Calcutta High Court (Appellete Side)
Sri Madan Panja & Anr vs Smt Protiva Mondal on 8 August, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
08.08.2016. S.A.T. 262 of 2016
dc. with
CAN 6201 of 2016
Sri Madan Panja & Anr.
versus
Smt Protiva Mondal
Mr. Aniruddha Chatterjee,
Mr. Anjan Biswas,
Mr. Tridib Chakrabarty
... For the Defendants/Appellants.
Mr. Partha Pratim Roy,
Mr. Nemai Chandra Betal ... For the Plaintiff/Respondent.
Leave is granted to the learned advocate-on-record of the appellants to rectify the defects in the memorandum of appeal in terms of the report of the Stamp Reporter.
Let it be recorded that deficit court fee of Rs.362/- has been put in by the appellants on 15th July, 2016 vide filing No. A-11939.
This second appeal is directed against the judgement and decree dated 19th April, 2016 passed by the learned Civil Judge (Senior Division), 2nd Court at Alipore in Title Appeal No. 135 of 2015 reversing the judgement and decree dated 29th June, 2015 passed by the learned Civil Judge (Junior Division), 5th Court at Alipore in Title Suit No. 1934 of 2010 at the instance of the defendants/appellants.
Let us now consider as to whether any substantial question of law is involved in this second appeal for which the 2 appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure or not.
After hearing Mr. Chatterjee, learned advocate appearing for the appellants, we find involvement of substantial question of law in this appeal. Accordingly, we admit this appeal on the following substantial question of law :-
Whether the learned first Appellate Court was justified in reversing the judgement and decree of the learned Trial Judge and thereby passed a decree for eviction against the defendants/appellants without giving sufficient opportunity to the defendants/appellant to establish their defence against eviction as the court found that in view of the change of circumstances, the suit though filed under the Transfer of Property Act is required to be considered in the context of the West Bengal Premises Tenancy Act, 1997 ?
Immediately after the appeal was admitted, we were requested by the learned counsel appearing for the parties to dispose of the appeal itself on merit. Since the fate of this appeal depends upon our decision only on a point of law, we feel that the appeal can be decided even in the absence of the lower court records. As such, we have decided to dispose of the appeal without calling for the lower court records and on the basis of the materials available before us by dispensing with the requirement of filing paper book in this appeal.3
Let us now consider the merit of the appeal in the facts of the instant case.
An eviction suit was filed by the plaintiff against the defendants under the provision of Transfer of Property Act. On the date of institution of the suit, the suit property was situated in the Panchayat area. West Bengal Premises Tenancy Act had no application in the locality where the suit premises was situated. The landlord served a notice under Section 106 of the Transfer of Property Act by determining the relationship of landlord and tenant between the parties. One month time was granted to the tenants for vacating the suit premises. Since the tenants did not vacate the suit premises on the expiry of the notice period, the landlord/plaintiff filed the suit for eviction against the tenants on the ground of default as well as for reasonable requirement.
The defendants/tenants appeared in the said suit and contested the same by filing written statement. During the pendency of the said suit, the jurisdiction of Kolkata Municipal Corporation was extended over the area where the suit property is situated. Thus, the West Bengal Premises Tenancy Act, 1997 was made applicable to the said area due to extension of the municipal limits over the said area during the pendency of the suit.
Though the plaintiff adduced evidence in the said suit, but the defendants did not adduce any independent evidence in the said suit.4
The learned Trial Judge after considering the pleadings of the parties and their evidence held that West Bengal Premises Tenancy Act, 1997 is now applicable to the locality due to extension of municipal limits over the area where the suit property is situated. By relying upon a decision of this Court in the case of Niranjan Modak Vs. Lakshmi Narayan Guin reported in AIR 1976 Cal. 322, learned Trial Judge held that West Bengal Premises Tenancy Act, 1997 is applicable in the instant case and the rights of the parties are now required to be decided in the light of the West Bengal Premises Tenancy Act. Accordingly, the learned Trial Judge dismissed the said suit.
Being aggrieved by and dissatisfied with the said judgement and decree of the learned Trial Judge, the plaintiff/landlord filed an appeal being Title Appeal No. 135 of 2015 before the Court of the learned Civil Judge (Senior Division), 2nd Court, Alipore. The learned first Appellate Court also agreed with the findings of the learned Trial Judge regarding application of West Bengal Premises Tenancy Act, 1997 in the locality where the suit premises is situated. The learned first Appellate Court, however, found that the eviction notice which was served upon the defendants/tenants was in conformity with the provision of West Bengal Premises Tenancy Act, 1997 and since the learned first Appellate Court found that the service of eviction notice upon the defendants was good, valid and sufficient in terms of the provision contained in Section 6(4) of the said Act, the eviction suit even under the West Bengal Premises Tenancy Act is maintainable.5
The learned first Appellate Court after considering the evidence led by the plaintiff with regard to her reasonable requirement of the suit premises ultimately held that the plaintiff has succeeded in proving her reasonable requirement of the suit premises and as such, the learned first Appellate Court passed a decree for eviction in the said appeal. The defendants were directed to vacate the suit premises and deliver possession in favour of the plaintiff within three months from the date of the order, failing which the plaintiff was given liberty to put the decree into execution. The legality and/or propriety of the said judgement and decree of the learned first Appellate Court is under challenge in this appeal before us.
Mr. Chatterjee, learned advocate appearing for the defendants/appellants submits that since the suit was filed under the Transfer of Property Act and the parties also proceeded with an impression that the suit is under the Transfer of Property Act, neither party gave sufficient evidence with regard to the ground of eviction made out by the plaintiff in the said suit inasmuch as in order to get a decree for eviction under the Transfer of Property Act, the plaintiff is not required to prove any ground of eviction unlike under West Bengal Premises Tenancy Act which imposes an embargo upon the court's jurisdiction to pass a decree for eviction against the tenant without recording its satisfaction about existence of any of the grounds as incorporated under the said Act.
Mr. Chatterjee further submits that since the suit was under the Transfer of Property Act, his clients also did not 6 elaborately deal with the ground of eviction as made out by the plaintiff in the plaint, in their written statement.
We find substance in such contention of Mr. Chatterjee. Since the suit was filed under the Transfer of Property Act and the parties also participated in the trial of the suit as well as in the appeal by accepting the suit as one under the Transfer of Property Act, there was every possibility of the parties being misled about the requirement of proof of the ground of eviction made out by the plaintiff in such suit. We find that the plaintiff also did not adduce sufficient evidence with regard to her ground of eviction made out in the plaint. The defendants also did not cross-examine the plaintiff's witness under an impression that the suit is under the Transfer of Property Act where decree for eviction can be passed only on proof of service of a valid, legal and sufficient notice under Section 106 of the Transfer of Property Act and nothing elase.
We, thus, feel that for giving a fair chance to the parties either to prove or to disprove the claims of each other, the appeal should be remanded back to the learned first Appellate Court for fresh consideration of the issue regarding reasonable requirement of the plaintiff in the light of the directions given below.
Leave is granted to the plaintiff to amend the plaint for incorporating further materials on record regarding her reasonable requirement of the suit premises in the light of the provision of West Bengal Premises Tenancy Act, 1997. Two weeks' time is granted to the plaintiff/respondent to file such application for amendment of the plaint before the learned first 7 Appellate Court. In case such application is filed, the learned first Appellate Court will allow the said application and will permit the defendants/appellants to file additional written statement for dealing with the ground of eviction i.e. reasonable requirement alone.
In the event, the plaintiff/respondent does not apply for such amendment within the period as fixed above, learned first Appellate Court will proceed with the appeal on the basis of the existing pleadings of the plaintiff. However, two weeks' time will be granted to the defendants for filing the additional written statement for the purpose as aforesaid.
Since Mr. Roy, learned advocate appearing for the plaintiff/respondent submitted that his client has waived her right to apply for striking out the defence of the defendants under Section 7(3) of the said Act and has also submitted that his client will not pray for any decree of eviction on the ground of default in payment of rent, we make it clear that neither the defendants are required to deal with the ground of default in payment of rent in the additional written statement nor any of the parties is required to lead any further evidence on the ground of default in payment of rent. Such written statement should be filed within two weeks from the date of service of copy of the amended plaint upon the defendants.
It is also made clear that in the event any of the parties applies for local inspection of the suit premises and/or any other premises available to the plaintiff which may satisfy the plaintiff's requirement for which the eviction against the defendants from the suit premises is sought for, such 8 application will be considered by the learned first Appellate Court in accordance with law.
Time limit which is fixed either for filing the amended pleadings by the parties or for disposal of the appeal should be regarded as peremptorily fixed by this Court.
Learned first Appellate Court is requested to carry out the above directions by the end of this year.
We, thus, retain this appeal before this Court and pass this order of remand under Order 41 Rule 25 of the Civil Procedure Code with a direction upon the learned first Appellate Court to record its findings on the ground of reasonable requirement of the plaintiff with regard to the suit property and to send its findings along with the records including further pleadings of the parties to this Court for further consideration of this appeal by the appropriate Bench of this Court.
Let a copy of this order be transmitted to the court below immediately.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(JYOTIRMAY BHATTACHARYA, J.) ( ISHAN CHANDRA DAS, J. )