Calcutta High Court (Appellete Side)
Dr. Somnath Dhar vs Manibi Dey & Anr on 20 May, 2019
Author: Subhasis Dasgupta
Bench: Subhasis Dasgupta
In the High Court at Calcutta
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon''ble Justice Subhasis Dasgupta
S.A 304 OF 2012
With
CAN 3719 of 2019
Dr. Somnath Dhar
Vs.
Manibi Dey & Anr.
For the appellant : Mr. Asit Baran Raut, Adv.
Mr. Jayanta Kumar Dhar, Adv.
For the respondents : Mr. Purbangshu Chandra Mitra, Adv.
Mr. Sudhir Kumar Sadhukhan, Adv.
Mrs. Piyali Mitra, Adv.
Judgment on : 20.05.2019 Subhasis Dasgupta, J:-
This is a landlord's appeal (appellant) against an appellate decree in ejectment suit of learned Judge 11th Bench City Civil Court Calcutta affirming that of the decision of learned Judge 3rd Bench Presidency Small Causes Court Calcutta. The suit for ejectment was brought by appellant in ejectment suit No. 174 of 2005 under the West Bengal Premises Tenancy Act 1997 against tenant/defendant taking grounds of defaulter reasonable requirement etc. after servicing notice of eviction to tenant/defendant. The learned Judge 3rd Court, Presidency Small Causes Court dismissed the suit for eviction disbelieving the reasonable requirement on the part of the landlord.
Appellants/plaintiffs case may be put in short compass as follows:
The plaintiff being a Homeopathic Doctor was owner of the suit building and the respondent/tnant occupied a single room in the 1st Floor as a tenant at a rent of Rs.80/- per month payable according to english calendar month. The plaintiff reasonably required the tenanted room for his own use and occupation of his family members, as he had been already served with a notice issued by his cousin brother Dr. Ranjit Dhar revoking his licence in respect of a house building, situated at 68A Ahiritola Street Calcutta -5, in which plaintiff has been possessing the same as a licencee apart from his own and independent house situated at 68 B Ahiritola Street Calcutta -5. According to plaintiff/appellant the father of the plaintiff namely, Bhabatosh Dhar was the only owner of the suit property. After the demise of father, both plaintiff (Dr. Somnath Dhar, an Homeopathic Doctor by profession) and his brother Sanjit Dhar jointly inherited the property. Subsequently on the strength of a registered partition deed dated 30.06.2004, the plaintiff became absolute owner of the suit property situated at 68B Ahiritola Street Calcutta-5. During the life time of the father of the plaintiff, he has been using as a licencee in respect of the building situated at 68A Ahiritola Street Calcutta-5 belonging to his uncle Ashutosh Dhar, and after his demise, his cousin brother Dr. Ranjit Dhar inherited the same. Dr. Ranjit Dhar issued a notice revoking his licence dated 22.11.2004 and thereby asking plaintiff brother to vacate the rooms under his possession as a licensee, situated at 68A Ahiritola Street. Since tenant/defendant was a defaulter in the payment of rent, and since plaintiff reasonably required the suit premises for want of his suitable reasonable alternative accommodation elsewhere, a notice of eviction was served upon the tenant/defendant on 15.12.2004, which was received by the defendant/tenant dated 20.12.2004, and ultimately decree for eviction was sought for by filing an ejectment suit on the grounds as aforementioned.
After the demise of original tenant Durgacharan Dey, the present tenants/defendants contested the suit by filing written statement denying service of eviction notice together with the reasonable requirement of the plaintiff with a further plea of defect of parties in the institution of the instant suit.
Learned Trial Court already framed as many as seven (7) issues upon considering the facts in issue involved in the case and dismissed the suit.
The appellant/landlord/plaintiff filed a Title Appeal being No. 5 of 2011 challenging the judgment and decree dismissing the suit. Learned 1st lower Appellate Court dismissed the appeal expressing dissatisfaction with the reasonable requirement, as put forth by the landlord/plaintiff after holding that the notice of eviction was rightly served meeting requirements of the law, and further the suit was not at all suffered from defect of the parties, disturbing the relevant findings in connection therewith, reached by the learned Trial Court.
Being aggrieved and dissatisfied with the judgment of affirmance passed by the learned 1st lower Appellate Court, this Second Appeal has been preferred by the plaintiff/landlord. At the time of admission of the Second Appeal, the Division Bench of this court framed the following substantial questions of law to be heard at the time of dispossal of appeal.
i) Whether both the courts below, substantially, erred in law by dismissing the suit for eviction on the ground of own use and occupation as the landlord/appellant has inducted a tenant much before the institution of the suit?
ii) Whether the accommodation available to the appellant in his uncle's premises as the licensee can be termed reasonably suitable accommodation so as to disentitle the appellant to evict the tenant from the suit premises under Section 6(1)(d) of the West Bengal Premises Act, 1997?
At the very threshold of this case, this may be mentioned here that admittedly no cross appeal was filed by the respondent/tenant/defendant in this case, and instead thereof a CAN application being No. 3719 of 2019 was taken out to challenge the legality and validity of the findings reached by the 1st learned learned lower Appellate Court with reference to notice point, and reasonable requirement, which remained decided against the interest of the landlord by the 1st learned lower Appellate Court. 'Ext.-1' is the partition deed dated 30.06.2004 conferring right, title and interest upon the landlord/plaintiff over the suit building situated at 68B Ahiritola Street, from which tenant/respondent was sought to be evicted from a room of 1st Floor of such building. The Father of the plaintiff Bhabatosh Dhar and his uncle Ashutosh Dhar were the original owners of the suit property. A partition was effected between them in the year 1977. The father of the appellant as per partition deed was favoured with suit building situated at 68B Ahiritola Street. After the demise of the father of the plaintiff, the brother of plaintiff namely Sanjit Dhar and plaintiff himself inherited the suit building of 68B Ahiritola Street, as their mother already pre-deceased their father long before. Later after a partition effected on 30th June, 2004 (Ext.-1), the suit property was allotted to the appellant. Ext.-1 shows allotment of one room in the 1st Floor, and one room, Thakur Ghar, Kitchen and bath privy in the ground floor in the portion of landlord/plaintiff. Thus in all plaintiff had been allotted with four (4) rooms bath privy including one (1) room in the 1st Floor under occupation of defendant/tenant.
In the plaint itself plaintiff claimed his occupation in respect of his portion allotted to him by way of partition deed (Ext.-1) over two rooms and a Kitchen situated at 68B Ahiritola Street. The plaintiff's family comprised of himself, his wife and a son. A Commission was held by learned Commissioner at the instance of the plaintiff/landlord to get the suit property inspected situated at 68B Ahiritola Street, and that of the house situated at 68A Ahiritola Street belonging to his uncle, wherein the plaintiff/landlord has been residing there for the last 30 years as a licencee therein. Learned Commissioner after holding inspection submitted his report (Ext.-8) revealing that there are as many as four(4) bed rooms, independent set up for kitchen, toilet, store house etc. in a three storied building, situated 68A Ahiritola Street presently under occupation of plaintiff/landlord, while there are as many as three(3) rooms in the ground floor under possession of plaintiff/landlord, out of which one is big room and rest two are small rooms, used as store rooms etc. There is a staircase for easy access to both the houses situated at 68A Ahiritola Street and 68B Ahiritola Street. The big size room is used as Chamber of the plaintiff measuring an area of 14ft.x9ft. while other rooms used as store rooms measured area of 9ft.x6ft. and 3½ft.x6ft. respectively. The learned Commissioner's report focused that plaintiff/landlord was in possession of entire three storied building situated 68A Ahiritola Street owned by cousin brother of landlord/plaintiff having four(4) bed rooms one kitchen, and one covered space measuring 2½ft.x9ft. in the 1st Floor of the building together with one asbestos roof room in the 2nd Floor.
Both the courts below disbelieved the requirement of plaintiff/landlord upon considering his existing possession over his own building situated at 68B Ahiritola Street, and that of his cousin brother's building at 68A Ahiritola Street. Since landlord/plaintiff in course of his evidence admitted that he had a separate chamber being a Homeopathic Doctor at 36A Balaram Ghosh Street, apart from his further chamber situated at his own house of 68B Ahiritola Street, both the courts below disbelieved the bone fide requirement of having a chamber at all for the plaintiff. More so, both the courts below expressed dissatisfaction with the respect to reasonable requirement of the plaintiff taking into account the rooms under possession of the plaintiff, both at 68B Ahiritola Street and 68A Ahiritola Street.
Upon considering the recitals of partition deed '(Ext.-1) together with the claim of the plaintiff, put forth demonstrating his possession in respect of three (3) rooms in the ground floor of his own house at 68B Ahiritola Street, in the context with materials transpired in the learned Commissioner's report (Ext.-8), the learned lower Appellate Court decided the appeal holding that the suit was not at all suffered from defect of the parties, contrary to the decision of the learned Trial Court, and further determined that the notice of eviction was rightly served in terms of the requirement of the law, and thereby differing with the findings reached by the learned Trial Court below to that effect.
Though the tenant/defendant was held to be defaulter in connection with a proceeding under Section 7(2) of the Act, but when tenant/defendant subsequently made consistent payment of rent without making any departure, the tenant was favoured with protection available under the law.
Learned advocate for the appellant/plaintiff/landlord submitted that learned 1st lower Appellate Court committed a gross illegality in making proper application of the provisions of the law in context with the evidence adduced by the parties in the case, and erred in law in holding that when plaintiff/landlord had his possession in respect of entire house building situated at 68A Ahiritola Street comprising of four (4) bed rooms one kitchen, together with sufficient other spaces available there, belonging to his cousin brother (DW 2), other than his own house having three (3) rooms there inclusive of a chamber therein, he could not be considered to be in urgent need of accommodation forgetting the fact that plaintiff admittedly has been possessing his uncle's house, now under ownership of his brother (DW 2), as a licencee and had already been served with a notice revoking his licence dated 22.01.2004, thereby making his possession most vulnerable, precarious and dangerously in-secured also. It was the submission of the learned advocate for the appellant that the suitability had to be seen from the convenience of the landlord and his family members and on the basis of totality of the circumstances including the profession, vocation, style of living, habits and background, and the test of such suitability could not be applied by the learned 1st lower Appellate Court, in the light of a decision reported in (2001) 2 SCC 335 delivered in the case M.L. Prabhakar vs. Rajiv Singal.
Learned advocate for the appellant/landlord further submitted that when plaintiff had already been served with a notice revoking his licence, his existing possession in respect of 68A Ahiritola Street belonging to his uncle, and on his demise presently to his cousin brother (DW 2) as a licencee therein was dangerously in-secured, and whenever the landlord expressed his wish to live with comfort in a house of his own, the law could not be allowed to compel him to posses the building belonging to DW 2, what had been rendered precarious after the service of notice revoking the licence.
Reliance was placed by the appellant in order to establish his claim for eviction as bone fide requirement being sincere, natural, real, honest desire in contradistinction of mere pretext to a decision reported in (2001) 8 SCC 561 rendered in the case of Siddalingamma and Anr. vs. Mamtha Shenoy. The service of notice making revocation of licence in respect of the possession of over other house situated at 68A Ahiritola Street left materials to reveal the need in praesenti as distinguished from a mere whim and fanciful desire. It was also raised in argument by the appellant that the landlord was the best judge of his own requirement, and the courts have no concern to dictate the landlord as to how and in what manner landlord should live, taking shelter to a decision reported in (2008) 8 SCC 497 delivered in the case of Deep Chandra Juneja vs. Lajwanti Kathuria (Smt) (Dead) Through Lrs.
Admittedly the tenancy of the respondent commenced long before, and the erstwhile tenant from whom the present tenant inherited was inducted as tenant during life time of father of the plaintiff. Profit was sought to be derived by appellant taking resort to a decision reported in (2010) 12 SCC 740 delivered in the case of Dinesh Kumar vs. Yusuf Ali in order to persuade the court that mere continuation of long tenancy could not be a ground to reject the case of the bone fide need. It was arduously argued by the appellant that any temporary accommodation, given to a relation by way of licence could not be held to be a suitable alternative accommodation, what had been decided in the case of Smt. Sumilita Bhattacharya vs. Smt. Nila Chatterjee reported in 1989(2) CLJ 351, and the learned 1st lower Appellate Court mistakenly put much emphasis upon his existing possession over a building belonging to his cousin brother, and from which he had already been threatened with eviction rendering his possession most dangerously in-secured.
Submission was also made by the appellant that there was no such law that the landlord/owner could be deprived of using his own premises in order to accommodate the tenant although the landlords were in a position to establish that they were badly in need of accommodation, and that need could only be satisfied by way of evicting the tenant/defendant from the suit premises, taking support of a decision reported in 2008 (1) CLJ Cal 538 delivered in the case of Miss Krishna Bhattacharjee vs. Goutam Bose & Ors.
Learned advocate for the appellant/landlord lastly submitted that the learned 1st lower Appellate Court having adopted erroneous approach to determine the reasonable requirement of plaintiff considering his existing possession for the last 30 years over a house situated at 68A Ahiritola Street, belonging to his cousin brother, and there was no such express prohibition to entertain a second appeal even on question of fact, what is ordinarily not considered, in a case where materials conspicuously revealed that the findings of the court below were vitiated by non- consideration of relevant evidence or by showing erroneous approach to the matter, taking recourse to a decision reported (2010) 12 SCC 740 delivered in the case of Dinesh Kumar vs. Yusuf Ali.
Attention of the court was drawn to the relevant provisions of the law in order to establish that recording of findings on the question of fact by the learned 1st lower Appellate Court not being applied in terms of the statutory provisions contained in the tenancy legislation under reference to the evidence on record in its proper perspective, the findings so reached regarding bone fide requirement would cease to be a mere findings of fact, and for such erroneous findings, illegally arrived at, would vitiate the entire judgment, and the High Court has jurisdiction to exercise its power in Second Appeal under Section 100 of the Code of Civil Procedure, argued by the learned advocate for the appellant relying on a decision reported in 2001 5 SCC 705 in the case of Deena Nath vs. Pooran Lal Learned advocate for the respondent/tenant controverting the submissions raised by the appellant submitted that a bare perusal of the impugned judgment of the learned lower Appellate Court, would appear that while disbelieving the reasonable requirement of the plaintiff/landlord as put forth, the 1st learned lower Appellate Court had already considered the relevant pleadings and findings arrived thereon made after appreciation of the evidence by the learned Trial Court, which ought not to be interfered with by surmises and conjectures on the question of facts. Thus, the respondent/tenant strongly disputed with the approach adopted by the landlord/plaintiff in his effort to disturb the findings of fact already arrived at by the learned 1st lower Appellate Court, based on appreciation of evidence on record, adduced by the parties to this case. Reliance was accordingly placed by respondent/tenant on a decision reported in (2006) 6 SCC 604 delivered in the case of Jai Prakash Khaderia vs. Shyam Sunder Agarwalla and Anr.
Argument was raised for the respondent/tenant that in the absence of any valid and acceptable reasons, the findings recorded by the learned 1st lower Appellate Court should not be disturbed for want of perversity or unreasonableness being not supported by any evidence. It was proposed accordingly that while exercising jurisdiction under Section 100 CPC, the High Court in exercise of such power under Section 100 CPC would not ordinarily reverse the findings of the lower Appellate Court on facts, merely on the ground that another view, other than the findings reached by the learned 1st lower appellate court, was also possible. Thus reliance was placed by the learned advocate for the respondent/tenant on a decision reported in (2001) 5 SCC 30 delivered in the case of Hamida and Ors. vs. Md. Khalil on the issue that the concurrent findings reached by the court below on the point of reasonable requirement would go unaltered being based on perfect appreciation of evidence on record.
Learned advocate for tenant/respondent further candidly submitted that when both the courts below had already taken into account the rooms under possession of plaintiff available in both the houses, and when no action was commenced by taking appropriate legal action to evict the licencee from the house belonging to cousin brother situated at 68A Ahiritola Street, in the present case there left nothing to reveal the "must have" element in the need of the landlord, which he honestly felt, while seeking eviction taking grounds of reasonable requirement, and in the absence of "must have" element the bone fide thereof could not be effectively demonstrated in view of the decision reported in AIR(CAL) 1952 O852 delivered in the case of Naresh vs. Kanai Lal Roy Chowdhury. Notice of the court was drawn by learned advocate for the respondent to the impugned judgement of the learned 1st Appellate Court wherein it was held that had there been real/ genuine need, faced by the landlord/plaintiff, tenant would not have been inducted in the ground floor of the house situated at 68B Ahiritola Street. Relying upon a decision reported in (1981)AIR(SC)1113 delivered in the case of M.M. Quasim vs. Monohar Lal Sharma and Ors. Learned advocate for the respondent proposed that the court could take cautious cognizance of the events arising after the lis had come to the court, and post events being of such magnitude having fundamental impact on the right to relief and accordingly learned 1st lower Appellate Court had taken cautious congnizance of events and developments subsequent to the institution of the proceeding, the only rider to the proposition being the rules of fairness of both sides had to be scrupulously obeyed.
Thus according to respondent/tenant, it does not stand to reasons that the landlord enjoys an unfettered right to evict a tenant irrespective of the fact that he has some reasonable suitable accommodation elsewhere, which he would not preferably occupy and rather try to seek to remove the tenant, because if this approach be encouraged, it would put a premium on the landlord's greed to throw out tenant paying lower rent on the ground of reasonable requirement, what was not actually true, learned advocate for respondent/tenant strongly contended. Since the respondent/tenant refused to hike, or enhance exorbitant rate of rent, as demanded by the landlord, the instant suit for eviction was purposefully manufactured taking false plea of bone fide reasonable requirement, what was actually not true, genuine, honest, real fair and initiated under a pretext, being fanciful one, as clarified by learned advocate for respondent. Submission was further aimed at raising plea for the defendant/respondent/tenant that in the absence of commencement of legal action to evict the plaintiff/landlord as licence from the house, situated at 68A Ahiritola Street, his existing possession therein together with his rooms under possession in his own house, situated at 68B Ahiritola would necessarily make out a case of complete absence of element of need with all honesty and bone fide requirement well as against a true case of genuine need, felt honestly by the landlord/plaintiff proposing for eviction. Shelter was taken to a decision reported in (1998) AIR (SC) 746 delivered in the case of S.J. Ebenezer vs. Velayudhan and Ors. in order to persuade the court that there nothing developed necessitating shifting of accommodation for want of initiation of legal action against the landlord/plaintiff by his cousin brother for the purported eviction of a licencee, without which bone fide of the reasonable requirement could not be ascertained, and what was rightly appreciated in the real perspective of the evidence adduced by the parties. Lastly learned advocate for the respondent relying on an unreported judgment in connection with CA No. 2235 of 1984 of Apex Court delivered in the case of S. Devaji vs. K. Sudarshana Rao submitted that the evidence adduced and accepted by the Appellate Court, which is the final court of facts and findings recorded in that behalf disbelieving the reasonable requirement not being real genuine, fair and honest being devoid of "must have" element of need, would always go undisturbed in exercise of jurisdiction available under Section 100 CPC.
The notice of eviction dated 15.12.04 (Ext.4) appears to have been served providing clear one month time expiring with the month of tenancy to facilitate delivery of vacant possession of a tenanted premises to landlord in terms of the requirement contained under tenancy legislation, now under reference, and the respondent/tenant though disputed with the illegality, validity and service of the eviction notice, but upon consideration of the exhibited documents together with the text contained in the notice itself, the 1st Lower Appellate Court in terms of settled proposition of law declared the notice to have been served legally, and as such there was no impediment against the recovery of possession on the strength of a decree of eviction being granted after adjudication of grounds of eviction, taken for the purpose by the landlord available under the West Bengal Premises Tenancy Act, 1997. The challenge of respondent with regard to the notice of eviction would thus be without any sanction of law.
It has already mentioned that there was a staircase for making easy access to both the houses, one belonging to the plaintiff landlord situated at 68B Ahiritola Street and another situated at 68A Arihitola Street belonging to cousin brother of plaintiff (DW 2). In the impugned judgement, the testimony of DW 2 was described by the 1st lower Appellate Court to have been suffered from self contradiction, because in one hand DW 2 stated in evidence that he had two storied building at Kankurgachi, and he would never wish to return at Ahiritola house, but in other hand, he spoke of returning to his Ahiritola residence for the purpose of converting his Kankurgachi residence into a nursing home. The significant fact is that DW-2 admittedly issued notice (Ext. 2) revoking the licence of plaintiff in respect of his possession of rooms available in the house situated at 68A Ahiritole Street. Plaintiff/landlord has been residing there in exercise of his right as licencee for the last 30 years. The contradiction, as described by the 1st lower Appellate Court, could have been easily removed and/or eliminated, if the notice of revocation of licence was taken into account in its real perspective with that of the evidence transpired in the cross examination of DW 2 proposing for return to Ahibitola house for conversion of his house into nursing home. Had there not been any intention to revoke licence of plaintiff/landlord in respect of the house situated at 68A Ahiritola Street, there would not have been a notice of revocation issued, and if that intention of the DW -2 was-considered in context with the evidence of DW 2 proposing his return to Ahiritola house for converting his residential house at Kankurgachi into a nursing home, the contradiction that came up would have been easily gone out. Commencement of subsequent legal action though relevant, but neither determinative, nor significant so much for our present purpose because essence of notice revoking a licence would matter much in a case, when admittedly plaintiff/landlord was a licensee in respect of the house belonging to his cousin brother. The possession of the plaintiff was rendered dangerously in-secured so as to continue possession for any further period of time. The issue was incidentally raised in the case of Smt. Sumilita Bhattacharya (supra) as referred by the learned advocate for the appellant wherein it was held that the accommodation as licencee on the face of it must be held to be precarious accommodation, absolutely dependent upon the good gesture and kind provision of licensor. It was thus held in such decision that if a close relation considering the acute hardship permits the close relation to reside for some time in a flat of such relation, such accommodation is inherently a temporary, and precarious accommodation, and not a reasonable alternative accommodation.
Upon applying principle of suitability as decided in the case of M.L. Prabhakar (supra), already referred by the appellant, what is required to be looked into is the convenience of landlord and his family members, regard being had to the totality of the circumstances including his profession, vocation, style of living habits and background of the case. The existing possession of plaintiff over his cousin brother's house as a licencee therein, what has already been rendered precarious after issuance of notice in revocation of licence, cannot be reasonably held to be suitable for the plaintiff any more in the instant case. Moreso plaintiff's possession over his own house being itself insufficient/inappropriate, compared to the actual need of plaintiff/landlord, the order of eviction deserves consideration.
Admittedly plaintiff/landlord is a Homeopathic Doctor by profession having his one chamber at Balaram Ghosh Street and another at the ground floor of his own house situated at 68B Ahiritola Street. The plaintiff/landlord has possession also in respect of two small rooms at the ground floor of his own house shown as store room, vide learned Commissioner's report, and upon consideration of its measurement and size, those two small rooms can hardly be regarded to be made of use as bed rooms for living purposes. The family of the plaintiff/landlord comprised of three members including his growing son. The landlord/plaintiff is in need of seven(7) rooms compared to his needs, which he specifically put forth in his pleading. The Trial Court as well as the 1st lower Appellate Court having considered the existing possession of plaintiff over his own house situated at 68B Ahiritola Street, and another house belonging to his cousin brother situated at 68A Ahiritola Street remaining easily accessible by staircase from 68B Ahibitola Streed mistakenly assessed both house buildings to be a single unit, and after adopting an erroneous approach proceeded to disbelieve the reasonable requirement terming it to be not genuine, real, honest and fair need in a sense of bone fide requirement in praesenti, when admittedly partition has been effected long before in respect of ancestral property by metes and bounds.
The respondent/tenant vehemently opposed to the exercise of jurisdiction available under Section 100 CPC by this court in order to establish that the concurrent findings reached by both the court below including that of the 1st lower Appellate Court being based on appreciation of evidence should not have been interfered with. Ordinarily Second Appeal would not lie on the ground of erroneous findings of fact based on appreciation of relevant evidence. As has already discussed that at the time of admission of this appeal, this court formulated substantial questions of law to be heard meaning thereby it is not a case when there was no question of law required to be heard out. For the present purpose under reference, this Court feels obliged to refer Sub-Section 1(d) of Section 6 of West Bengal Premises Tenancy Act, 1997, which may be reproduced as hereunder.
6. Protection of tenant against eviction.(1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any contract, no order or decree for the recovery of the possession of any premises shall be made [by the Civil Judge having jurisdiction] in favour of the landlord against the tenant, [except on a suit being instituted by such landlord] on one or more of the following grounds:-
(d). Where the landlord or any person, for whose benefit the premises is held, reasonably requires the premises for his own occupation and the landlord or such person is not in possession of any suitable accommodation within the same Municipal Corporation or Municipality or in any other area within ten kilometres from such premises where this Act extends.
The eviction based on reasonable requirement has to be adjudicated in the perspective of a situation where the landlord is not in possession of any suitable accommodation. Therefore reasonableness and suitability need to be adjudicated looking into the convenience of the landlord and his family members, the profession, vocation, style of living habits, background of the case and on the basis of the totality of the circumstances what has been decided in the case of M.L. Prabhakar (supra). The suitability of the landlord cannot be expected to be detected or decided either by the court, or at the instance of the defendant/tenant raising a plea that the tenant might be rendered shelterless in the event of decree of eviction being implemented, keeping in view the enjoyment of long period of tenancy, held by the defendant/tenant.
The service of notice in revocation of licence, though devoid of furnishing information as to the commencement of legal action for eviction thereform, but the message conveyed thereunder had significantly threatened the possession of the plaintiff/licencee in respect of his possession over house belonging to his cousin brother, rendering his possession thereby automatically to become most dangerously in-secured, vulnerable and precarious also. This aspect not having been adequately taken care of by the learned 1st lower Appellate Court in terms of the settled proposition of law, the decision reached by the 1st learned lower Appellate Court can be safely branded to have reached inappropriately adopting an erroneous appraoch, while disbelieving the case of plaintiff/landlord, based on a reasonable requirement, and as such it can be concluded with all certainty that in the absence of any express prohibition to entertain a Second Appeal in a case based on question of fact, this court in exercise of its authority available under Section 100 C.P.C can entertain 2nd appeal though based on facts, where the findings of the court below would be vitiated for adopting an erroneous approach to the matter as already happened in this case. The decision thus referred by the appellant in the case Dinesh Kumar (supra) would be squarely applicable in the given circumstances of the case.
Learned 1st lower Appellate Court observed that had there been any existing and imminent need in a sense of real, genuine bona fide requirement, the plaintiff/landlord would not have tenanted one room to tenant, without ascertaining the fact of commencement of such tenancy, what was most pertinently required incidental to making such findings, because in the case at hand, where the same was alleged to have commenced long before the institution of this ejectment suit. In exercise of appellate jurisdiction, it is settled proposition of law that the Appellate Court may take cautious cognizance of events and developments, having fundamental impact on the right to relief to subsequent events and developments provided the rules of fairness apply to both sides are scrupulously obeyed. But in the case at hand, the subsequent commencement of tenancy in respect of one room under possession of plaintiff in the ground floor, situated at 68B Ahiritola Street, though taken care of by the 1st lower Appellate Court, but no witness was examined on that score to reveal such thing in support thereof in order to discharge the onus of the defendant/tenant, who alleged the same. In the absence of commencement of the tenancy being conspecuously shown, as alleged to have happened in this case in respect of one tenant in the ground floor of his own house of plaintiff, the decree of eviction should not be denied merely looking at the presence of another tenancy in the suit building, where plaintiff/landlord lawfully established his case based on reasonable requirement surfacing his existing imminent need, genuine, real in sense of bona fide reasonable requirement as opposed to pretext and fanciful desire.
Upon considering the rival submissions raised by the parties, the only inevitable conclusion is that a decree of eviction is necessarily to be awarded with. The impugned judgement of affirmence of the learned 1st lower Appellate Court dismissing the appeal being T.A No. 5/11, of XI Bench, City Civil Court, Calcutta and thereby disbelieving the reasonable requirement is not sustainable and accordingly set aside.
Though the landlord/plaintiff has his requirement to the extent of seven (7) rooms as put forth in his pleading, but in any event such extent of requirement will not be successfully satisfied in the event landlord/plaintiff being allowed to be shifted to his own house for his peaceful living to the extent possible. Neither the comfort living of the landlord so as to have a peaceful living in his own house, nor the choice of the landlord/plaintiff or option available to him to evict which of the tenants residing in the suit building can be guided and/or determined either by the advice of the court or receiving suggestion/advice of the tenant, sought to be evicted. It is purely left at the discretion of landlord/plaintiff to secure his optimum level of comfort zone to the extent possible.
The appeal therefore, succeeds.
The appellant/plaintiff/landlord as such do get a decree eviction against respondent/tenant. The respondent/tenant is directed to vacate and deliver vacant khas possession of tenanted room to landlord/plaintiff within 60 days for the date of this order, failing which the appellant/plaintiff/landlord would be at his liberty to put the decree in to execution.
Office is further directed to send one copy of judgment to learned 1st lower Appellate Court for information.
With this direction and observation, the appeal is disposed of. With the disposal of this appeal, the CAN application being No. 3719 of 2019 stands automatically disposed of.
Office is directed to send down lower court's record along with copy of the judgment by special messenger to the learned Trial Court for information and necessary action.
Urgent certified copy of this order, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.
(Subhasis Dasgupta, J.)