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2014 DIGILAW 254 (CAL)

Mandira Saha v. Usha Rani Upadhya

2014-03-21

PRASENJIT MANDAL

body2014
Judgment : Prasenjit Mandal, J. This second appeal is directed against the judgment and decree of reversal dated June 29, 2007 passed by the learned Judge, 12th bench, City Civil Court, Calcutta in Title Appeal No.46 of 2009 arising out of the judgment and decree dated March 27, 2003 passed by the learned Judge, Presidency Small Causes Court, 5th Bench, Calcutta in Ejectment Suit No.806 of 2000 thereby decreeing the said suit. The plaintiff/respondent/appellant herein instituted the aforesaid suit for ejectment of the defendants/respondents herein in respect of the suit premises as described in the schedule to the plaint before the learned Trial Judge on the ground of default, reasonable requirement and damages to the suit premises. The defendants/respondents herein are contesting the said suit by filing an appropriate written statement denying the material allegations raised in the plaint. They have contended that the plaintiff has no locus standi to file the suit and denied the legality and validity of the deed of purchase by the plaintiff and also the ground of default and reasonable requirement. They have also contended that they are entitled to get the benefit of Section 17(4) of the West Bengal Premises Tenancy Act as they did not avail of the same in the earlier Ejectment Suit No.1357 of 1972 as alleged. They have also contended that the plaintiff does not require the suit premises reasonably for own use and occupation. The suit was decreed on contests by the learned Trial Judge upon recording evidence on behalf of both the sides. The learned 1st Appellate Court has considered the entire materials placed before the learned Trial Judge and he has concluded that the learned Trial Judge has committed a wrong by holding that the plaintiff requires the suit premises for own use and occupation. It is also held by both the Courts below that the ground of damages has not been proved and so, no decree for eviction can be passed on the ground of damages. So far as the ground of default is concerned, the learned Appellate Court has held that the plaintiff being the owner of the property by successive purchase, cannot get the benefit of the second default and, as such, the findings of the learned Trial Judge are not correct. So far as the ground of default is concerned, the learned Appellate Court has held that the plaintiff being the owner of the property by successive purchase, cannot get the benefit of the second default and, as such, the findings of the learned Trial Judge are not correct. Thus, the learned 1st Appellate Court has set aside the judgment and decree passed by the learned Trial Judge and he has recorded the order of dismissal of the suit without costs. Being aggrieved by the said judgment and decree, the plaintiff has preferred this second appeal. At the time of admission of the appeal, the following two substantial questions of law were framed for decision:- i) Whether the learned Court of appeal below committed substantial error of law in holding that the respondents would be entitled to protection under Section 17(4) of the West Bengal Premises Tenancy Act notwithstanding the fact that, in the past, they got protection under the said Section under the previous landlord by relying upon the decision of this Court reported in 2006 (3) C.H.N. 689 which has no application in the facts of the present case. ii) Whether the learned Court of appeal below committed substantial error of law in holding that the accommodation as a licensee under the mother-in-law should be treated as reasonably suitable accommodation notwithstanding the fact that the appellant wants to stay in her own house. Upon hearing the learned Counsel for the parties and on going through the materials on record, I am of the view that it would be better to consider the substantial question of law no.(i) first. In this regard, upon referring to the decisions of 77 CWN 70, 85 CWN 447, 2002 (3) CHN 593 and 2006 (3) CHN 689 , Mr. S.P. Roy Chowdhury, learned Senior Advocate appearing for the appellant has contended that while deciding the default in payment of rent for the second time, unless the deed by which the present plaintiff had acquired right, title and interest by purchase, lays down the fact of arrears of rent to be recovered on the ground of taking benefit under Section 17(4) of the 1956 Act in the earlier suit being Ejectment Suit No.1357 of 1972, such ground should not be taken into consideration. But so far as the tenant is concerned, there can be no room for doubt that rent was payable by him whether to the transferor landlord or the transferee landlord. It would be rent due and not the money due. He has also contended that the decision of the learned 1st Appellate Court on this count, by relying on the decision of Team Consultants Private Limited v. Swapna Lahiri & Ors. reported in 2006 (3) CHN 689 , is totally misconceived and, in fact, this decision does not lay down anything as to the benefit to be given under the provisions of 17(4) of the 1956 Act. Mr. S.P. Roy Chowdhury has also contended that this finding cannot be supported and that is why, the substantial question no.(i) has been framed. He has also contented that, in order to claim a relief by the landlord on the ground of reasonable requirement, the plaintiff is required to show his requirement of the premises in suit is for bona fideness and reasonableness in claiming possession and such contention of the landlord must be proved. The learned 1st Appellate Court has committed a wrong that the accommodation of the plaintiff cannot be treated as a licensee under the mother-in-law and so, the requirement as sought for should be treated as reasonably suitable accommodation, notwithstanding the fact that, the appellant wants to stay in her own house. The learned 1st Appellate Court has failed to consider that the possession of the plaintiff’s present accommodation being precarious and temporary, a decree of ejectment on the ground of reasonable requirement should have been passed. In support of his contention, he has relied on the decision of Julieta Antonieate Tarcato v. Suleiman Ismail reported in 2007 (2) CHN (Sc) supp. 120 and the decision of Smt. Sumilita Bhattacharya & Anr. v. Smt. Nila Chatterjee reported in 1989 (2) CHN 351. In support of his contention, he has relied on the decision of Julieta Antonieate Tarcato v. Suleiman Ismail reported in 2007 (2) CHN (Sc) supp. 120 and the decision of Smt. Sumilita Bhattacharya & Anr. v. Smt. Nila Chatterjee reported in 1989 (2) CHN 351. He has also contended that the landlord is the best judge to decide whether the room in question is suitable for the purpose for which the landlord wants eviction of the tenant and thus, he has relied on the decisions of 1996 (5) SCC 344 , 2000 (1) SCC 679 , 2008 (8) SCC 497 , 2003 (1) SCC 462 & 2002 (1) SCC 329 He has also contended that some discretion should be left with the landlord for taking his own decision and the Courts should not impose their wisdom as to how the landlord should arrange his affairs and ought not to have carried away the sympathy for the tenant. He has also contended that once the landlord is able to show the bona fide claim to get the possession of the room in question, the choice of accommodation which would satisfy his requirement should be left to the landlord’s subjective choice. The Court cannot impose its own choice. He has also contended that a completely new point raised before the High Court for first time would not be a question involved in the case unless it went to the root of the matter. Lastly, Mr. Roy Chowdhury has contended the meaning of substantial question of law within the domain of Section 100 of the C.P.C. and thus, he has contended that the substantial question means having substance, essential, real or sound worth, important or considerable. Such questions need not be however of general importance. According to the provisions contained in the West Bengal Premises Tenancy Act, if a tenant once obtained the benefit of Section 17(4) of the Act, he will not get such protection against eviction in case of a second default if such second default is for more than four months within a period of twelve months in respect of the self-same tenancy. Thus, Mr. Roy Chowdhury has contended that this appeal should be allowed setting aside the judgment and decree of the learned 1st Appellate Court. On the contrary, Mr. Thus, Mr. Roy Chowdhury has contended that this appeal should be allowed setting aside the judgment and decree of the learned 1st Appellate Court. On the contrary, Mr. Aniruddha Chatterjee, learned Advocate appearing for the petitioner has submitted that so far as the ground of default is concerned in Ejectment Suit No.1357 of 1972, the landlord was a completely different person and thereafter, several transfers took place and ultimately, the present plaintiff purchased the premises in suit and when several transfers had taken place, the benefits obtained under Section 17(4) of the 1956 Act, in 1978 should not be the matter of consideration. At present, when the ownership has been changed and the original tenancy ceases to continue, it should be presumed that a fresh tenancy has been created between the tenant and the person to whom he has subsequently paid rent. In support of his contention Mr. Chatterjee has relied on the decision of Team Consultants Private Limited v. Swapna Lahiri & Ors. reported in 2006 (3) CHN 689 . He has also referred to the decision of G. Jerambhai v. U.D. Banerjee reported in 77 CWN 70 and particularly the paragraph nos.21 and 22 of the said decision in detail. Thus, he has submitted that it should be seen whether the conduct of the tenant amounts to forfeiture of his claim to protection against eviction under Section 17(4) in the instant situation. It was held in 77 CWN 70 that the suit for ejectment is maintainable on the specific terms of the assignment. Mr. Chatterjee has also contended that chain of events disclosed in the petition cannot, at all, be regarded as subsequent events because those as alleged to have taken steps prior to the institution of the suits and the plaintiff/appellant himself has admitted this in the said petition. Any event after filing of the suit cannot be taken as subsequent event for taking into consideration without the same being pleaded by way of amendment. Such submission has been made with regard to the contention of reasonable requirement and he has relied on the decisions of 2004 (1) CHN 552 , 1989 (2) CLJ 170 and AIR 1985 Cal 213. Such submission has been made with regard to the contention of reasonable requirement and he has relied on the decisions of 2004 (1) CHN 552 , 1989 (2) CLJ 170 and AIR 1985 Cal 213. Having due regard to the submissions of the learned Advocates of both the sides and on perusal of the materials on record, I find that the original landlord had transferred the premises in suit to a third party and in this way by successive transfers, the present plaintiff became the owner of the suit premises and as such, the sale deed of the plaintiff does not lay down as to the incumbency by the tenant over the suit premises. Under such circumstances, relying on the paragraph no.20 of the decision of Team Consultants Private Limited (supra), the learned 1st Appellate Court has held that the present tenancy being not in continuity of the earlier one, it cannot be said that the appellant (respondent herein) is a defaulter for second time in respect of the self-same tenancy. So far as the ground of default is concerned, in my view, the learned 1st Appellate Court has wrongly held that the present tenancy being not in continuity with the earlier one, it cannot be said that the appellant (respondent herein) is a defaulter for second time in respect of the self-same tenancy. He has wrongly placed reliance on 2006 (3) CHN 689 . Rather the decision of 77 CWN 70 and 2002 (3) CHN 593 , in my view, will prevail on the decision of 2006 (3) CHN 689 . As per material exhibit no.4, the predecessor-in-interest of the defendant got the benefit of Section 17(4) of the 1956 Act in Ejectment Suit No.1357 of 1972. In the instant suit it has been held by the learned Trial Judge that the defendant is a defaulter in payment of rent for 150 months till November 2000 (vide Order No.175 dated December 7, 2000 of the learned Trial Judge) and accordingly the application of the defendant under Section 17(2) and (2A)(b) of the 1956 Act was disposed of. The defendant had complied with such order. The learned Trial Judge, in my view, has rightly held that the defendant is not entitled to get protection under Section 17(4) for the second time. The defendant had complied with such order. The learned Trial Judge, in my view, has rightly held that the defendant is not entitled to get protection under Section 17(4) for the second time. The learned 1st Appellate Court has, therefore, committed a substantial error of law in relying on the decision of 2006 (3) CHN 689 thereby setting aside the benefit of Section 17(4) of the 1956 Act to the plaintiff. According to the provisions contained in the West Bengal Premises Tenancy Act, if a tenant once obtained the benefit of Section 17(4) of the Act, he will not get such protection against eviction in case of a second default if such second default is for more than four months within a period of twelve months in respect of the self-same tenancy. It is not the matter whether such default is under the previous landlord or the present landlord in view of the decisions of 77 CWN 70 and 2002 (3) CHN 593 . Therefore, in my view, so far as the ground of default is concerned, the learned 1st Appellate Court has committed substantial error of law by relying on the aforesaid decision of Team Consultant Private Limited (supra). The suit should be decreed on the ground of default of the second time. The substantial question of law No.(i) is, thus, decided. So far as the ground of reasonable requirement is concerned, after consideration of the several decisions of this Hon’ble Court as referred to above and the Apex Court decision on the matter particularly with reference to the provisions of Section 13(3A) of the 1956 Act, in my view, in a suit instituted previously by another landlord, the transferee landlord can claim the ground of reasonable requirement by amendment under Section 13(3A) of the 1956 Act after completion of three years from the date of purchase. In the instant case, the landlady, i.e., the motherin-law of the tenant having died, the husband of the tenant being the son of the landlady had acquired right, title and interest in the premises in suit and so, the possession of the tenant with regard to the suit premises at present cannot be stated as precarious at all. Moreover, as per evidence on record, the plaintiff/landlord had another rented house at Beniatola Street. As per materials on record, the extent of such accommodation has not come in the picture at all. Moreover, as per evidence on record, the plaintiff/landlord had another rented house at Beniatola Street. As per materials on record, the extent of such accommodation has not come in the picture at all. Further, in my view, the learned 1st Appellate Court has rightly held that the accommodation by the daughter-inlaw under the mother-in-law cannot be treated at all as precarious inasmuch as the tenant is a member of the family of the plaintiff who had purchased the suit premises subsequently. Several deeds had been done in respect of the entire building such as in the name of the husband of the plaintiff, the plaintiff herself and a son of the plaintiff and now, the mother-in-law has claimed ejectment against the daughter-in-law contending that since the mother-in-law has claimed possession of the suit property, the possession of the tenant is precarious with regard to the suit premises. Upon analysis of evidence, the learned 1st Appellate Court has held that there is nothing to hold conclusively that the tenants/respondents are being threatened by the mother-in-law for eviction on the ground that the daughterin-law is a licensee. On the basis of the evidence on record, the learned 1st Appellate Court has also come to the conclusion that as per evidence on record and the commissioner’s report, the accommodation of the plaintiff presently is sufficient for the other members after the demise of the plaintiff. In my view, the learned 1st Appellate Court has rightly held that the plaintiff has miserably failed to establish that she requires the suit premises for her own use and occupation and that her present accommodation is neither sufficient nor safe. Therefore, this being the position, the findings as recorded above by the learned 1st Appellate Court, cannot be described as perverse at all. He has not committed substantial error in law in coming to the decision on the point no.(ii). Accordingly, in my view, the plaintiff/appellant herein is entitled to get a decree of eviction on the ground of default for the second time. Thus, the two substantial questions of law are answered. In the result, the judgment and decree of the learned 1st Appellate Court must be set aside. The judgment and decree passed by the learned Trial Judge for ejectment on the ground of default shall be affirmed. Accordingly, this second appeal is disposed of to the extent indicated above. Thus, the two substantial questions of law are answered. In the result, the judgment and decree of the learned 1st Appellate Court must be set aside. The judgment and decree passed by the learned Trial Judge for ejectment on the ground of default shall be affirmed. Accordingly, this second appeal is disposed of to the extent indicated above. The judgment and decree of ejectment on the ground of default as passed by the learned Trial Judge is hereby affirmed. The respondents are directed to vacate the suit premises in favour of the plaintiff/appellant herein within thirty days hereof, failing which the plaintiff/appellant herein would be at liberty to execute the decree through the Court. The plaintiff/appellant herein do also get a decree of mesne profits against the defendants from the date of institution of the suit till the delivery of possession, the quantum of which shall be determined in a separate proceeding under Order 20 Rule 12 of the C.P.C. Considering the circumstances, there will be no order as to cost. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.