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2017 DIGILAW 44 (CAL)

Arun Kumar Bhattacharjee v. Samar Kumar Malakar

2017-01-09

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARY

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JUDGMENT : Jyotirmay Bhattacharya, J. 1. This Second Appeal is directed against the judgment and decree dated 25th March, 2013 passed by the learned Judge, 8th Bench, City Civil Court at Calcutta, in Title Appeal No. 72 of 2010 affirming the judgment and decree dated 13th August, 2010 passed by the learned Judge, 6th Bench, Presidency Small Causes Court at Calcutta, in Ejectment Suit No. 524 of 2015 at the instance of the defendant/appellant. 2. 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 for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure. 3. Here is the case where we find that the plaintiffs/ respondents have filed a suit for eviction against the defendant/appellant on various grounds available under the West Bengal Premises Tenancy Act, 1997. 4. The defendant appeared in the said suit and contested the same by filing written statement. 5. The parties led evidence in support of their respective claims. Ultimately the suit was decreed on contest by the learned Trial Court on the ground of reasonable requirement of the plaintiffs/respondents. 6. The said judgment and decree of the learned Trial Court was challenged in appeal by the defendant/appellant. The learned First Appellate Court dismissed the said appeal by affirming the findings of the learned Trial Court. Thus, the eviction decree which was passed by the learned Trial Judge was affirmed in appeal by the learned First Appellate Court. 7. The instant Second Appeal is directed against the said judgment and decree of the learned First Appellate Court. 8. Let us now consider as to whether the learned courts below were justified in passing the decree for eviction against the tenant on the ground of reasonable requirement of the plaintiffs. 9. The plaintiffs are admittedly the owners of a three storied building in the city of Kolkata. There are number of rooms in the said premises. The plaintiffs are in possession of four rooms in the ground floor and five rooms in the second floor. The other rooms available in the said premises are let out to various tenants. The defendant/respondent is one of such tenants who is in possession of two tenancies consisting of one room each on the first floor of the said premises. The plaintiffs are business men. The other rooms available in the said premises are let out to various tenants. The defendant/respondent is one of such tenants who is in possession of two tenancies consisting of one room each on the first floor of the said premises. The plaintiffs are business men. One of the rooms, out of four rooms available in the ground floor of the said premises, is used as a shop room wherefrom the plaintiffs carry on their business. The other three rooms on the ground floor are used as godown, i.e. commercial purpose. There is no other accommodation available to the plaintiffs in the suit premises. Admittedly there are eight members in the plaintiffs' family. Out of the five rooms available to the plaintiffs on the second floor of the said premises, three rooms are used as bed-rooms and one room is used as kitchen and the remaining room is used as thakur-ghar. 10. In our view, such a big family cannot be accommodated in these three rooms' accommodation. There is neither any drawing room, nor any dining room for such a family in the said premises. Apart from the accommodation available to the plaintiffs in the said premises, the plaintiffs have another house in the same vicinity. The said house is a two storied mud-built house. The roof of which is covered by corrugated tin shed. The said mud-built house is in a damaged condition and is also located in slum area. 11. Both the courts below held that such premises cannot be conveniently used by the plaintiffs. 12. That apart, the splitting of the family members of the plaintiffs by allowing some of them to stay in the existing accommodation and some of them to stay in the other house is not at all desirable. 13. As such, we are of the view that both the courts below did not commit any illegality in passing a decree for eviction in such a suit and/or maintaining the said decree in appeal by the learned First Appellate Court. 14. We do not find involvement of any substantial question of law in this appeal. As such, we decline to admit this appeal for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure. 15. After we dismissed the appeal in the manner as aforesaid, Mr. 14. We do not find involvement of any substantial question of law in this appeal. As such, we decline to admit this appeal for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure. 15. After we dismissed the appeal in the manner as aforesaid, Mr. Raut, learned advocate, appearing for the appellant submits that his client will peacefully vacate the suit premises and/or give up peaceful and vacant possession thereof to the plaintiffs, provided some time is given to the defendant. 16. We are also informed by Mr. Raut that his client's wife has now been hospitalised for her treatment. 17. Considering such submission of Mr. Raut, we keep the execution of the eviction decree in abeyance till 30th April, 2017 subject to compliance of the following conditions: (a) The defendant/appellant will have to pay all arrear rent, if there be any, to the plaintiffs/respondents within 31st of January, 2017. (b) The defendant/appellant will have to pay the occupational charges of the suit premises @ Rs.1,000/- (Rupees One Thousand) only per month to the plaintiffs/respondents. First of such payment for the month of January, 2017 will be paid by the defendant/appellant within 7th of February, 2017 and the occupational charges of the subsequent months till March, 2017 will be paid by 7th each following month. Occupational charges for the month of April, 2017 will also have to be paid within 15th of April, 2017. (c) The defendant/appellant will have to submit an undertaking before the learned executing court within a week from date by mentioning therein that he will vacate the suit premises and will deliver vacant and peaceful possession thereof to the plaintiffs and/or their authorised representative on or before 1st May, 2017 and during the period of his stay, he will neither sublet, under-let and/or create any third party interest, nor will cause any damage to the said tenancy. 18. 18. In the event the conditions as mentioned above are strictly complied with by the defendant/appellant, the execution of the eviction decree will remain stayed till 1st May, 2017 with this rider that in default of compliance of any of the conditions as mentioned above, the interim stay as granted above will automatically be vacated and in that event the learned executing court will pass necessary order for recovering the possession of the suit premises from the defendant by police help without entertaining any further application from the side of the defendant/appellant. 19. Both the appeal and the application are thus disposed of.