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2017 DIGILAW 741 (CAL)

Taramoni @ Taramani Gupta v. Sakti Dhara Saha

2017-09-04

JYOTIRMAY BHATTACHARYA, SHIVAKANT PRASAD

body2017
JUDGMENT : JYOTIRMAY BHATTACHARYA, J. 1. This second appeal is directed against the judgment and decree dated 30th August, 2016 passed by the Learned Additional District Judge, 1st Court at Barasat, North 24-Parganas in Title Appeal No. 16 of 2014 affirming the judgment and decree dated 29th January, 2014 passed by the Learned Civil Judge, Junior Division, 3rd Court at Sealdah in Ejectment Suit No. 09 of 2006. 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 under the provision of Order 41, 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 on the ground of change of user of the suit premises by the tenant and also on the ground of reasonable requirement. 4. The defendant contested the said suit by filing written statement denying allegations made out by the plaintiff in the plaint. The parties led evidence in support of their respective claims in the said suit. 5. The learned Trial Judge after considering the pleadings of the parties and their evidence held that the plaintiff is entitled to get a decree for eviction both on the ground of wrongful change of user and also on the ground of reasonable requirement of the plaintiff. 6. Being aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Judge, the defendant/appellant preferred an appeal before the learned First Appellate Court. Though the learned First Appellate Court did not approve the findings of the learned Trial Judge on the ground of wrongful change of user of the suit premises by the tenant but approved the findings of the learned Trial Judge with regard to the reasonable requirement of the plaintiff. 7. Thus, the learned First Appellate Court maintained the decree of eviction passed by the learned Trial Judge. 8. The legality and/or propriety of the said judgment and decree passed by the learned Trial Judge is under challenge in this second appeal at the instance of the defendant/appellant. 9. Let us now consider as to how far the learned First Appellate Court was justified in maintaining the decree of the learned Trial Judge on the ground of reasonable requirement of the plaintiff. 10. 9. Let us now consider as to how far the learned First Appellate Court was justified in maintaining the decree of the learned Trial Judge on the ground of reasonable requirement of the plaintiff. 10. Admittedly, the suit premises is a three storied building at Salt Lake. The first floor and the second floor of the said building were sanctioned by the municipal authority for residential purpose. Those two floors are being used for residential purpose. Two rooms on the ground floor of the said building were sanctioned for commercial use in the sanctioned plan. One of such rooms is used by the plaintiff's son for carrying on his business. The other room was let out to the defendant/tenant who is carrying on business in the suit premises by selling of pan, bidi, cigarette etc. The plaintiff is a known sports woman. She was the first woman representing volleyball referee in India having N.I.C. Coaching certificate. She received the State Sports Award. She also conducted international women's championship at Jakartha. She also participated in different national and international sports and games. She attended the sports medicine course, Yoga and Pranayam. She retired from service on superannuation. After her retirement, she is willing to start a multi gym and also started a business in the suit premises for fitness consultancy. The suit room is situated on the road side. 11. Considering the facts and circumstances as stated above, both the courts below came to the concurrent findings of fact that the suit premises is reasonably required by the plaintiff for carrying on her business therefrom. There is no other reasonably, suitable alternative accommodation from where she can carry on her business. 12. Mr. Mukherjee, learned advocate appearing for the appellant however, submits that the other room which is available on the ground floor of the suit premises, is not being used by her son for carrying on business there. According to him, the said shop room is also let out to another tenant. 13. Mr. Mukherjee further submits that sufficient space is available on the first floor of the suit premises wherein the plaintiff can carry on her business conveniently. He thus, invites this Court to interfere with the order impugned. 14. Let us now consider as to how far such submission of Mr. Mukherjee is accepted in the facts of the instant case. 15. Mukherjee further submits that sufficient space is available on the first floor of the suit premises wherein the plaintiff can carry on her business conveniently. He thus, invites this Court to interfere with the order impugned. 14. Let us now consider as to how far such submission of Mr. Mukherjee is accepted in the facts of the instant case. 15. Even assuming the other room is also let out to tenant, still then the said room is not available to the plaintiff for carrying on her business. As such, the prayer for eviction cannot be denied. Availability of an accommodation in the first floor of the suit premises cannot be a justifiable ground for refusing to grant a decree for eviction on the ground of reasonable requirement as the first floor was sanctioned for residential purpose. The portion of the premises which is proved to have been sanctioned by the municipal authority for residential accommodation, cannot be used for any commercial purpose by the plaintiff. 16. As such, even if any accommodation is found to be available to the plaintiff in the first floor of the said premises, we cannot deny the decree for eviction on the ground of reasonable requirement of the ground floor room which is in occupation of the defendant/appellant. That apart, the accommodation in the ground floor is always convenient for running any business. If an accommodation is available on the ground floor of the said premises, the Court cannot deny eviction for evicting a tenant from the ground floor of the suit premises for enabling the plaintiff/landlady to carry on her business therefrom. 17. When under such circumstances, both the courts bellow passed a decree for eviction and/or the said decree for eviction was maintained in appeal by the learned First Appellate Court, this Court sitting in this jurisdiction does not find any justifiable reason to upset such concurrent findings of such fact arrived at by the Court below. 18. We do not find involvement of any substantial question of law in this appeal. 19. Accordingly, we decline to admit this appeal. 20. The appeal is, thus, dismissed. 21. Since the appeal is disposed of in the manner as aforesaid, no further order need be passed on the stay application. 22. The application for stay being CAN 12011 of 2016 is thus, deemed to be disposed of. 23. 19. Accordingly, we decline to admit this appeal. 20. The appeal is, thus, dismissed. 21. Since the appeal is disposed of in the manner as aforesaid, no further order need be passed on the stay application. 22. The application for stay being CAN 12011 of 2016 is thus, deemed to be disposed of. 23. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.