Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 905 (CAL)

Lalan Prashad v. Parimal Chandra Das

2016-11-22

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

body2016
JUDGMENT : Jyotirmay Bhattacharya, J. 1. This second appeal is directed against the judgment and decree dated 28th August, 2015 passed by the learned Civil Judge (Senior Division), 6th Court, Alipore in Ejectment Appeal No. 13 of 2014 reversing the judgment and decree dated 31st January, 2014 passed by the learned Civil Judge (Junior Division), 1st Court, Alipore in Ejectment Suit No. 209 of 2004 at the instance of the defendant/appellant. 2. Let us now consider the merit of the appeal to find out as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure or not. 3. Here is the case where we find that the plaintiff/respondent filed a suit for eviction against the defendant/appellant on the ground of reasonable requirement. The defendant appeared in the said suit and contested the same by filing written statement, denying the allegations made out in the plaint. 4. Learned Trial Judge after considering the pleadings of the parties as well as their evidence though came to the conclusion that the plaintiff being the owner/landlord of the suit premises reasonably requires the suit premises for his own use and occupation and for the occupation of his family members and the plaintiff has no other alternative suitable accommodation elsewhere to satisfy his requirement, but the learned Trial Judge ultimately dismissed the suit by holding that a new relationship of landlord and tenant was created during the pendency of the suit by way of acceptance of rent by the landlord from his tenant during the pendency of the suit. 5. Admittedly the landlord during the pendency of the suit accepted the rent for the period from June 2007 to December 2007 upon grant of receipts. The suit was filed in 2004. The suit was disposed of by passing the judgment on 31st January, 2014. Thus, it appears from the record that rent was realised by the plaintiff/respondent from the defendant/appellant during the pendency of the suit. In this context, the learned Trial Judge held that by payment and acceptance of rent between the parties during the pendency of the suit, a new relationship of landlord and tenant was created between the parties and as such, the suit is not maintainable. Mr. In this context, the learned Trial Judge held that by payment and acceptance of rent between the parties during the pendency of the suit, a new relationship of landlord and tenant was created between the parties and as such, the suit is not maintainable. Mr. Ghosh Dostidar, learned advocate appearing for the defendant/ appellant has supported this part of the findings of the learned Trial Judge. 6. Learned first Appellate Court, however, reversed such findings of the learned Trial Judge by referring to the provision contained in Section 24 of the West Bengal Premises Tenancy Act, 1997. The legality of such findings of the learned first Appellate Court is under challenge in this appeal. 7. Let us now consider as to how far the findings of the learned Trial Judge is acceptable with reference to the provision of the West Bengal Premises Tenancy Act, 1997. 8. Let us first of all consider the provision of Section 24 of the said Act which runs as follows:- “24. Savings as to acceptance of rent. – The withdrawal of rent deposited in the prescribed manner shall not operate as an admission against the person withdrawing it of the correctness of the rent or the rate thereof, the period of default, the amount due or any other fact stated in the application of the tenant for depositing the rent under sub-section (1) of section 22, nor shall it operate as a waiver of any notice to quit given by him to the tenant.” 9. The said provision, thus, makes it clear that acceptance of rent will not operate as waiver of the notice to quit given by him to the tenant. The said provision also makes it clear that even withdrawal of rent shall not operate as an admission against the person withdrawing it of the correctness of the rent or the rate thereof, the period of default, the amount due or any other fact stated in the application of the tenant for depositing the rent under sub-section (1) of section 22. This provision thus makes it clear that even after withdrawing the rent deposited, the landlord can still question the correctness of the rent deposited or the rate thereof, the period of default, the amount due or any other fact as stated in the application under Section 22(1) of the said Act. 10. This provision thus makes it clear that even after withdrawing the rent deposited, the landlord can still question the correctness of the rent deposited or the rate thereof, the period of default, the amount due or any other fact as stated in the application under Section 22(1) of the said Act. 10. Section 25 of the said Act is also required to be considered in this regard. Section 25 runs as follows:- “25. Where there shall be a waiver of default. – Where there is no proceeding pending for the recovery of possession of the premises, the acceptance of rent in respect of the period of default in payment of rent by the landlord from the tenant shall operate as a waiver of such default.” 11. The provision of Section 25 of the said Act has no application in the facts of the instant case as the said provision deals with a situation where such rent is accepted at a point of time when no proceeding for recovery of possession of the suit premises is pending. Here in the instant case, the rent was accepted during the pendency of the suit. 12. In this context, let us now consider as to how far such acceptance of rent during the pendency of the suit can make the plaintiff non-suited on the ground as mentioned by the learned Trial Judge in the judgment. 13. To find out the answer to this problem, we are required to consider the definition of “tenant” as defined in Section 2(g) of the said Act. 13. To find out the answer to this problem, we are required to consider the definition of “tenant” as defined in Section 2(g) of the said Act. Section 2(g) of the said Act runs as follows:- “2.(g) “tenant” means any person by whom or on whose account or behalf the rent of any premises is or, but for a special contract, would be payable, and includes any person continuing in possession after termination of his tenancy and, in the event of death of any tenant, also includes, for a period not exceeding five years from the date of death of such tenant or from the date of coming into force of this Act, whichever is later, his spouse, son, daughter, parent and the widow of his predeceased son, who were ordinarily living with the tenant up to the date of death of the tenant as the members of his family and were dependent on him and who do not own or occupy any residential premises, and in respect of premises let out for non-residential purpose his spouse, son, daughter and parent who were ordinarily living with the tenant up to the date of his death as members of his family and were dependant on him or a person authorised by the tenant who is in possession of such premises, but shall not include any person against whom any decree or order for eviction has been made by a court of competent jurisdiction: Provided that the time limit of five years shall not apply to the spouse of the tenant who was ordinarily living with the tenant up to his death as a member of his family and was dependent on him and who does not own or occupy any residential premises: Provided further that the son, daughter, parent or the widow of the predeceased son of the tenant who was ordinarily residing with the tenant in the said premises up to the date of death of the tenant as a member of his family and was dependent on him and who does not own or occupy any residential premises, shall have a right of preference for tenancy in a fresh agreement in respect of such premises or condition of payment of fair rent. This proviso shall apply mutatis-mutandis to premises let out for non-residential purpose.” 14. This proviso shall apply mutatis-mutandis to premises let out for non-residential purpose.” 14. If the said definition of “tenant” is read minutely, then it will appear therefrom that it is an inclusive definition which suggests that not only the person by whom or on whose account or behalf the rent of any premises is payable, but also in the event of death of such tenant, some of his heirs as specified in the said section subject to satisfying some conditions mentioned therein will continue to be a tenant for the period as mentioned therein. But, the last part of the said definition which says that “but shall not include any person against whom any decree or order for eviction has been made by a court of competent jurisdiction” is a very relevant consideration for the present purpose. 15. Thus, if the said definition is considered as a whole, it appears to us that a tenant or on his death, his specified successors satisfying the condition for becoming a tenant by succession will become a tenant for the specified period and such tenancy will continue so long as a decree of eviction is not passed by any court of competent jurisdiction. This necessarily follows that so long as a decree of eviction is not passed by any court of competent jurisdiction against a tenant, the tenancy will continue and the tenant will be regarded as a tenant and as such his liability to pay rent to the landlord even during the pendency of the suit will continue. In this regard, we are also required to consider the provision contained in Section 6(4) of the said Act which deals with service of ejectment notice upon the tenant. The said provision runs as follows:- “6(4). Notwithstanding anything in any other law for the time being in force, no suit for the recovery of possession of any premises on any of the grounds as aforesaid, except on the ground mentioned in clause (e) of sub-section (1), shall be instituted by the landlord unless he has given to the tenant one month’s notice expiring with a month of the tenancy.” 16. On reading of the said provision, it appears to us that Section 6(4) of the said Act contemplates service of notice of suit in case eviction is sought for on any of the grounds as mentioned in Section 6 of the said Act except on the ground mentioned in clause (e) of sub-section (1) of Section 6 of the said Act. Unlike the provision under the Transfer of Property Act, where determination of relationship of landlord and tenant by notice under Section 106 of the Transfer of Property Act is a pre-condition for filing a suit for eviction by the landlord against the tenant, Section 6(4) does not contemplate service of notice for determination of relationship of landlord and tenant under the West Bengal Premises Tenancy Act. 17. Such being the position under the law, we are of the view that relationship between the landlord and tenant continues under the Premises Tenancy Act until a decree of eviction is passed against the tenant by any court of competent jurisdiction. Thus, we hold that payment and acceptance of rent by the parties during the pendency of the suit does not alter the situation. The defendant was a tenant under the plaintiff before the suit was filed and that tenancy continued during the pendency of the suit; however, the said tenancy ceased to exist after the decree of eviction was passed against him by the court of competent jurisdiction. Hence, we hold that the learned Trial Judge was not justified by holding that a new tenancy was created by the parties by way of payment and acceptance of rent between them. We, thus, hold that the learned first Appellate Court was right in holding that the findings made by the learned Trial Judge in this regard are illegal and not justified. 18. Let us now consider the other part of the submission of Mr. Ghosh Dostidar, learned advocate appearing for the appellant who contends that the judgments and decrees of both the courts below cannot be sustained in law as none of the courts below considered the reasonableness of requirement of the plaintiff while dealing with the suit and/or the appeal. 19. Let us now consider this part of the submission of the learned advocate of the appellant in the facts of the present case. 20. 19. Let us now consider this part of the submission of the learned advocate of the appellant in the facts of the present case. 20. On perusal of the judgments and decrees of both the courts below, we find that none of the courts below meticulously considered the exact requirement of the plaintiff and the availability of the present accommodation to the plaintiff. Learned Trial Judge simply said that the elder son of the plaintiff has already attained the age of marriage, but his marriage could not be arranged due to lack of accommodation. Learned first Appellate Court very casually affirmed such findings of the learned Trial Judge. As such, we have considered the pleadings of the parties as well as their evidence. 21. We find that family of the plaintiff consists of the plaintiff himself, his three sons, two unmarried daughters, widow and two children of the second son of the plaintiff who predeceased the plaintiff and one married daughter. Thus, altogether we find that there are ten members in the plaintiff’s family. The plaintiff at the time of filing the suit was staying in an accommodation comprising of two rooms in C.I.T. flat on rental basis. In course of evidence, the plaintiff admitted that the plaintiff has purchased the said flat and thus he became the owner of the said flat. We also find from the record that during the pendency of the suit, the plaintiff has got four rooms vacated in the suit premises. He has also constructed one tile room therein. Thus, altogether five rooms are in possession of the plaintiff in the suit premises. 22. We have already mentioned above that there are ten members in the plaintiff’s family. In our view, one room is necessary for the plaintiff. He has three sons. They require at least three rooms. Two unmarried daughters also require two rooms. The widow of the second son of the plaintiff and her two children also require one room for their residence. Even one room for such a big family is required as guest room where the married daughter and/or other relatives of the plaintiff’s family may be accommodated during the period of their occasional stay. In our view, such a big family also requires one dining room apart from kitchen, bath and privy. Thus, altogether the plaintiff requires nine rooms to accommodate his family. 23. In our view, such a big family also requires one dining room apart from kitchen, bath and privy. Thus, altogether the plaintiff requires nine rooms to accommodate his family. 23. The plaintiff has two rooms in his occupation in the C.I.T. flat. That two rooms flat is quiet insufficient to accommodate all the family members in the said flat. Splitting up of the family is not desirable. As such, if the plaintiff has to stay together, they will have to shift to the suit premises. We have already mentioned above that only five rooms are available to the plaintiff in the suit premises. The tenancy of the defendant/appellant comprises of only one room. The accommodation which is, thus, available to the plaintiff in the suit premises, in our considered view, is not sufficient to accommodate all the family members of the plaintiff therein. We, thus, hold that the plaintiff reasonably requires the suit premises for his own use and occupation and for the occupation of the members of his family and the plaintiff has no other reasonable suitable alternative accommodation elsewhere. 24. In the facts and circumstances as stated above, we do not find involvement of any substantial question of law in this appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure. We, thus, decline to admit this appeal. The appeal, thus, stands dismissed. Re: CAN No. 5987 of 2016 (Stay) 25. Since we have not admitted the appeal under the provision of Order XLI Rule 11 of the Code of Civil Procedure, no further order need be passed on the interim application for stay. The said application being CAN No. 5987 of 2016 is thus deemed to be disposed of.