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2014 DIGILAW 56 (CAL)

Jyotirmoy Ghosh v. Allahadi Naskar

2014-01-24

PRASENJIT MANDAL

body2014
Judgment : Prasenjit Mandal, J. This Second Appeal is at the instance of the plaintiff and is directed against the judgment and decree dated June 17, 2004 passed by the learned Additional District & Sessions Judge, Fast Track 5th Court, Alipore in Title Appeal No.246 of 2003 thereby reversing the judgment and decree dated September 24, 2003 passed by the learned Civil Judge (Junior Division), First Additional Court, Alipore in Title Suit No.9 of 1999. The plaintiff/appellant herein filed the aforesaid suit against the respondent for eviction on the ground, inter alia, default, reasonable requirement, etc. 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 and on the basis of the evidence on record, the learned Trial Judge has decreed the suit for eviction holding, inter alia, that the defendant is a defaulter in payment of rent. The defendant preferred an appeal being Title Appeal No.246 of 2003 which was allowed on contests thereby reversing the judgment and decree passed by the learned Trial Judge. Being aggrieved, the plaintiff has preferred this second appeal. The following substantial questions of law have been framed for decision in this Second Appeal:- I) For that the Learned Appellate Court below has committed serious errors by holding that the appellant’s claim for eviction on the ground of reasonable requirement under Section 13(1)(ff) of the West Bengal Premises Tenancy Act, 1956 is not maintainable in view of the embargo of Sub- Section 3A of Section 13 of the said Act. The said finding of the Learned Appellate Court below is an outcome of his misconception of law, he has failed to appreciate the latest position of law on the issue though specifically pointed out, with reference to the Division Bench Judgment of this Hon’ble Court. The said finding of the Learned Appellate Court below is an outcome of his misconception of law, he has failed to appreciate the latest position of law on the issue though specifically pointed out, with reference to the Division Bench Judgment of this Hon’ble Court. II) For that the Learned Appellate Court below has gone out of the way and dehors the statute by accepting the deposits made by the defendant/tenant/respondent by way of condition of stay of the decree passed earlier ex parte, during pendency of the tenants’ application under Order 9 Rule 13 of the Code of Civil Procedure as deposits under Section 17(1) or Section 17(2) of the West Bengal Premises Tenancy Act, 1956 and also the deposits made out of time as valid deposit without any reason which he cannot, when he has categorically accepted the reasoned finding of the Learned Trial Court to the effect that, the respondent is a defaulter. III) For that the Learned Appellate Court below has failed to make a clear distinction between two status of the appellant one as tenant under his father and the other as son, though he has appreciated that there is no difficulty of the appellant for being a tenant under his father upon payment of rent, he has failed to appreciate that the son cannot claim as of right accommodation from the father for the purpose of the appellant’s business (which in fact the father has none, in view of occupation by other tenants) and the appellant is not supposed to approach his father for further accommodation when sufficient accommodation is available for him to carry on his business by evicting the tenant form his own property. Upon hearing the learned Counsel for the appellant and on going through the materials on record, I find that the relevant suit is for ejectment of a tenant from the premises in suit as described in the schedule to the plaint on the ground, inter alia, default and reasonable requirement. So far as the ground of reasonable requirement is concerned, I find that both the Courts below have come to a concurrent finding to the effect that the plaintiff does not reasonably require the suit premises for his business purpose and as such, the prayer for recovery of possession on the ground of reasonable requirement had been rejected. So far as the ground of reasonable requirement is concerned, I find that both the Courts below have come to a concurrent finding to the effect that the plaintiff does not reasonably require the suit premises for his business purpose and as such, the prayer for recovery of possession on the ground of reasonable requirement had been rejected. I find that both the Courts below have analyzed the evidence on record in a correct approach and they have come to the said conclusion that the plaintiff does not reasonably require the suit premises for his occupation and business. Therefore, the concurrent views in this regard, based on the evidence, in my view, should not be disturbed and this ground is set at rest. So far as the ground of default is concerned, I find that the plaintiff has contended that the defendant is a defaulter in payment of rent at the rate of Rs.12/- per month in respect of the premises in suit payable according to the English calendar month since July 1978. While disposing of the application under Section 17(2) & 2A(a & b) of the West Bengal Premises Tenancy Act, 1956, upon analysis of the evidence adduced by the parties, the learned Trial Judge has come to the conclusion that the defendant was adjudged as a defaulter in payment of rent from January, 1987 to June 1987 and again from February 1988 to January 1989 totaling Rs.231/- by five instalments (Vide Order No.100 dated December 13, 1999). It is pertinent to mention that the suit was decreed ex parte in 1984 and, thereafter, the defendant filed an application under Order 9 Rule 13 of the C.P.C. and prayed for stay of the execution of the decree. While dealing with the said application for stay, the learned Trial Judge passed a conditional order of stay to the effect that the defendant would pay all the outstanding rent. Subsequently, the ex parte decree was set aside and the defendant filed an application under Section 17(2) & 2A(a & b) of the West Bengal Premises Tenancy Act, 1956. That application was disposed of on contests by the learned Trial Judge by the aforesaid Order No.100 dated December 13, 1999 thereby adjudging the defendant as defaulter in payment of rent for the period already indicated and the mode of payment by instalments. That application was disposed of on contests by the learned Trial Judge by the aforesaid Order No.100 dated December 13, 1999 thereby adjudging the defendant as defaulter in payment of rent for the period already indicated and the mode of payment by instalments. Although the defendant was directed to pay up such nominal amount of arrears of rent by five instalments, but, the materials on record does not show that the defendant had ever complied with the said order on the application under Section 17(2) & 2A(a & b) of the 1956 Act. As per materials on record, the contention of the defendant is that, he has already paid the arrears of rent as per direction of the Court while dealing with the application for stay in respect of the misc. case under Order 9 Rule 13 of the C.P.C. He had paid all arrears of rent. In my view, the deposit of certain amount equivalent to the arrears of rent in compliance with the direction on the application for stay of the execution of the decree, cannot have any bearing on the order passed on the application under Section 17(2) & 2A(a & b) of the 1956 Act unless there is a clear indication of adjustment while adjudging the said application under Section 17(2) etc. of the 1956 Act. The deposit of money as a condition of stay of the execution case is to be dealt with separately and it may be adjusted against any arrears of rent or future rent to be paid by the tenant, but, there is no clear indication in the Order No.100 dated December 13, 1999 as to adjustment of such amount. So, in my view, the defendant is bound to comply with the orders passed on the application under Section 17(2) & 2A(a & b) of the 1956 Act for protection against eviction on the ground of default. In the instant case, there being no direction for adjustment, while disposing of the 17(2) matter, in my view, the learned Trial Judge has rightly held that there is no compliance with the Order No.100 dated December 13, 1999. In the instant case, there being no direction for adjustment, while disposing of the 17(2) matter, in my view, the learned Trial Judge has rightly held that there is no compliance with the Order No.100 dated December 13, 1999. He has also held that the current rent being not paid within the statutory time, the defendant is not entitled to get the benefit of Section 17(4) of the 1956 Act and, in my view, the learned Trial Judge has rightly held that the defendant is a defaulter in payment of rent. But the learned First Appellate Court has wrongly observed that the deposit made as a condition of stay of the decree shall be treated as deposits under Section 17(1) or Section 17(2) of the 1956 Act and that those deposits are valid. Since the deposit made on the application for stay is purely related to a condition for stay that could be adjusted as per prayer of the defendant. In my view, since no prayer was made for adjustment by the defendant against the arrears of rent, he (defendant) is bound to comply with the order dated December 13, 1999. Therefore, the findings of the learned Trial Judge relating to default, in my view, should be sustained and that the learned First Appellate Court cannot be sustained. So, the ground of default stands proved. As regards, ejectment notice, I find that both the Courts below have come to a concurrent finding as to service based on materials on record, and so, such findings are not perverse at all and so, there is no scope of interference with such findings. From the materials on record, it is apparent that the plaintiff has become the owner of the suit property by purchase subsequently, though initially he claimed as a tenant under his father. In that view of the matter, the substantial questions of law are thus, answered and the ground of default has been proved. The plaintiff is entitled to get a decree of recovery of possession against the defendant/respondent herein in respect of the suit premises. The learned First Appellate Court has, therefore, failed to appreciate the evidence on record. Accordingly, in my view, the judgment and decree passed by the learned First Appellate Court cannot be sustained and that the judgment and decree passed by the learned Trial Judge should be sustained. The learned First Appellate Court has, therefore, failed to appreciate the evidence on record. Accordingly, in my view, the judgment and decree passed by the learned First Appellate Court cannot be sustained and that the judgment and decree passed by the learned Trial Judge should be sustained. The Second Appeal, therefore, succeeds and the same is allowed. The judgment and decree passed by the learned First Appellate Court stands set aside and the judgment and decree passed by the learned Trial Judge stands affirmed. Considering the circumstances, there will be no order as to cost.