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2014 DIGILAW 532 (CAL)

Murali Dhar Das v. Protiva Rani Chakraborty

2014-06-19

DEBANGSU BASAK

body2014
JUDGMENT Debangsu Basak, J. A tenant assailed a judgment of affirmation of a decree of eviction against him in the present second appeal. The respondent filed a suit for eviction of the appellant on the ground of reasonable requirement. Six issues were framed for trial. The appellant contended that the notice to quit was not received by him. Moreover, the suit property was not reasonably required by the respondent. The second appeal was admitted by an order dated January 16, 2006 and was directed to be heard on the following substantial question of law:- 1. Whether the learned court of appeal below committed substantial error of law in rejecting an application for amendment of written statement filed by the appellant during the pendency of the appeal alleging that during the pendency of such appeal the plaintiff-respondent constructed two further spacious rooms. It was contended on behalf of the appellant that, the suit premises was not reasonably required by the respondent. In order to establish that the suit premises were not reasonably required, the appellant wanted to amend its written statement and applied for the same before the First Appellate Court. The First Appellate Court rejected such application. Although no revisional application was filed against the order of rejection to amend the written statement, it was contended on behalf of the appellant that he was entitled to urge the point of erroneous rejection of such application in course of hearing of the second appeal. It was submitted that by way of the proposed amendment to the written statement, the appellant wanted to place on record that two additional rooms were available to the respondent and, therefore, the tenancy premises were not reasonably required by the respondent. It was next contended that, the ground of reasonable requirement was not adequately proved before the two courts below. It was contended that, the Trial Judge erred by failing to take into consideration that two sons of the three sons of the appellant were not residing with the appellant at the premises where the tenancy was located and, therefore, the need of the respondent at such premises was wrongly evaluated. The First Appellate Court did not deal with such issue elaborately. The First Appellate Court did not deal with such issue elaborately. It was also contended that the Trail Judge erred in not taking assistance of a hand writing expert to arrive at the finding that the notice to quit was received by the appellant when the appellant disputed his signature on the acknowledgement due card. The First Appellate Court did not allude to that aspect at all. On behalf of the appellant it was contended that, the First Appellate Court affirmed the judgment of the learned Trial Judge mechanically and that adequate reasons for affirmation were absent in the impugned judgment. The appellant did not confine his contentions to the substantial question of law framed by the order dated January 16, 2006 only in the course of hearing of the second appeal. On behalf of the respondent it was contended that, the Trial Court came to a finding that the family of the respondent consisted of 11 members. There were 6 rooms at the premises in which the tenancy was located leaving aside the tenancy room. Therefore, in aggregate there were 7 rooms at the premises for 11 members of the family. All the family members were adult. The decree of the Trial Judge was dated November 16, 1999. The need for accommodation increased with the passage of time. The learned Trial Judge disallowed a room to a granddaughter in 1999. Such grand-daughter with the passage of time obviously was in need of a room. It was submitted that the ground of reasonable requirement was more than adequately established in the facts and circumstances of the case. The very fact that the family of the respondent was found to consist of 11 members with only 7 rooms being available including the tenancy room established the reasonable requirement ground of the respondent. It was next submitted that, the finding of the Trial Judge that the appellant received the notice to quit by putting his signature on the acknowledgement due card was not challenged in the first appeal. In absence of such challenge the appellant ought not to be allowed to urge such ground in the second appeal. It was next contended that the First Appellate Court considered the contentions raised on behalf of the appellant before it and gave adequate reasons for rejecting such contentions. There was no illegality or infirmity in the reasons given by the First Appellate Court. It was next contended that the First Appellate Court considered the contentions raised on behalf of the appellant before it and gave adequate reasons for rejecting such contentions. There was no illegality or infirmity in the reasons given by the First Appellate Court. It was contended on behalf of the respondent that, the substantial question of law framed by the order dated January 16, 2006 did not arise in the facts and circumstances of the instant case. Even if the amendment to the written statement as prayed for by the appellant was allowed then too the ground of reasonable requirement was established. It would appear from the record that, the fact that the family of the respondent consisted of 11 members was not assailed. In the event, the written statement was allowed to be amended then in such eventuality the suit premises would consist of nine rooms which would nonetheless be inadequate considering the size of the family of the respondent. It was contended that the application for amendment of the written statement was a mechanism to delay the disposal of the eviction suit. The Trial Judge had ordered a commission to inspect the premises. Such commission was held in presence of the appellant. The commission returned a finding of availability of six rooms in the premises excluding the tenancy room. At trail before the learned Trial Judge it was contended that the respondent had additional two rooms which they kept under lock and key. Such fact did not appear from the report of the commissioner. Such contention of the appellant was rightly rejected by the learned Trial Judge. The rival contentions of the parties and the materials on record including the impugned judgment were considered by me. The tenancy involved in the suit was a room with common user of bath and privy. The monthly rent was Rs. 12/- payable according to the English calendar month. The suit was for eviction on the ground of reasonable requirement. In spite of the notice to quit the appellant did not vacate the suit premises constraining the respondent to file the suit for eviction. The appellant denied receipt of the notice to quit. The appellant contended that the tenancy premises were not reasonably required by the respondent. On consideration of the evidence led the learned Trial Judge found the notice to quit to be received by the appellant. The appellant denied receipt of the notice to quit. The appellant contended that the tenancy premises were not reasonably required by the respondent. On consideration of the evidence led the learned Trial Judge found the notice to quit to be received by the appellant. Notice to quit was served on the appellant by registered post with acknowledgement due card. The signature appearing on the acknowledgement due card was compared with the signature of the appellant appearing on the vakalatnama executed by the appellant as well as the petition filed by the appellant before the Trial Court and upon consideration of such signatures the learned Trial Judge arrived at the finding that the signature appearing on the acknowledgement due card was that of the appellant. Consequently the learned Trial Judge proceeded to hold that the notice to quit was served upon the appellant. The notice to quit was otherwise sufficient. On the score of reasonable requirement the learned Trial Judge found that the family of the appellant consisted of 11 members and that 7 rooms including the tenancy room were available at the premises. The learned Trial Judge found that the tenancy of the appellant was reasonably required by the respondent. The learned Trial Judge proceeded to decree the suit in favour of the respondent. Aggrieved by the decree of eviction the appellant carried an appeal therefrom. On appeal the appellant urged that the respondent did not establish reasonable requirement. Such contention of the appellant was considered by the First Appellate Court. The First Appellate Court considering the contentions raised before it and the materials on record concurred with the findings of the learned Trail Judge. The appeal was dismissed with costs. The appellant was directed to deliver vacant possession of the suit premises to the respondent within three months from the date of such judgment. The suit was for eviction on the ground of reasonable requirement. The commissioner appointed by the Trial Court to evaluate the accommodation available to the respondent and the appellant returned a finding that there were six rooms available to the respondent. The contention of the appellant that two additional rooms were available to the respondent which the respondent allegedly kept under lock and key was not borne out from the report of the commissioner. The size of the family of the respondent was found to be consisting of 11 members. The contention of the appellant that two additional rooms were available to the respondent which the respondent allegedly kept under lock and key was not borne out from the report of the commissioner. The size of the family of the respondent was found to be consisting of 11 members. The respondent was married with her husband living with her. The respondent had three sons all married. There were three grand children of the appellant. All the 11 family members were adult. The respondent, therefore, required one bedroom for her and her husband, one bedroom each for her three sons and one bedroom each for her grand children. Apart from the bedrooms the respondent required a kitchen, a drawing and a dining room and a room for worship. The requirement of the respondent, therefore, was 8 bedrooms leaving aside everything else. The building consisted of 6 rooms apart from the tenancy room. Even if the two rooms, claimed by the appellant to be in existence although not borne out from the report of the commissioner and disbelieved concurrently by the courts below, were taken into account, the requirement of the respondent for rooms were in excess of the rooms available at the premises. No evidence was brought on record before the First Appellate Court to suggest that the respondent built two new rooms at the premises during the pendency of the appeal. That the respondent had two additional rooms which the respondent kept under lock and key was a fact which the appellant urged unsuccessfully at the trial stage. The prayer for amendment of the written statement at the First Appellate Court stage was a dilatory tactic of the respondent. Law required an application for amendment of pleadings to be considered leniently, more so when the application was for amendment of written statement. However, law did not permit any party to misuse such lenient considerations to achieve an oblique purpose. The First Appellate Court did not commit any error of law rejecting the application for amendment of written statement. Moreover, even if the two non-existent rooms were taken into consideration the number of rooms in the premises would go upto 9 rooms including the tenancy room for a family of 11 adult members and would not satisfy the requirement of the respondent. Moreover, even if the two non-existent rooms were taken into consideration the number of rooms in the premises would go upto 9 rooms including the tenancy room for a family of 11 adult members and would not satisfy the requirement of the respondent. The learned Trial Judge considered the aspect of reasonable requirement elaborately and came to the finding that the reasonable requirement was established. The First Appellate Court concurred with the findings of the learned Trial Court. No material was placed before me warranting arrival at a finding contrary to that of the concurrent findings of the Courts below on the point of reasonable requirement. The appellant denied having received the notice to quit. The notice to quit was served by registered post with acknowledgement due card. The acknowledgement due card bore a signature. It was claimed on behalf of the appellant that the signature appearing on the acknowledgement due card was not his. An issue with regard thereto was framed for trial. The learned Trial Judge while considering such issue compared the signature appearing on the acknowledgement due card with those of the admitted signatures of the appellant and came to the conclusive finding that the signature appearing on the acknowledgement due card was of the appellant. This aspect of the finding of the learned Trial Judge was not assailed on first appeal. The first appeal was confined to the question of reasonable requirement only. Even in course of the hearing of the second appeal it was not demonstrated on behalf of the appellant that the finding arrived at by the learned Trial Judge on that score was erroneous. The only contention was that the learned Trial Judge ought to have taken the assistance of a hand writing expert to compare the signatures. No law was cited before me that the learned Trial Judge was obliged to take the assistance of a hand writing expert in such circumstances or that he mis-conducted the trial by comparing the disputed signature with that of the admitted ones to arrive at the findings recorded in the judgment. The appellant, therefore, could not substantiate the substantial question of law framed at the time of admission of the second appeal. No interference was called for with the judgment and decree impugned. In such circumstances I do not find any merit in the second appeal. The appellant, therefore, could not substantiate the substantial question of law framed at the time of admission of the second appeal. No interference was called for with the judgment and decree impugned. In such circumstances I do not find any merit in the second appeal. S.A. No. 327 of 2010 is, therefore, dismissed however, without any order as to costs. All interim orders passed are vacated. Lower Court records be returned expeditiously.