Calcutta High Court (Appellete Side)
Jayanti Mali & Ors vs Jaganath Proshad Singh & Ors on 9 March, 2023
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :- Hon'ble Mr. Justice I. P. Mukerji
Hon'ble Mr. Justice Biswaroop Chowdhury
SAT 39 of 2019
CAN 1 of 2019 (Old CAN 2479 of 2019)
Jayanti Mali & Ors.
Vs.
Jaganath Proshad Singh & Ors.
For the Appellants :- Mr. Gautam Chakraborty, Adv.
Mr. Kartik Kumar Roy, Adv.
For the Respondents :- Mr. Dhiraj Trivedi, Sr. Adv.
Ms. Swapna Jha. Adv.
Judgment On :- 09.03.2023 I. P. MUKERJI, J.:-
This second appeal under Section 100 of the Code of Civil Procedure came up before us for admission. A second appeal can only be admitted by the High Court only if a substantial question of law is involved in the impugned judgment and decree.
To convince us that the intended appeal was worthy of admission, Mr. Gautam Chakraborty learned advocate for the appellant, with great vigour, took us through the facts of the case. He tried to impress upon us that the dealing of the issues involved by both the learned courts below was such that their judgments and decree could be termed as perverse. Furthermore, the application of law by them was so erroneous that a substantial question of law could be said to have arisen from the impugned judgment and decree.
The suit is of 1999. It is between landlord and tenant. The ground of reasonable requirement was added to the plaint by amendment. The main question in the suit and before the first appellate court was whether the landlord reasonably required the premises let out to the tenant for residence or business. If the answer to this question was in the affirmative, the other question whether he had any reasonable and suitable alternative accommodation was to be considered. Now, I turn to the facts of this case in some detail.
One Jagannath Prasad Singh, the plaintiff owned premises No. 10/12, Gobinda Khatick Road, Ps - Tangra, Kolkata - 700046. I will hereinafter refer to it as "the premises". The original defendant was a monthly tenant under him. It was in relation to a portion of the premises comprising of one room with a tile shed having an area of 80 sq ft. I will refer to it as "the suit premises". In 1999 the present suit was instituted by the plaintiff [Title suit No.168 of 1999 in the court of learned Civil Judge, (Junior Division) 2nd Court at Sealdah] after the tenancy was determined under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 for eviction of the original defendant on various grounds. Subsequently, the plaint was amended to include the ground of reasonable requirement of the landlord.
It was averred in the plaint that in need of accommodation the plaintiff lived in a rented accommodation at premises 52, Creek Row, Kolkata - 700046 and his sons separately in a rented accommodation at premises No.5 Falgun Das lane, P.S- Muchipara, Kolkata - 700012. It was alleged by him that his family consisted of nine members which comprised of his wife, sons, two daughters-in-law and himself. He needed at least eight rooms for residential purpose and two rooms for his office. He was in possession of only four rooms in the premises. In the premises there were six rooms, four rooms were in the possession of the plaintiff, one in the possession of Tulsi Shaw and the sixth room let out to the original defendant.
The learned trial court by a judgment and decree dated 29th March, 2016 decreed the suit holding that indeed the plaintiff reasonably required the suit premises for his residence.
2 By then the original defendant had died and his heirs, the appellants were substituted as defendants.
They preferred a first appeal before the Additional District and Sessions Judge, Fast Track Court - II, Sealdah, South 24 Paraganas. The learned Judge of the first appellate court recorded in his judgment and decree dated 7th December, 2018 that at the time of pronouncement thereof the appellants were in possession of five rooms in the premises, having reclaimed the room in the possession of Tulsi Shaw. The requirement of the plaintiff would not be met by those five rooms. They were clearly insufficient. The plaintiff was in need of the suit premises. The sons of the plaintiff were residing outside the premises. The plaintiff was well within his right to claim another room in the suit premises for the purpose of his business. He was entitled to six rooms. The appeal was dismissed.
This appeal turns on one sub-section of the West Bengal Premises Tenancy Act, 1956. It is Section 13(ff) which is set out hereinbelow:
"13. Protection of tenant against eviction. _ 1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant except on one or more of the following grounds, namely:-
(ff) subject to the provision of sub-section (3A), where the premises are reasonably required by the landlord for own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation;"
Before we look into the facts, the law on the subject needs to be appreciated.
3 To claim back a demised premises from the tenant a landlord has to show that it is "reasonably" required for his own occupation. He is also required to prove that he is not in possession of any "reasonably"
"suitable" accommodation. The landlord is the best judge of his requirement as held in Prativa Devi (Smt) vs. T. V. Krishnan reported in (1996) 5 SCC 353, Deep Chandra Judeja Vs. Lajwanti Kathuria (Smt) (Dead) reported in (2008) 8 SCC 497 and Abid-ul-Islam vs. Inder Sain Dua reported in (2022) 6 SCC 30.
In my opinion, a landlord can only declare his requirement, according to the above authorities. A fanciful or absurd requirement of the landlord would not do. The requirement must be adjudged to be reasonable by the court. The standards by which a common man might consider that the premises is required by the landlord for his own occupation is a good test for the court to apply. Now, if the result of the first test is in favour of the landlord, then the second test as provided in the sub-section has to be applied. He has to prove that he is not in possession of any accommodation. If he does possess an accommodation he has to show that it is not suitable for him. His opinion of its suitability would not suffice. Once again, the notion of a common man as to whether the alternative accommodation is suitable for the landlord or not should be the test for adjudging a "reasonably suitable accommodation", in my opinion.
The learned first appellate court (the court) had held that in the absence of denial by the appellants, the assertion of the respondent/plaintiff that his family consisted of nine members stood established. The court went on to hold that his requirement of a study room and a guest room was justified. So, was the requirement of a room each for his wife and himself, their elder son and his wife, and younger son and his wife, together with a kitchen, worship room and another room for the two sons of the elder son. The court found the demand for eight rooms to be 4 reasonable. The requirement of two rooms for business purpose was also held to be reasonable. The premises consisted of six rooms, out of which the respondent/plaintiff was in possession of four rooms, one was the demised premises and the other in the possession of Tulsi Shaw. Hence, he could claim the demised premises as reasonably required. On the question whether the respondent/plaintiff had any alternative suitable accommodation, the appellants alleged that he had alternative residence accommodation in premises no. 52, Creek Row, 46, Loknath Bose Garden Road and Gatakpukur, Kolkata Leather complexand commercial accomodation. The court found that these accommodations or some of them were owned by the sons of the plaintiff and hence, could not be considered as accommodation belonging to him but it also went on to hold that since the sons lived in the above accommodations owned by them, the plaintiff could not claim extra accommodation in the said premises on their account. Those were to be deleted from the area claimed by the plaintiff as reasonably required. The court also found that those alleged alternative accommodations belonging to the sons of the respondent was far from suitable.
Now, Mr. Chakraborty sought to contend that during pendency of the proceedings, one room which was in occupation of Tulsi Shaw had been reclaimed by the plaintiff. Hence, he ceased to have any requirement of the demised premises. The appellants were entitled to produce evidence of this, even at the stage of admission of the second appeal. He also tried to contend that during pendency of this appeal, the plaintiff died and this further reduced the requirement of the substituted respondents. This also, the court was obliged to take into account, even at the second appellate stage in considering the question of reasonable requirement. In Hasmat Rai & Anr. Vs. Raghunath Prasad reported in (1981) 3 SCC 103 the Supreme Court in one part of the judgment opined that the 5 landlord's requirement must be shown to continue to exist even at the appellate stage.
The appellate court was required to "examine, evaluate and adjudicate"
the issue. Requirement "must continue to exist on the date when the proceeding is finally disposed of either in the appeal or in the revision by the relevant authority."
The court said:
"If the tenant is in a position to show that the need or requirement no more exists because of subsequent events, it would be open to him to point out such events and the Court including the appellate court has to examine, evaluate and adjudicate the same. Otherwise the landlord would derive an unfair advantage...................requirement must continue to exist on the date when the proceeding is finally disposed of either in appeal or revision, by the relevant authority."
However, in Gaya Prasad Vs. Pradeep Srivastava reported in (2001) 2 SCC 604 the same court ruled that a bonafide requirement must be shown on the date of the application for eviction. It clarified the previous dictum of the Supreme Court by saying that the change in the requirement factor must be of "such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events." The court ruled:
"We have no doubt that the crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration...................In our opinion, the subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events." 6
Quoting from Hasmat Rai & Anr. Vs. Raghunath Prasad, (1981) 3 SCC 103 the bench observed that if subsequent events showed that the landlord's requirement was wholly satisfied "his action must fail". In Deep Chandra Judeja Vs. Lajwanti Kathuria (Smt) (Dead) reported in (2008) 8 SCC 497 another bench of the Supreme Court ruled that requirement was a question of fact. Concurrent findings of facts by two courts, one of the first instance and one appellate that the premises was reasonably required by the landlord was to be given weight by the court. Once again the court reiterated that the need of the landlord was to be assessed on the date of institution of the proceeding, relying on Gaya Prasad Vs. Pradeep Srivastava reported in (2001) 2 SCC 604. Therefore, the legal principle to be deduced from these decisions is that ordinarily the date for ascertaining the reasonableness of the requirement of the landlord is the date of institution of the suit. There is much logic in this view. Both the parties are required, while getting the suit ready for hearing to exchange pleadings to discover documents and to produce the relevant evidence to prove the case. In a case where the premises is claimed by the landlord on the basis of reasonable requirement, during progress of the suit or the appeal from the decree, the factors for determining the reasonable requirement like the requirement itself, reasonableness of the requirement, the availability of alternative accommodation suitable to the landlord may change from time to time. It would cause the greatest inconvenience to the plaintiff if on every such small change, he had to amend the pleadings, introduce new documents and lead fresh evidence. The same is also true for the defendant. It would cause great hardship to the plaintiff and delay the appeal indefinitely. Therefore, ordinarily the date for determining reasonable requirement and availability of reasonably suitable accommodation should be the date of institution of the suit. In a rare case where the change in requirement or in the availability of suitable 7 accommodation is so great in its impact on the nature of the suit, so as to negate the case of the landlord, the court for the ends of justice will allow additional evidence to be produced.
Even if the plaintiff had reclaimed one room from Tulsi Shaw and had later died, in my opinion, it would not in any significant manner change the reasonable requirement of the demised premises as held by the learned courts below.
The High Court on second appeal will not ordinarily interfere with the findings of fact arrived at up to the first appellate stage. Those findings of fact will be treated as final, especially so when there are concurrent findings by the first court and the first appellate court. Even if the reappraisal of the facts and evidence would result in a different finding, the High Court would not embark on that exercise. (See Pakeerappa Rai vs. Seethamma Hengsu and Ors. reported in (2001) 9 SCC 521. See Prativa Devi (Smt) vs. T. V. Krishnan reported in (1996) 5 SCC 353.) However, if any finding of fact is based on no evidence or in gross disregard of evidence or is so unreasonable, irrational or absurd that no reasonable person could have come to that decision, the decision itself would be termed as perverse, thereby giving rise to a substantial question of law.
On consideration of the reasons given by the court, I am of the opinion that a very proper analysis has been made by both the learned courts below of the evidence before it. Very rightly, they have come to the conclusion that the demised premises is reasonably required by the respondents. There is no iota of perversity in either of the two judgments and decree.
This appeal is deemed to have been admitted by us on the above question of reasonable requirement. The department is directed to 8 register the appeal accordingly. It is also heard out on the above question dispensing with all formalities.
For the reasons given above, we dismiss the appeal. However, taking into account the forceful submissions made by Mr. Gautam Chakraborty for the appellants, we grant the appellants time upto 29th February, 2024 to vacate the premises. Upto 29th February, 2024 the respondents shall not proceed with execution of the impugned decree. If the appellants do not vacate the premises by 29th February, 2024, the respondents shall be free to proceed with execution of the impugned decree as well as take steps against them in the contempt jurisdiction of our court. Their claim for occupation charges or mesne profits during the period prior to vacation of the premises by the appellants is kept open. Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities. Pending application being CAN 1 of 2019 (Old CAN 2479 of 2019) is also disposed of. I agree.
(BISWAROOP CHOWDHURY, J.) (I. P. MUKERJI, J.)
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IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :- Hon'ble Mr. Justice I. P. Mukerji
Hon'ble Mr. Justice Biswaroop Chowdhury
SAT 39 of 2019
Jayanti Mali & Ors.
Vs.
Jaganath Proshad Singh & Ors.
Later (09.03.2023)
Although the Bar has passed a resolution not to attend the Court, today, we have delivered the judgment. This is for the reason that there is no scope for the appellants to ask for stay of operation of our judgment and decree as we have given them time to vacate the premises by February, 2024. Within such time they are at liberty to approach a higher forum.
I agree.
(BISWAROOP CHOWDHURY, J.) (I. P. MUKERJI, J.)
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