014 is totally in dilapidated condition. As per evidence on record, the other portion of the said building where another tenant, namely, Barun Chandra Bose resided, had already collapsed. The Kolkata Municipal Corporation had also declared the building in suit as insecured and dangerous by giving a notice of demolition. It has also transpired that the defendants are not staying at the premises in suit and according to the contention of the plaintiffs, the same is kept closed since 1995. While arguing the case on behalf of the defendants/appellants before the learned First Appellate Court, the learned Advocate for the defendants/appellants submitted in a fair way that there could not be any objection against eviction of the tenants on the ground of building & re-building subject to the provisions of Section 18A of the 1956 Act. While arguing the case on behalf of the defendants/appellants before this Bench, Mr. Gour Baran Sau has drawn my attention to the evidence on behalf of the plaintiffs to the effect that the plaintiffs would give accommodation to the defendants after making building & re-building in place of the present building in suit. While arguing the case on behalf of the defendants/appellants before this Bench, Mr. Gour Baran Sau has drawn my attention to the evidence on behalf of the plaintiffs to the effect that the plaintiffs would give accommodation to the defendants after making building & re-building in place of the present building in suit. The substantial question of law has been framed in the line of such law under Section 13(1)(f) of the 1956 Act as well as the admission of the plaintiffs to that effect. This submission of the learned Advocate for the plaintiffs, in my view, cannot be accepted in view of the situation that the decree of ejectment has been passed by the learned First Appellate Court not only on the ground as provided in Section 13(1)(f) of the 1956 Act but also on the ground under Section 13(1)(ff) of the 1956 Act. Mr. Kasinath De, learned Advocate appearing for the respondents has referred to the following decisions in support of his contention that the provisions of Sections 13(1)(f) & 13(1)(ff) are not mutually destructive with each other but there may be co-existence at the same time:- i) Ramniklal Pitambardas Mehta v. Indradaman Amratlal Sheth reported in AIR 1964 SC 1676 particularly the paragraph nos.7, 9, 15 & 16 whereby it has been held clearly that the provisions of Section 13(1)(hh) of the Bombay Rents, Hotel and Lodging House Rents Control Act, 1947 cannot possibly apply to a case where a landlord reasonably and bona fide requires the premises for his own occupation even if he had to demolish the premises and erect a new building on them. The provisions of Clause (hh) apply to cases where the landlord does not require the premises for own occupation but requires them for erecting a new building which is to be let out to tenants. The provisions of the said Act is akin to the present Act I am dealing. It has also been held therein that once the landlord establishes that he bona fide requires the premises for his occupation, he is entitled to recover possession of it from tenant in view of the provisions of Section 13(1)(g) of the 1947 Act irrespective of the fact that he would occupy the premises without making any alteration in them or after making the necessary alteration; ii) Arya Samaj, Sagar & ors. v. Pinjamal & Anr. v. Pinjamal & Anr. reported in All India Rent Control Journal 1987(1) 102 (SC) wherein in dealing with a similar matter under the provisions of the Madhya Pradesh Accommodation Control Act, 1961, it has been held that the mere fact that the landlord intended to make alteration in the house either on account of his sweet will or on account of absolute necessity in view of the condition of the house, would not affect the question of his requiring the house bona fide and reasonably for his occupation, when he had proved his need for occupying the house; iii) Kusum Devi v. Mohan Lal (Dead) By LRs. Reported in (2009) 11 SCC 594 I find that this decision has been discussed by the learned First Appellate Court in details in arriving at a conclusion that when the plaintiffs have proved the ground of reasonable requirement and that ejectment decree has not been passed under Section 13(1)(f) [as applicable in the present case] the provisions of Section 18A need not be complied with by the landlords. The grounds under Sections 13(1)(f) & 13(1)(ff) of the 1956 Act are mutually exclusive, but, not destructive of each other. The said decision relates to M.P. Accommodation Control Act, 1961 which is akin to the Act of 1956. Discussing the matter in details, the learned First Appellate Court has held that he finds no bar to make a decree of eviction of the tenants from the demised premises under Section 13(1)(ff) of the 1956 Act. So, in my view, the ratio of this decision has been rightly applied in the present case; iv) Ramesh Chandra Sharma v. Jitendra Kishore Hom roy & ors. reported in 1988(1) All India Rent Control Journal 365 (Gauhati High Court), thus, he has contended that when the landlord requires the suit premises bona fide for own occupation and he shall use the building after it is re-constructed, his case is not only for construction but for own use and occupation and so, the provisions of Section 12(3) of Tripura Buildings (Lease & Rent Control) Act, 1975 would apply and not Clause (iv) of sub-section (4) of Section 12 of the Act of 1975; and v) Radhey Shyam & ors. v. Kalyan Mal reported in (1984) 4 SCC 447 wherein it has been held that when bona fide requirement is the main ground, once that is established, mention of additional ground of demolition and reconstruction would not attract the provision regarding landlord’s obligations to provide accommodation of equal extent to the tenant in the new building according to the provisions of Madhya Pradesh Accommodation Control Act, 1961. This decision also, in my view, will be fully applicable in the instant case. Having due regard to the submissions of the learned Advocates of both the sides and on consideration of the materials on record, I am of the view that the ratio of the decisions of Ramniklal Pitambardas Mehta (supra) and Radhey Shyam & ors. (supra) would be fully applicable and by relying on the decision of Kusum Devi’s case which is also very much relevant in the present case in hand, the grounds of ejectment ‘own use and occupation’ and ‘additions & alterations’ are not mutually destructive of each other but mutually exclusive. The learned First Appellate Court has rightly arrived at a conclusion in passing a decree of affirmance of the learned Trial Judge. So far as the ground of reasonable requirement is concerned and for that reason the Court is not required to consider the provisions of Section 18A of the 1956 Act. As noted earlier, the concurrent findings of the Courts below on ejectment on the ground of reasonable requirement based on evidence should not be interfered with in view of the fact that, the First Appellate Court has also observed that the plaintiffs are entitled to get a decree for ejectment on the ground of Section 13(1)(f) of the 1956 Act in granting the decree of affirmance. As noted earlier, the premises in suit had been closed long time back and as per contention of the plaintiffs, it have been closed in the year 1995. Admittedly, the suit premises is not being occupied by the defendants. The landlord may state that after making construction, he would deliver possession of a portion to be constructed as per Section 18A of the 1956 Act. This is possibly due to the fact that while adducing evidence, the landlord was to adduce evidence on all grounds of ejectment, such as, default, reasonable requirement, building & re-building purpose, etc. The landlord may state that after making construction, he would deliver possession of a portion to be constructed as per Section 18A of the 1956 Act. This is possibly due to the fact that while adducing evidence, the landlord was to adduce evidence on all grounds of ejectment, such as, default, reasonable requirement, building & re-building purpose, etc. and so, while adducing evidence on ejectment on the ground of building & re-building, statement may come in the way as admitted by the plaintiffs to the effect that he would comply with the provisions of Section 18A of the 1956 Act. Since the ground of reasonable requirement as provided in Section 13(1)(ff) of the 1956 Act stands proved by both the courts below, in my view, the landlord is not required to comply with the provisions of Section 18A of the 1956 Act, although there is a statement of the plaintiffs in the evidence while disposing on the ground of Section 13(1)(f) of the 1956 Act. So, there is no question of reinstatement at all in favour of the defendants. In that view of the matter, I am of the opinion that the learned First Appellate Court has arrived at a correct conclusion in passing a decree of affirmance of the Trial Court’s judgment in a right way and that there is no scope of interference with the said judgment at all. So, the relief under Section 18A of the 1956 Act in favour of the defendants cannot be a part of the decree. Accordingly, in my view, the second appeal is devoid of merits and that there is no error in law in decreeing the suit against the defendants for eviction without making any provision for accommodation of the defendants in the newly constructed building when there was a concession by the plaintiff’s witness no.1 that the defendants would be accommodated in the newly constructed area. The substantial question of law is, thus, decided against the appellants. In the result, the second appeal fails to succeed and is, therefore, dismissed. C.A.N. No.261 of 2014:- This C.A.N. application is at the instance of the defendants/appellants and is filed for allowing the petitioner to produce the documents being Annexures ‘B’ to ‘E’ as additional evidence before this Hon’ble Court. In the result, the second appeal fails to succeed and is, therefore, dismissed. C.A.N. No.261 of 2014:- This C.A.N. application is at the instance of the defendants/appellants and is filed for allowing the petitioner to produce the documents being Annexures ‘B’ to ‘E’ as additional evidence before this Hon’ble Court. Upon hearing both the sides, this Bench finds that this application has been filed for adducing additional evidence as regards the papers of the other ejectment suits being Ejectment Suit No.451 of 2002, Ejectment suit No.603 of 1993, the evidence and the judgments delivered thereon and the information slip, etc. These are with regard to the facts and not with regard to the substantial question of law framed for decision in this appeal. So, this application cannot be entertained. Accordingly, the application is rejected. However, there will be no order as to costs.