Calcutta High Court
Bikash Ch. Ghosh vs Dilip Kr. Mukherjee on 13 June, 1997
Equivalent citations: AIR1997CAL363, AIR 1997 CALCUTTA 363, (1997) 101 CAL WN 305, (1998) 1 RENCJ 390, (1998) 1 ICC 461, (1998) 1 RENCR 232
JUDGMENT
1. This being a Second Appeal by the defendant-tenant is directed against the judgment and decree dated February 14, 1994 passed by the Assistant District Judge, 24 Parganas (South) in Title Appeal No. 73 of 1997 reversing the judgment and decree dated June 23, 1993 passed by the Munsiff, Second Court at Sealdah in Title Suit No. 132 of 1990. The appellant-tenant feels aggrieved of the judgment and decree of the First Appellate Court, whereby the plaintiff/owner-landlord has been granted of the decree of eviction on the ground of reasonable requirement of the tenanted premises for his own occupation.
2. The suit premises consisted of two self-containt flats, one on the ground floor and the other on the first floor. The defendant-appellant was a tenant in the flat situated on the ground floor. The flat on the first floor was already in-occupation of the respondent-landlord. It may be added here that the respondent also was a tenant in respect of he flat on the first floor, but he subsequently purchased the entire premises and he became the owner thereof. The appellant, thereupon, became a tenant under the respondent/owner-landlord at a rental of Rs. 140/- per month payable according to English Calendar month payable according to English Calendar month. After a lapse of the statutory limit of 3 years of the purchase, the respondent-landlord instituted the aforesaid suit for ejectment on the ground of default in payment of rent from the month of July, 1989 and also on the ground of reasonable requirement of the tenanted portion of the premises. The present accommodation of the respondent was asserted to be not sufficient and it was, therefore, contended by the respondent-landlord that he required the tenanted accommodation for his own occupation over and above the accommodation already available to him and also that he had no other suitable accommodation elsewhere. He further asserted that he required one bed room for himself and his wife, one bed room for his daughter, one room for drawing cum guest and also study purpose and one room for dining cum store besides kitchen and privy.
3. The defendant-appellant challenged both the aforesaid grounds of eviction and contended inter alia that he had regularly deposited the rent to the Rent Controller after the tender of the rent by money-order was refused by the respondent. According to the defendant-appellant, one room on the terrace of the first floor as also a covered verandah available there could be converted by the plaintiff-landlord for his use as drawing cum study cum guest room.
4. The controversy raised in the Second Appeal before this Court was limited with respect to the reasonable requirement of he tenanted portion of the suit premises on which ground alone the decree of eviction has been passed by the First Appellate Court. The other ground for eviction being default in payment of rent has already been finally determined in favour of the appellant-defendant.
5. Since the controversy centres around only with regard to the reasonable requirement of the owner-landlord, it would be apposite to advert to the legal proposition with regard to the scope of scrutiny at the stage of the second appeal. It has been set at rest that the point if a landlord required or not is a question of law vulnerable in second appeal, that is to say, that in the second appeal, the scope of scrutiny was limited to the extent if the requirement of the landlord was qualitatively reasonable. The quantity of the extent of requirement has been deemed to be a question of fact not vulnerable in second appeal. This view of the legal proposition finds credence from the decision of a Division Bench of this Court in the case of A.K. Mukherjee v. Prodip Ranjan Sarabadhikary .
6. in the instant case, as to the qualitative requirement of the respondent-landlord, a question was raised before both the Courts below as to whether the respondent-landlord actually required some more accommodation for the purpose to be served as drawing room, guest room dining room and store room as also the room for maid servant of the landlord. Whereas, the trial Court dispelled the requirement for guest room it did approve that the landlord required some space for drawing cum dining room and some space for accommodation for his maid servant. The First Appellate Court, however, approved the need for some accommodation for the guest as well. Therefore, if at all any substantial question of law could be raised in the instant second appeal, it was with regard to the qualitative requirement of the landlord as determined by the Courts below so far the quantity or the extent of requirement from accommodation on different counts was concerned that has to be deemed as a question of fact and, accordingly that aspect of the matter would be deemed to have been finally decided by finding of fact on the point by the First Appellate Court, of course, subject to only exception if that finding was perverse or based on no material.
7. In order to appreciate the requirement of the respondent-landlord, one has to, most certainly, take notice also of the family status of the landlord. In this context, there was an un-controverted fact that the plaintiff-landlord was a Transport Superintendent of Indian Air lines and his wife also held a responsible post as an Officer in Bankok India Limited. The wife of the landlord had her origin from Australia. Though the plaintiff's wife had now turned to be an Indian citizen, the family was supposed to have mixed culture of India and abroad.
8. In the above backdrop of the family status of the respondent-landlord, the trial Court, however, dispelled the requirement of a guest room or even the need of any space for guest on the ground that the need for guest room was not only unspecific but also doubtful. The view taken by the trial Court as such, has been turned down by the First Appellate Court. In my considered opinion, I feel most inclined to accept the view taken by the First Appellate Court for the obvious reason that the bare fact of the family status of the landlord as noticed above and, more particularly, regard being had to the Indian culture and the probability of his relations from abroad visiting his place, there could be possibly no view excepting that the respondent-landlord did require some space to accommodate the guest as and when they visit his place in India. It may be added that the First Appellate Court appears to have taken also a reasonable view in this regard that the requirement for accommodation of guest could be adjusted in the drawing room itself and, accordingly, he determine the requirement of one room as drawing cum guest room.
9. In the present accommodation available to the respondent-landlord in the first floor of the suit premises there was no room set apart for drawing cum guest room. In this view of the matter, one out of the two rooms available in the tenanted accommodation has been determined to be the reasonable requirement of the respondent-landlord for drawing cum guest room. It may be added here that the trial Court did accept the landlord's requirement for drawing room but for that purpose, he suggested that the space already available to the landlord in 'L' shape could be used for drawing cum dining room. In the opinion of the First Appellate Court, it, however, appeared that the respondent-landlord required one room for drawing-cum-guest room and the other room for dining-cum-store purpose. Rightly it appears to have been accepted as his reasonable requirement. The view taken by the First Appellate Court does not appear to be perverse and it has bene definitely based on materials available on the record. In any view of the matter, I find no reason to disagree with the stand taken by the First Appellate Court.
10. Needless was to discuss that there were only two rooms bisides kitchen and privy presently available to the landlord in the first floor of the suit premises; and out of those two rooms, one was definitely required as bed room for the plaintiff and his wife and the other as bed room for their daughter. True, it, was that besides these accommodation available in the first floor there was one chilla kotha of 'L' shaped and another covered accommodation on the terrace being of the size 9 ft. x 7 ft. but definitely those space could hardly be taken as sufficient to fulfil the requirement of the plaintiff of one room being drawing-cum-guest room which could be also used a study purpose and yet another room for dining-cum-store purpose. The two bed rooms available in the tenanted accommodation were thus required to fulfil the need of two more separate rooms of the plaintiff.
11. Both the Courts below appears to be of firm view that some space was required to accommodate the maid servant of the plaintiff, it could be very reasonably thought of that the chilla kotha or the covered space available at the first floor of the suit premises could be converted to provide separate and exclusive accommodation for the maid servant but such adjustment can be have had only after those are set apart after getting accommodation in the ground floor.
12. Learned counsel for the appellant, however put much emphasis so as to accept the view taken by the trial Court in the matter of reasonable requirement. I find it difficult to agree with this submission for the simple reason that the trial Court proceeded on the view that since the plaintiff had lived in his present accommodation for about 20 to 25 years discharging his social obligation and meeting his requirement, and there was no change in his status and, therefore his requirement for guest room was not justified. Probably, in the view of the trial Court reasonable requirement was some sort of static feature this was obviously an erroneous view of the matter. A reasonable requirement is bound to differ from time to time with the needs of the growing child and the advancement in the living of the family.
13. Furthermore, the Trial Court in its concluding paragraph of the judgment appears to have viewed the entire controversy in the light that, in determining the reasonable requirement for occupation, a court of law must have regard to the comparative advantage and disadvantage of the landlord and the tenant. This was, of course, a concept approved in S. 10 of the Old Act, that is, the West Bengal Premises Rent Control Act, 1950. The old law as such, has already been substituted by S. 13(1)(ff) of the West Bengal Premises Tenancy Act, 1956, which does not prescribed any consideration of comparative advantages and disadvantages of the landlord and the tenant. This was obviously for the reason that a tenancy right cannot be equated with the right of a owner-landlord. The Tenancy Act did provide protection to a tenant against eviction excepting for the statutory grounds as enumerated in sub-sec. (1) of S. 13 of the West Bengal Premises Tenancy Act, 1956 but there was definitely no provision made to have a comparative view as to the requirement of the landlord on one side and that of the tenant on the other side. If a landlord succeeds in establishing the case of reasonable requirement as required under S. 13(1)(ff) of the Act, the tenant's requirement, howsoever good will not supersede the right of ejectment of the landlord available under the Law. The concept of live and let live as propounded in the judgment of Trial Court was nothing but a surmise having no legal base to stand.
14. Before I come to a conclusion, I would like to make it clear that I have accepted the findings of and the stand taken by the First Appellate Court for the obvious reason that the view taken by the said Court was based on material and there was absolutely no element of perversity therein. In a situation like this, even if another view was possible on re-appreciation of the evidence this court would certainly refrain from doing as such in a second appeal. This approach of mine is based on the authoritative decision of the Supreme Court in Navaneethammal v. Arjuna Chetty, as also a Division Bench of this Court in Calcutta Firm Library & Associates v. Dr. Shila Sen, reported in 1997 CWN 925.
15. I, therefore, find on merit in the instant appeal, and, accordingly, the same is dismissed. There shall be however, no order as to costs., Stay of operation of the judgment prayed for is refused.
16. Appeal dismissed.