Calcutta High Court (Appellete Side)
Gopinath Pal And Ors vs Smt. Chyana Patra on 9 December, 2010
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Present: The Hon'ble Mr. Justice Tarun Kumar Gupta
S.A. No.99 of 1992
Gopinath Pal and Ors
Versus
Smt. Chyana Patra
For the appellants: Mr. M. P. Gupta
Mr. S. Bandyopadhyay
For the respondents: Mr. Haradhan Banerjee
Mr. Amitava Pyne Heard on: 07.07.2010, 09.07.2010, 21.07.2010 and 16.08.2010 Judgment on: December 9, 2010 Tarun Kumar Gupta, J.:-
This Second Appeal was filed by the defendant / tenant against judgment and decree dated 3rd May, 1991 passed by learned Second Assistant District Judge, Howrah in Title Appeal No.94 of 1990 reversing the judgment and decree dated 27.01.1990 passed by learned Munsif, 2nd Court, Howrah in Title Suit No.230 of 1984.2
By the impugned judgment learned First Appellate Court passed a decree of eviction against appellant / defendant / tenant on the ground of reasonable requirements of suit premises by the landlord / plaintiff. At the time of admission of the second appeal Hon'ble Division Bench observed that appeal would be heard only on the ground of partial eviction vide the order dated 22.08.1991. Hon'ble Division Bench was also pleased to grant stay of execution of the decree on condition that appellant /defendant / tenant would vacate and deliver peaceful possession of one of the bed rooms to the respondent / plaintiff within the fortnight from the date. It came out during hearing that in terms of said order dated 22.08.91 appellant / defendant / tenant handed over one of the bed rooms to the plaintiff who was in possession of the same since then.
During pendency of the appeal it came out that there were some changes in the composition of the family of the plaintiff on account of death of original plaintiff. The question arose as to whether said changed composition in the family of the substituted plaintiffs on account of death of the sole plaintiff, there is still further reasonable requirement of the suit premises which has since been reduced to only one bed room. Accordingly, this Court remanded the case to learned 1st Appellate Court for fresh determination of issue No.3 i.e., whether the substituted plaintiffs still reasonably required the suit premises for their own use and occupation vide order dated 8th August, 2001. At the same time leave was granted to the plaintiffs / 3 respondents to file an application for amendment of the plaint stating the present requirements with liberty to the appellants / defendants to file additional written statement, if any, to controvert the amended version of the plaint. Learned Lower Appellate Court was directed to record evidence on the point of requirements of the plaintiffs and to forward its findings thereon to this Court.
On the basis of the aforesaid direction of this Court, Lower Appellate Court accepted the amended plaint, additional written statement and permitted the parties to adduce evidence on that particular point and forwarded its findings vide order No.67 dated 30.10.2006. According to learned Lower Appellate Court the suit bed room presently in occupation of defendant / tenant is reasonably required to meet the necessities of the plaintiff No.2 Monoranjan Pal and that other plaintiffs failed to establish their requirements in this regard. Against said findings of learned Lower Appellate Court a memorandum of cross objection was filed by the respondents / plaintiffs alleging that learned Lower Appellate Court in his remand order failed to appreciate the evidence on record and came to a perverse finding that except plaintiff No.2 Monoranjan Pal other plaintiffs failed to establish their reasonable requirements relating to said room.
It is, however, to be noted that appellants / defendants did not file any cross appeal and / or objection against the aforesaid findings of learned Lower Appellate Court vide order dated 30.10.2006.
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The original plaintiff Motilal Pal filed the said suit for ejectment against original defendant Suphal Patra alleging that plaintiff was a Thika tenant in respect of the land and absolute owner of the structure standing on Holding No.3/9 Akshay Chakraborty Lane, Howrah and that the defendant was a tenant under the plaintiff in the suit premises consisting two bed rooms as described in the schedule of the plaint at a monthly rent of Rs. 50/- payable according to English calendar month. Defendant defaulted in payment of rent since March, 1982. Defendant was also guilty of committing nuisance and annoyance to the plaintiff, his family members as well as to the local people and was also guilty of causing damages to the property. The condition of existing structure is bad and plaintiff required the suit premises for addition and alteration after demolition of the building. The plaintiff also required the suit premises for him and his family members' use and occupation. Plaintiff terminated tenancy of the defendant in the suit premises by sending an eviction notice which was duly received by the defendant. As defendant did not vacate the suit premises, the suit for ejectment was filed.
The original defendant started to contest the suit by filing written statement followed by additional written statement. In the first written statement filed in June, 1983 defendant admitted plaintiff as owner of the structure of the suit premises and the defendant as 'Gharbharatia' under the plaintiff. However, other allegations of the plaintiff / landlord including claim of reasonable requirement of suit premises were 5 denied by the defendant. In subsequent written statement dated 14.01.1985 defendant, however, challenged the plaintiff's claim of being owner of the suit holding. The defendant also filed another W.S. denying the assertions of the plaintiff in his subsequent amendment of the plaint.
On the basis of the evidence on record learned Trial Court though came to the conclusion that plaintiff was a Thika tenant in respect of the structure, and that defendant was a tenant under the plaintiff, and that notice to quit was legal, valid and duly served upon the defendant, but dismissed the suit as plaintiff fails to establish any of the grounds including reasonable requirements for eviction of the defendant / tenant.
In the appeal being Title Appeal No.94 of 1990 filed by the plaintiff learned First Appellate Court reversed the judgment of Trial Court and passed a decree of eviction on the ground of reasonable requirement of the suit premises consisting of two bed rooms in favour of the plaintiff / landlord and against defendant / tenant. Against said judgment of learned First Appellate Court this second appeal has been filed.
I have already stated that at the time of admission of this second appeal the ejectment decree was stayed on condition of delivering possession of one of the bed rooms to the plaintiff / landlord and there was delivery of one of the bed rooms to the plaintiff / landlord. There was death of both original plaintiff and original defendant 6 resulting substitution of the legal heirs. There was limited remand to the Lower Appellate Court for deciding issue No.3 whether the substituted plaintiff reasonably required the suit premises for their own use and occupation and learned First Appellate Court has sent her findings in this regard as already stated.
In view of the materials lying in the record and their submissions made by learned advocates of both sides the following substantial question of law have been framed for disposing of this appeal as well as cross objection.
(1) Whether the suit for ejectment filed by Thika tenant against 'Bharatia' has been barred by law on the ground of promulgation of West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001.
(2) Whether learned First Appellate Court substantially erred in law at the time of reversing the judgment of Trial Court by holding that entire suit premises was reasonably required by the plaintiff for use and occupation of self and his family members without considering whether partial eviction would satisfy the need of the plaintiff / landlord. (3) Whether learned First Appellate Court in the judgment of remand erred in law and made perverse findings contrary to evidence to the effect that except plaintiff No.2 Monoranjan Pal no other plaintiff was entitled to get a decree for eviction on the ground of their reasonable requirement. 7 Mr. M. P. Gupta, learned advocate for the respondents, submits that admittedly the original appellants filed the suit for eviction claiming him as Thika tenant and the defendants as his Bharatia and that present appellants stepped into the shoes of the original plaintiff. According to him, the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 came into force with effect from 01.03.2003 after repealing the earlier Act i.e., Calcutta Thika and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981 vide Section 27 (1) of the Act. According to him, under Section 8 of this Act of 2001, Thika Tenants and Bharatias are to be governed by West Bengal Premises Tenancy Act, 1956 and that the Controller, to be appointed under Section 9 of said Act, has to deal with the disputes concerning Thika tenants and Bharatias. According to him, after promulgation of said Act of 2001 with specific provision of bar to jurisdiction of Civil Court under Section 21 of the Act, the present appeal cannot proceed any further as appeal is nothing but continuation of suit. According to him, as this case of eviction was filed by Thika Tenant against a Bharatia in a Civil Court and decree was passed and the Second Appeal is pending as on date, in view of specific bar under Section 21 of the Act read with Section 8 and 11 of the same Act this appeal cannot proceed any further and is liable to be dismissed being not maintainable.
In support of his contention he has referred a case law reported in AIR 1985 Supreme Court page 111 (Lakshmi Narayan Guin v. Niranjan Modak). In the 8 referred case law it was held by the Hon'ble Apex Court "Where the decree for eviction was passed by the Trial Court against the tenant under the provisions of Transfer of Property Act and the statute namely West Bengal Premises Tenancy Act, 1956 giving protection to tenant against eviction extended to the concerned area during pendency of the appeal against the decree of eviction, the Appellate Court is bound to take into account the change of law and to extend its benefit to the tenant, and consequently to set aside the decree of the Trial Court and dismiss the suit. A change in the law during pendency of an appeal has to be taken into account and will govern the rights of the parties.
Mr. Haradhan Banerjee, learned advocate for the respondents, on the other hand, submits that Section 27(2) of the Act of 2001 is a savings clause whereby this appeal has been saved and that Act of 2001 has no application in this matter. He has further submitted that the referred case law has no application in the facts and circumstances of the present case.
I find much force in the aforesaid submission of learned advocate for the respondents. Clause 27(2) of the Act of 2001 is a savings clause in the line of Section 6 of the General Clauses Act. It was specifically stated in Section 27(2) of the Act that "Notwithstanding the repeal of the said Act, such repeal shall not-
(a) affect the previous operation of the said Act or anything duly done or suffered thereunder; or 9
(b) affect any right, privilege, obligation, or liability acquired, accrued or incurred under the said Act; or
(c) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against said Act; or
(d) affect any investigation, legal proceeding or remedy, in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed."
Hence the term 'said Act' means the earlier Act of 1991.
In Lakshmi Narayan Guin's case (ibid) there was a decree of ejectment against the tenant under T. P. Act but during pendency of the appeal, W.B.P.T. Act, 1956 was extended to that area. In the Act of 1956 tenant was protected from eviction except on certain grounds specifically mentioned therein. However, in the T. P. Act no such protection was extended to the tenant. Accordingly, Hon'ble Apex Court held that as after extension of said Act of 1956 to the suit premises area no tenant can be evicted save and except in terms of the provisions made under Section 13(1) of the Act wherein tenant was given protection against eviction except in some 10 situations mentioned therein, and no such protection was available to the tenant under T. P. Act, a tenant was entitled to avail those protections in a pending appeal.
In the new Act of 2001 Thika tenants and Bharatias are to be governed by West Bengal Premises Tenancy Act, 1956. The same was the provision under the earlier Act i.e., the Calcutta Thika nd other Tenancies and Lands (Acquisition and Regulation) Act, 1991. As such by this new Act of 2001 no new protection was given to the Bharatia which was not available under the earlier Act of 1991. There is only the change of forum.
Apart from that in the West Bengal Premises Tenancy Act, 1956 there was no savings clause to save the decree already passed against a tenant in an area where W. P. T. Act, 1956 was not applicable at the initial stage but later on extended. In view of the above, I am of the opinion that the referred case law has no application in the facts and circumstances of the present case, and that the Act of 2001 has no application in this case.
Admittedly, after death of the original plaintiff/ landlord his legal heirs, namely two sons Gopinath and Monoranjan, and three daughters already married were brought on record. Admittedly, Gopinath Pal along with his family members which included two sons, their wives and their children all along resided in a Dum Dum house owned by him.
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Sri Gupta, learned advocate for the respondents, submits that owning of said house at Dum Dum by Gopinath was not disclosed in the plaint initially and that it came out during cross-examination and that later on it was mentioned in the amended plaint and that on that ground the appellant/landlords were not entitled to get any decree of eviction as they did not come to the Court in clean hands. In this connection he has referred a case law reported in (2003) 9 SCC 151 (Kishan Chand v. Jagdish Pershad and ors.). In the referred case Hon'ble Apex Court held that "when the landlord suppressed his other accommodation and it also came out that he had plenty of accommodation in the suit building he was not entitled to get any decree of eviction against tenant.
Mr. Banerjee, learned advocate for the appellant/plaintiffs, on the other hand, submits that said case law has no application in the facts of this case as it came out that the present accommodation of the plaintiffs was too meager and that owning of Dum Dum house by Gopinath was candidly admitted by P.W.s. and that it was also disclosed in the amended plaint.
I find much force in the aforesaid submission of Mr. Banerjee. In the referred case law it came out that the landlord was in possession of about 35 rooms and accordingly Hon'ble Apex Court held that landlord was not entitled to get any decree of ejectment against tenant.
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Admittedly, presently the appellant/plaintiffs are in possession of two R. T. shed rooms and one of the suit rooms (as per direction of this Court). It also came out from the evidence on record that presently the plaintiff No.2 Monoranjan Pal along with his wife, one son aged about 23 years and one daughter aged about 17 years are residing in the suit house from the time of his father.
At the time of passing order dated 30.10.2006, learned Lower Appellate Court came to the positive finding that Monoranjan Pal required at least three bed rooms, one for self and wife, one for adult marriageable son and one for daughter, together with a room for drawing-cum-guest room and a thakur ghar keeping in mind defendant's admission that due to paucity of accommodation Monoranjan Babu's son slept at night in the verandah. According to learned Lower Appellate Court partial eviction of the defendant/tenant from one room, already made in terms of this Court's Order, will not fulfil the requirements of Monoranjan Babu and that eviction of defendant from other room is required to satisfy the reasonable need of Monoranjan Babu.
However, learned Lower Appellate Court did not entertain the claim of reasonable requirement of the suit premises by other plaintiff /landlords namely Gopinath Pal and three married daughters. On that score present respondents / landlords filed a cross-objection arguing that other plaintiffs/landlords also required the suit premises for their reasonable accommodation.
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In this connection Mr. Gupta, learned advocate for the appellant/tenant, has referred a case law reported in (2003) 9 SCC page 606 (Banarsi and others v. Ram Phal) to impress upon this Court that there is no scope of filing cross-objection when no decree was passed against the party. In the referred case law it was categorically stated by Hon'ble Apex Court that though in the earlier Civil Procedure Code of 1908 there was no such provision of filing cross-objection when the decree was not against the party but the C. P. C. as amended in 1976 permitted a party to file a cross- objection against said finding even when a decree was in his favour, in terms of order 41 Rule 22 sub-rule 1 of C. P. C. As such the respondents/landlords had the right to file said cross-objection against those findings of learned Lower Appellate Court denying alleged need of other plaintiffs/landlords in the suit house.
I find from the order dated 30.10.06 of learned Lower Appellate Court that she rejected their claim for reasonable requirement on valid and cogent grounds. There was neither any pleading nor any evidence that Gopinath Pal's accommodation in Dum Dum residence was not adequate or that he wanted to sell it out for coming to reside in suit house.
The landlords also tried to make out a case that one of the plaintiffs namely Annapurna Chowdhury who used to reside in her railway quarter with her husband, shifted to the residence of her another sister Chabi Chakraborty as railway quarter 14 had to be vacated on retirement and that for her residence one of the rooms in the suit house was required.
I find from the lower Court record that no document whatsoever was filed to show that Annuapurna Chowdhury and her husband were residing in railway quarter, or that they had to vacate the same on account of retirement, or that they are presently residing as licensee in the house of Chabi Chakraborty. If that be the position, then I do not find any infirmity in the findings of Lower Appellate Court regarding not proving of the alleged requirements of other plaintiffs in the suit premises. However, for other co-sharer plaintiff's occasional visit and night stay in suit house one guest room is required.
It came out that the requirement of Monoranjan Pal is three bed rooms, one drawing-cum-guest room and one Thakur Ghar though he has present accommodation of only two R. T. shed rooms and one of the suit rooms. As such the requirement of plaintiff / landlords in respect of the other room of the suit premises which is presently in occupation of the defendant/tenant cannot be said to be unjust or mere desire.
Accordingly, I am of the opinion that the respondents /landlords are entitled to get an order of eviction in respect of entire suit property consisting of two bed rooms and that order of partial eviction from one room (as already effected) will not fulfil the requirements of the landlords.
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As a result, the appeal fails and the impugned judgment and decree dated 3rd May, 1991 passed by learned Second Assistant District Judge, Howrah in Title Appeal No.94 of 1990 is hereby confirmed.
Send down L.C.R. to the Lower Court along with a copy of this judgment expeditiously.
Urgent xerox certified copy of this judgment be supplied to learned Counsels of the party / parties, if applied for.
(Tarun Kumar Gupta, J.)