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2014 DIGILAW 123 (CAL)

Sudipta Nandy v. Anima Sabui

2014-02-19

PRASENJIT MANDAL

body2014
Judgment : Prasenjit Mandal, J. This second appeal is at the instance of the plaintiff/respondent and is directed against the judgment and decree dated March 31, 2006 passed by the learned Additional District Judge, 1st Fast Track Court, Chandannagore thereby reversing the judgment and decree dated December 21, 2000 passed by the learned Civil Judge (Junior Division), 1st Court, Chandannagore in Title Suit No.53 of 1997. The plaintiff instituted the aforesaid suit before the learned Trial Judge for eviction on the ground of default, reasonable requirement and damage against the defendant/respondent herein in respect of the suit property as described in the schedule to the plaint. The defendant/respondent herein is contesting the said suit by filing a written statement denying the material allegations raised in the plaint. Both the parties have adduced evidence in respect of the pleadings of the parties and upon analysis of the evidence on record, the learned Trial Judge decreed the suit. Being aggrieved by such judgment and decree, the defendant/tenant preferred an appeal which was allowed setting aside the judgment and decree passed by the learned Trial Judge. The First Appellate Court has also dismissed the suit without costs. Being aggrieved, this second appeal has been preferred. At the time of admission of the second appeal, the following substantial question of law has been framed:- “1. Whether the learned Additional District Judge and Judge, 1st Fast Track Court, Chandernagore, passed the judgment and decree without properly considering the material facts and circumstances of the case and evidence on record particularly that the owner of Mrityunjoy Sweet failed to produce any sort of document that he has surrendered the tenancy and delivered up vacant possession to the appellant and the inference there from goes very much in favour of the appellant has been completely overlooked.” Upon hearing the learned Counsel for the parties and on analysis of evidence on record, I find that the ground of eviction is on three counts, namely, default, reasonable requirement and damage. So far as the ground of default is concerned, the learned Trial Judge has held that the rent for the premises in suit is at the rate of Rs.250/- per month and the defendant has complied with the provisions of Sections 17(1) & 17(2) and (2A) & (b) of the West Bengal Premises Tenancy Act, 1956 and as such, the tenant is ntitled to get protection against eviction under Section 17(4) of the 1956 Act. So far as the damage is concerned, the Trial Court has observed that the premises in suit had been kept by the defendant under lock and key for a long period and as such, such locking has caused damage to the suit premises. There is no clear finding as to damage, but, the learned Trial Judge has opined that the defendant has failed to show that the premises in suit is in running condition or that in other words, the plaintiff has been able to show from surrounding circumstances that the said room is under lock and key for a considerable period. But, the learned Trial Judge has observed that the plaintiff has proved the ground of reasonable requirement for starting a business in the room in question. Accordingly, a decree of eviction against the defendant has been passed. While the matter came to the First Appellate Court at the instance of the defendant, the First Appellate Court has held that the local inspection is necessary. Accordingly, a Commissioner has been appointed for local inspection and he has submitted a report. The learned Commissioner has also been examined by the First Appellate Court. The parties have led evidence in support of their respective stand and then upon analysis of evidence adduced by the parties, the learned First Appellate Court has observed that there is no proof of damage to the suit premises and that the ground of reasonable requirement has not been proved. So, the judgment and decree passed by the learned Trial Judge has been set aside noting the dismissal of the suit. So far as the ground of damage is concerned, the learned Commissioner has submitted a report and from his report, it reveals that the premises in suit remains closed and it is not at all used as a shop room as contended by the defendant. So far as the ground of damage is concerned, the learned Commissioner has submitted a report and from his report, it reveals that the premises in suit remains closed and it is not at all used as a shop room as contended by the defendant. There is a clear observation that the premises in suit has been kept under lock and key by the defendant/tenant. But, there is no evidence as to damage for keeping the shop room in question under lock and key. The First Appellate Court has discussed this matter in details and lastly, concluded that no decree of eviction can be passed on the ground of damage. So far as the ground of reasonable requirement is concerned, the plaintiff has contended that she requires the suit premises for starting a business. It is the specific contention of the defendant that during the pendency of the suit, the plaintiff got possession of two shop rooms. In this regard, the plaintiff herself has admitted that she got the possession of one room from a tenant who was running an electric shop, namely, ‘Trisul Electronic’ and the said shop room had been converted into a garage. So far as the other shop room is concerned, which has been described as ‘Mrityunjoy Sweets’, though the defendant has contended that the plaintiff has got possession of the said shop room, the plaintiff has denied such contention of the defendant and when the parties have adduced evidence in the Appellate Court, D.W.3 who is the husband of the tenant running the shop room under the name and style ‘Mrityunjoy Sweets’ has stated on oath that we had surrendered the tenancy of the said shop room about four years back. Though he could not state the exact date and month being four years back, it is his clear statement that he handed over the key of the said tenanted room in the hand of the husband of the plaintiff. Mr. Bidyut Kumar Banerjee, learned Senior Advocate appearing for the appellant has submitted that the appellant got possession of two shop rooms before the institution of the suit and one of such room is being used as garage but the shop room styled as ‘Mrityunjoy Sweets’ is not under the possession of the plaintiff at all. Mr. Bidyut Kumar Banerjee, learned Senior Advocate appearing for the appellant has submitted that the appellant got possession of two shop rooms before the institution of the suit and one of such room is being used as garage but the shop room styled as ‘Mrityunjoy Sweets’ is not under the possession of the plaintiff at all. Having due regard to the statement of the D.W.3 as recorded, I am of the view that this submission of Mr. Banerjee so far as this shop room is concerned cannot be accepted at all. The defendant tenant has examined the best witness who is none but the husband of the tenant of ‘Mrityunjoy Sweets’ and who had handed over the key of that shop room to the husband of the landlady. During cross-examination, I do not find anything to disbelieve in such statement of the D.W.3, Satendra Sarkar and thus, I find that the landlord got the possession of the shop room wherein the ‘Mrityunjoy Sweets’ was being carried on and that room is almost situated in the same place facing the G.T. Road and it is quite suitable for starting a new business for the plaintiff, if it is desired so. The learned Trial Judge and the First Appellate Court have recorded in details about starting of the business and they have concluded that at present there is no material to show the start of the business etc. Admittedly, the husband of the landlady is a Professor of a college. The learned Advocate for the opposite party has vehemently opposed the prayer for a decree for rejectment on the ground of reasonable requirement contending, inter alia, that the plaintiff does not require the suit premises for own use and occupation at all. This being the position, the contention of the plaintiff/appellant herein that they require the suit premises for their business cannot be accepted. Thus, both the Courts below have come to the concurrent findings that the defendant has kept his tenanted room under lock and key without carrying any business from the said shop room. But the plaintiff got the possession of another shop room which was being run by another tenant under the name and style as ‘Mrityunjoy Sweets’. She had converted another shop room into a garage. But the plaintiff got the possession of another shop room which was being run by another tenant under the name and style as ‘Mrityunjoy Sweets’. She had converted another shop room into a garage. Thus, the concurrent findings of the Courts below based on materials on record should not be interfered with and so, the First Appellate Court, in my view, has rightly held that the plaintiff has suitable accommodation to start a business, if so desired. In that view of the matter, I am of the opinion that so far as the ground of reasonable requirement is concerned, the concurrent findings which are not perverse at all, cannot be disturbed in the second appeal. I am also of the view that, in fact, there is no substantial question of law at all for decision in this second appeal on the ground of reasonable requirement. The learned First Appellate Court has rightly set aside the judgment and decree passed by the learned Trial Judge and he has rightly recorded the order of dismissal of the title suit. Accordingly, in my view, there is no scope of interference with the impugned judgment and decree. This second appeal is totally devoid of merits and is, therefore, dismissed. Considering the circumstances, there will be no order to as costs.