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2015 DIGILAW 885 (CAL)

Rahim Khan @ Totali v. Khodija @ Khodiya Khatoon

2015-10-15

DEBI PROSAD DEY, JYOTIRMAY BHATTACHARYA

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JUDGMENT : Jyotirmay Bhattacharya, J. This second appeal is directed against the judgement and decree dated 26th May, 2015 passed by the Learned Additional District Judge, Fast Track Court, Serampore in Title Appeal No. 75 of 2014 affirming the judgement and decree dated 31st August, 2002 passed by the Learned Civil Judge (Junior Division), 2nd Court, Serampore in Title Suit No. 357 of 1997, at the instance of the defendant/appellant. Let us now consider as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted under the provision of Order 41 Rule 11 of the Code of Civil Procedure, or not. The plaintiff/respondent is the transferee landlord of the defendant/appellant. After purchasing the suit property from the erstwhile admitted landlord of the defendant/appellant, the plaintiff filed a suit for eviction against the defendant/appellant on the ground of default and also on the ground of violation of the provision of Section 108(m)(o)(p) of the Transfer of Property Act. During the pendency of the said suit, the plaintiff/respondent amended the plaint and thereby incorporated an additional ground of eviction i.e., ground of reasonable requirement. Such amendment was prayed for after expiry of the restricted period as mentioned in Section 13(3A) of the West Bengal Premises Tenancy Act, 1956. The defendant/appellant contested the said suit by filing written statement denying the material allegations made out by the plaintiff in the plaint. He also filed an additional written statement denying the plaintiff’s claim for eviction on the ground of reasonable requirement. The Learned Trial Judge after considering the pleadings of the parties and their evidence was pleased to decree the suit on contest in favour of the plaintiff. An eviction decree was passed on the ground of violation of the provision of Section 108(m)(o)(p) of the Transfer of Property Act and also on the ground of reasonable requirement. Since the relief under Section 17(4) was granted to the defendant/appellant, no decree was passed on the ground of default in payment of rent against the defendant. Being aggrieved by and dissatisfied with the said judgement and decree passed by the Learned Trial Judge, the defendant/appellant preferred an appeal before the Learned First Appellate Court. The Learned First Appellate Court dismissed the said appeal and confirmed the decree, which was passed by the Learned Trial Judge. Being aggrieved by and dissatisfied with the said judgement and decree passed by the Learned Trial Judge, the defendant/appellant preferred an appeal before the Learned First Appellate Court. The Learned First Appellate Court dismissed the said appeal and confirmed the decree, which was passed by the Learned Trial Judge. Thus, the eviction decree which was passed by the Learned Trial Judge on the ground of reasonable requirement and also on the ground of violation of the provision of Section 108(m)(o)(p) of the Transfer of Property Act, was maintained by the Learned First Appellate Court. Being aggrieved by and dissatisfied with the said judgement and decree, the instant appeal has been filed by the defendant/appellant. Mr. Gayen, learned advocate appearing for the appellant submits that both the Courts below ought not to have passed any decree for eviction against the defendant/appellant on the ground of violation of provision of Section 108(m)(o)(p) of the Transfer of Property Act as the defendant though tried to raise some construction within the suit premises but ultimately did not do so. Even if we accept this contention of Mr. Gayen that no decree should have been passed by the Courts below on the ground of violation of provision of Section 108 (m)(o)(p) of the Transfer of Property Act for the reason as mentioned by Mr. Gayen still then, we hold that the decree passed by both the Courts below cannot be set aside, if we find that both the Courts below passed the decree for eviction after being satisfied about the plaintiff’s reasonable requirement of the suit premises. In this regard, Mr. Gayen, learned advocate submits that since the plaintiff is a transferee landlord, he could not have maintained the suit for eviction on the ground of reasonable requirement as the said suit was filed within 3 years from the date of his purchase. In this regard, Mr. Gayen, learned advocate submits that since the plaintiff is a transferee landlord, he could not have maintained the suit for eviction on the ground of reasonable requirement as the said suit was filed within 3 years from the date of his purchase. He further submits that though the plaintiff amended his plaint after the expiry of 3 years from the date of his purchase and thereby incorporated the additional ground of eviction i.e. the reasonable requirement but once such amended was allowed, the cause of action for the said suit for reasonable requirement of the plaintiff relates back to the date of institution of the suit and thereby the restriction of filing such suit within the period of 3 years from the date of purchase as provided under Section 13(3A) of the West Bengal Premises Tenancy Act had been attracted. Mr. Gayen thus, submits that the Learned Trial Judge ought not to have permitted the plaintiff to amend this pleading for introducing the new ground of eviction i.e. reasonable requirement of the plaintiff in such a suit. He further submits that for the reason as aforesaid, both the Courts below ought to have refused to grant eviction on the ground of reasonable requirement. We cannot accept such submission of Mr. Gayen in view of the Division Bench decision of this Hon’ble Court in the case of Sri Bapi Chatterjee vs. Smt. Arati Halder reported in 2015(1)CLJ (Cal), 96 wherein the identical contention raised by the appellant therein before the said Division Bench, was not accepted by the Division Bench of this Hon’ble Court and the decree which was passed for eviction on the ground of reasonable requirement, was maintained in the said appeal. The relevant portion of the said judgement is set out hereunder:- “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”. No other ground was argued by Mr. Gayen for challenging the impugned decree before us. No other ground was argued by Mr. Gayen for challenging the impugned decree before us. We thus, do not find involvement of any substantial question of law in this appeal. Accordingly, we decline to admit this appeal for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure. The appeal is, thus, dismissed. Re: CAN 9271 of 2015 Mr. Gayen, learned advocate appearing for the appellant however, prays for some time for enabling his client to vacate the suit premises after finding out an alternative accommodation. On his prayer, we permit the defendant/appellant to stay in the suit premises till 30th May, 2016 subject to compliance on the following conditions:- 1. The defendant/appellant will have to deposit the arrear rent/occupational charges at the rate of last paid rent upto the month of October, 2015 in the Executing Court within 30th November, 2015. 2. The defendant/appellant will also have to deposit the occupational charges of the suit premises for the month of November, 2015 @ Rs. 200/- per month in the Executing Court within 7th December, 2015. 3. The occupational charges for the subsequent months till April, 2016 should be deposited by the appellant within 7th of each following month in the Executing Court. 4. The occupational charges for the month of May, 2016 should be deposited by the appellant in the Executing Court within 15th May, 2016. 5. The appellant will have to submit an undertaking before the Learned Executing Court mentioning therein that he will vacate the suit premises and deliver up vacant and peaceful possession of the suit premises to the plaintiff/respondent on or before 30th May, 2016 and will not make any alteration and/or change in the suit premises and/or will not cause any damage therein and/or will not create any third party interest during the period of his stay in the suit premises. It is made clear that in default of compliance of any of the conditions as mentioned above, the interim stay as granted above will stand automatically vacated and in that event the appellant will be at liberty to proceed with the execution case in accordance with law. It is also made clear that in the event such deposit is made by the appellant, the plaintiff/respondent will be at liberty to withdraw the same without furnishing any security. It is also made clear that in the event such deposit is made by the appellant, the plaintiff/respondent will be at liberty to withdraw the same without furnishing any security. Such undertaking should be filed before the Learned Executing Court within two weeks after reopening of the Court after Puja Vacation. The application filed in connection with this appeal is thus, disposed of. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.