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2019 DIGILAW 437 (CAL)

Md. Nasim v. Ashfaque Ahmed Khan

2019-04-02

SANJIB BANERJEE, SUVRA GHOSH

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JUDGMENT : 1. The primary question raised is as to what should be the extent of interference in appeal in respect of a finding of reasonable requirement, particularly, when the finding is sought to be upset on the ground of fresh letting out after the institution of the suit when there was no evidence in such regard before the trial court. 2. The plaintiffs challenge the judgment and decree of reversal in an appeal from a decree for eviction on the ground of reasonable requirement. 3. The suit was instituted in the year 1997. It is an admitted position that after the suit was instituted the plaintiffs obtained possession of some other rooms at the building which considerably eased the circumstances in which a family of the plaintiffs was residing at the suit premises. The trial court found that a case of reasonable requirement had been made out in view of the large number of members in the plaintiffs’ family. The plaintiffs were in occupation of the first floor of the building and of another portion of the ground floor. Though a commissioner’s report prepared at the interlocutory stage of the suit showed that the plaintiffs may have been in possession of one or more rooms than the plaintiffs had indicated in the plaint, there was no doubt as to the number of members in the plaintiffs’ family. 4. The primary ground urged on behalf of the defendants was that the additional rooms obtained by the plaintiffs after the institution of the suit took care of the plaintiffs’ need. The further ground urged was that despite the plaintiffs’ claim for eviction on the ground of reasonable requirement, the plaintiffs had inducted new tenants in respect of other portions of the relevant building after the institution of the suit. 5. The evidence before the trial court was that the plaintiffs obtained vacant possession of several other rooms in the same building after institution of the suit, that these rooms had been occupied by the plaintiffs and the plaintiffs were in need of more space. The trial court noticed the number of members in the plaintiffs’ family, found that the ground of reasonable requirement was justified and allowed the claim. There was no evidence before the trial court of the plaintiffs having inducted any new tenant into the relevant building after the institution of the suit. 6. The trial court noticed the number of members in the plaintiffs’ family, found that the ground of reasonable requirement was justified and allowed the claim. There was no evidence before the trial court of the plaintiffs having inducted any new tenant into the relevant building after the institution of the suit. 6. Indeed, the appellants refer to the evidence of the third defendant, Ashfaque Ahmed Khan. In course of his cross-examination before the trial court on July 29, 2016, the third defendant had said that the third defendant “cannot produce any document to show that the plaintiffs had inducted any new tenant in the suit property”. Such statement was made despite copies of rent receipts pertaining to the tenants at the said building having earlier been tendered in evidence by the plaintiffs, including Exhibit 12, which showed that there was a tenancy in respect of one room in favour of one Md. Akbar. 7. Neither the written statement of the defendants nor the oral evidence of any witness on behalf of the defendants indicated or made out a case that Md. Akbar had been inducted as a new tenant at the said building at any time subsequent to the institution of the suit. The trial court did not refer to the perceived induction of Md. Akbar as a new tenant after the institution of the suit. 8. In course of the appeal, the lower appellate court noticed how the ground of reasonable requirement was dealt with by the trial court. For the most part, the lower appellate court appears to have narrated the number of members in the plaintiffs’ family, the number of rooms available to such persons, the number of rooms occupied by the present tenants before the lower appellate court came to a finding without any evidence in support thereof, that one Md. Akbar (mistakenly referred as Md. Aktar) had been inducted as a new tenant after the institution of the suit. 9. When evidence is recorded in a suit and the rival cases are sought to be substantiated by evidence, it is the appreciation of the evidence which leads to a fair assessment of the rival stands and on which the final decision depends in the context of the applicable law. 9. When evidence is recorded in a suit and the rival cases are sought to be substantiated by evidence, it is the appreciation of the evidence which leads to a fair assessment of the rival stands and on which the final decision depends in the context of the applicable law. In such a scenario, it is unbecoming of an appellate court to interfere with the same on the basis of its perception when such a case may not have been made out either on pleadings or in course of the evidence by the parties. 10. It appears that in the plaintiffs’ bid to demonstrate how many rooms at the suit premises remained occupied by tenants, the plaintiffs had relied on rent receipts pertaining to such tenants. One of such rent receipts – Exhibit 12 – pertained to a tenant by the name of Md. Akbar. Despite such evidence being on record and the third defendant giving evidence subsequent to Exhibit 12 coming on record, the third defendant did not indicate in the course of his evidence that such Md. Akbar had been inducted as a new tenant by the plaintiffs. 11. The appellants accept that an argument was made in course of the first appeal that some of the rent receipts would reveal that new tenants had been inducted, but there was no evidence in support of such argument. The appellants claim that Md. Akbar’s father was a tenant at the suit premises and the rent receipts were issued in the name of Md. Akbar upon the demise of his father. 12. There are two aspects to the judgment and decree of the trial court dated January 15, 2019 which need to be addressed. First, when the reasonable requirement of the plaintiffs was such as had been recorded by the trial court and when the number of members in the plaintiffs’ family was more than twenty, even if a solitary room had been let out to a person after the institution of the suit, the said ground of reasonable requirement could not have failed merely on such count. It is possible that a small room on the ground floor opens up but such room may not be suitable for residential accommodation and, as such, the room is again let out notwithstanding the suit for eviction on the ground of reasonable requirement remaining pending. It is possible that a small room on the ground floor opens up but such room may not be suitable for residential accommodation and, as such, the room is again let out notwithstanding the suit for eviction on the ground of reasonable requirement remaining pending. Such letting out of a room unsuitable for residential accommodation may not have any impact on the suit for reasonable requirement. 13. The second aspect is that the lower appellate court merely presumed that Md. Akbar was a new tenant when there was no assertion in support thereof made by the defendants, whether in their written statement or in course of their oral evidence; and, more importantly, no evidence at all in such regard. 14. For the reasons aforesaid, the view taken by the lower appellate court cannot be accepted and the judgment and decree dated January 15, 2019 is set aside and the judgment and decree of the trial court dated August 29, 2017 is restored. SAT 82 of 2019 is disposed of. It is recorded that the deficit court fees have been made good. There will be no order as to costs.