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2014 DIGILAW 1067 (CAL)

Bapi Chatterjee v. Arati Halder

2014-11-14

GIRISH CHANDRA GUPTA, TAPABRATA CHAKRABORTY

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JUDGMENT : Tapabrata Chakraborty, J. The undisputed facts are that the respondent/plaintiff purchased the suit property on 3rd June, 1994 and preferred a suit for eviction and recovery of possession with mesne profit against the appellant/defendant on 13th December, 1994. The said suit was preferred primarily on the grounds of default and reasonable requirement. The said suit was ultimately dismissed by a judgment dated 30th November, 2000 and against the said judgment, the plaintiff preferred an appeal before the 1st Appellate court being Title Appeal No.283 of 2007. The said Title Appeal was allowed on contest and the judgment dated 30th November, 2000 was set aside and the suit was sent back on remand with a direction to consider the plaintiffs application under Order 6, Rule 17 of the Code of Civil Procedure (hereinafter referred to as the said Code) and to deliver fresh judgment. The records were received by the Trial Court on 30th August, 2004 and the amendment application was allowed by an order dated 1st March, 2005. Thereafter, the said suit was dismissed by a judgment dated 21st August, 2007. The plaintiff challenged the said judgment through an appeal being Title Appeal No. 283 of 2007 and the same was allowed by a judgment dated 31st May, 2013 against which the instant second appeal has been preferred by the defendant. 2. Dealing with the ground of default, the Learned Trial Court was of the view that as the defendant had deposited the quantified arrears of rent on the basis of an order under Section 17(2) of the said Act of 1956 and as the defendant had also deposited rent month by month till March, 2007, the defendant was entitled to get protection against delivery of possession. 3. Dealing with the ground of reasonable requirement, the Learned Trial Court was of the view that as the plaintiff purchased the suit property on 3rd June, 1994 and filed the suit on 13th December, 1994 incorporating a ground of reasonable requirement, the said suit was not maintainable in view of the provisions of Section 13(3A) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the said Act of 1956) and that the ground of reasonable requirement cannot also be taken by a subsequent amendment of the plaint after 3 years of the purchase of the property. 4. 4. Pertaining to the said ground of default, the 1st Appellate Court was, however, of the view that the defendant had not continued to make payment of rent for the current months, as directed by the Learned Trial Court on 18th March, 1996 and that there was also no documentary evidence regarding the payment of rent for the months of February, 2005, October, 2005 and November, 2005 and thus, in the absence of any specific stipulation or agreement of making of payment belatedly, the deposit of rent was invalid. 5. As regards the ground of reasonable requirement, the 1st Appellate Court was of the view that as the amendment of the plaint was made during the pendency of the suit and after the expiry of the embargo period, the Learned Trial Court erred in law in observing that the suit is not maintainable. 6. Mr. Basu, learned advocate appearing on behalf of the appellant argues that the ground of default has not been properly considered by 1st Appellate Court inasmuch as the appellant herein deposited the arrear rent in terms of the order passed in the application under Section 17(2) of the said Act of 1956 and had also deposited the rent month by month till March, 2007 and that as such, the petitioner was entitled to get protection against delivery of possession in terms of the provisions of Section 17(4) of the said Act of 1956. 7. Mr. Basu further submits that upon remand, the records of the proceedings were received by the learned Trial Court on 30th August, 2004 and upon such re-admission of the suit after remand, the appellant has made payment of rent, in accordance with law before the Rent Controller in consonance with Section 21 readwith Section 22 of the said Act of 1956. In support of such contention, Mr. Basu has relied upon a judgment delivered in the Case of Radharani Dassi & Anr. v. Angur Bala Dassi, reported in 67 CWN 501 wherein it has, inter alia, being held that the obligation of the tenant to make deposits under Section 17(1) of the said Act of 1956 revives from the date of re-admission of the suit by the Trial Court after remand. 8. Mr. v. Angur Bala Dassi, reported in 67 CWN 501 wherein it has, inter alia, being held that the obligation of the tenant to make deposits under Section 17(1) of the said Act of 1956 revives from the date of re-admission of the suit by the Trial Court after remand. 8. Mr. Basu further argues that an amendment of plaint in a suit for eviction, by addition of a new ground of reasonable requirement is not permissible if the suit had been filed within 3 years from the date of the purchase of the property by the landlord. In support of his contention, Mr. Basu relied upon the judgment delivered in the case of Inder Sengupta v. Prova Rani Chakraborty, reported in AIR 1985 Cal 218 . 9. The suit, according to Mr. Basu, was readmitted on 30th August, 2004 and that thereafter the obligation of the appellant/tenant to make deposits under Section 17(1) of the said Act of 1956 revived and accordingly the rent deposited subsequent to such readmission of the suit was a valid deposit. 10. Upon hearing Mr. Basu, learned advocate appearing for the appellant and upon considering the materials on record we are of the opinion that the Learned 1st Appellate Court has rightly applied the principles to the facts and circumstances of the case. 11. 10. Upon hearing Mr. Basu, learned advocate appearing for the appellant and upon considering the materials on record we are of the opinion that the Learned 1st Appellate Court has rightly applied the principles to the facts and circumstances of the case. 11. The first Appellate Court, upon assessment of the rent challans observed that the appellant/tenant deposited rent for the month of November, 2004 on 23.12.2004, rent for the month of March, 2004 on 21.04.2004, rent for the month of April, 2004 on 17.05.2004, rent for the month of May, 2004 on 23.06.2004, rent for the month of June, 2004 on 28.07.2004, rent for the month of July, 2004 on 26.08.2004, rent for the month of August, 2004 on 24.09.2004, rent for the month of September, 2004 on 30.10.2004, rent for the month of October, 2004 on 01.12.2004, rent for the month of November, 2004 on 23.12.2004, rent for the month of March, 2005 on 21.04.2005 and rent for the month of April, 2005 on 25.05.2005 and that as such the rents were not deposited for the current months in accordance with law, as directed by the order passed in the application under Section 17(2) of the said Act of 1956 and upon scrutiny of the documentary evidence it was observed that the rent of the current months were paid after the statutory period and that accordingly such deposit of rent was found to be invalid. 12. In terms of Section 17(1) of the said Act of 1956, the tenant has to deposit the rent, month by month, by the 15th of the month following the month for which the payment is to be made and in the event of any dispute as regards the amount of rent payable, the tenant is required to deposit in Court the amount admitted by him to be due within the time specified under Sub-section (1) of Section 17 of the said Act of 1956. In terms of Section 17(2), in the event there is any dispute as to the amount of rent payable by the tenant, the tenant shall, within the time specified in sub-section (1) deposit in Court the amount admitted by him to be due from him together with an application to the Court for determination of the rent payable. 13. In terms of Section 17(2), in the event there is any dispute as to the amount of rent payable by the tenant, the tenant shall, within the time specified in sub-section (1) deposit in Court the amount admitted by him to be due from him together with an application to the Court for determination of the rent payable. 13. The provisions of Sections 17(1) and 17(2) of the said Act of 1956 are not controlled by either Section 21 or Section 22 of the said Act of 1956, providing for deposit of rent with the Rent Controller when the landlord refuses to accept the contractual rent and the tenant in order to avoid default has to deposit such rent with the Rent Controller in accordance with the provisions of Section 21 and Section 22 of the said Act of 1956. 14. The judgment delivered in the case of Radharani Dassi (Supra) militates against the appellant/tenant in the facts and circumstances of the case since even after readmission of the suit on 30th August, 2004, the appellant had failed to deposit the rent, month by month, within the statutory period. 15. The issue as to whether an amendment of plaint in a suit for eviction, by addition of a new ground of reasonable requirement, is permissible, if the suit had been filed within 3 years from the date of the purchase of the property by the landlord was considered by a Division Bench of this Court in the matter of Uma Mishra v. Monoranjan Sinha, reported in 1992 (2) CHN 407 , wherein reliance was placed upon the judgment delivered by the Hon'ble Supreme Court in appeal against the judgment relied upon by the appellant herein in the case of Inder Sengupta (Supra). In the case of Uma Mishra (Supra), the Court has inter alia observed as follows: "4. Now this question is set at rest by the judgment of the Supreme Court in the case of Smt. Prova Rani Chokraborty & Anr. v. Inder Sengupta in Civil Appeal No.1921 judgment delivered on 5th March, 1991. In this case the Supreme Court considered the issue in question. In this case, the appellant Prova Rani Chakraborty & Anr. purchased the premises in question on 5th June, 1973 and they instituted 11 suit for eviction against the tenant on 9th February, 1976. v. Inder Sengupta in Civil Appeal No.1921 judgment delivered on 5th March, 1991. In this case the Supreme Court considered the issue in question. In this case, the appellant Prova Rani Chakraborty & Anr. purchased the premises in question on 5th June, 1973 and they instituted 11 suit for eviction against the tenant on 9th February, 1976. The plaint was amended on 28th April, 1977 as a result of which the ground mentioned in clause (ff) of sub-section (1) of s. 3 of the West Bengal Premises Tenancy Act 1956 was specifically pleaded. The amendment was necessary because, at the time of institution of suit, i.e. 9.2 1976 three years from the date or purchase of the premises had not expired, as required by sub-section (3-A) of the s. 13 of the Act, for seeking eviction on the ground mentioned under clause (ff) of sub-section (1) of s. 13 of the said Act. On the expiry of the said period, the aforesaid ground of eviction under clause (ff) of sub-section (1) of s.13 was added as additional reason for seeking eviction. 5. After the rival contention of the parties it was held that the said amendment of the plaint for incorporating the new ground of eviction under clause (ff) of sub-section (1) of S.13 which was brought on record, was validly made. In that case, the Division Bench of this court held that the question of reasonable requirement cannot be considered on the basis of amendment when the suit was filed within the prohibited period of three years. In that case, the Division Bench of this court held that the question of reasonable requirement cannot be considered on the basis of amendment when the suit was filed within the prohibited period of three years. Supreme Court reversed the judgment of the Division Bench of this court and directed the High Court with reference to the facts and law concerning the question of bonafide requirement of the landlord in accordance with law, or in other words, in short, it is the view of the Supreme Court that such a course of action is permissible and that even though the suit was filed within the prohibited period of three years an contemplated in s. 13(3)(A) of the said Act, after the expiry of three years, amendment could be made in the petition for incorporating the ground mentioned in clause (ff) of sub-section (1) of s.13 of the said Act in view of the judgment of the Supreme Court on this point, it cannot be contended that in the instant case, the ground of eviction as mentioned in clause (ff) of sub-section (1) of s. 13 of the said Act cannot be, invoked on the basis of the amendment as sought to be argued on behalf of the tenants-defendants. 6. Accordingly, we hold that the plaintiff landlady was entitled to invoke the ground of eviction as mentioned in clause (ff) of sub-section (1) of s. 13 of the said Act by amendment in suit which was filed within the prohibited period mentioned in sub-section (3A) of s. 13 of the said Act and the decree passed by the court below on the basis of the additional ground for eviction as provided under clause (ff) of sub-section (1) of S. 13 is valid and, cannot be challenged on this ground." 16. The ground of reasonable requirement has thus been appropriately dealt with by the Learned 1st Appellate Court inasmuch as the plaintiff was entitled to invoke the ground of reasonable requirement as mentioned in Section 13(1)(ff) of the said Act of 1956 by amendment in the suit, which was filed within the prohibited period as stipulated under Section 13(3A) of the said Act of 1956, since the amendment was made after expiry of the prohibited period and the amendment was also allowed on 1st March, 2005. 17. 17. The factual findings of the 1st Appellate Court are based on evidence and this Court cannot substitute its own findings upon re-appreciation of evidence. 18. For the aforesaid reasons, we are of the opinion that no question of law arises in the appeal and that accordingly no interference is called for. The appeal is, therefore, dismissed. 19. In the facts of the present case, there will be no order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.