Calcutta High Court
Debabrata Gupta vs Nanigopal Bhattacharjee on 28 January, 2005
Equivalent citations: (2005)2CALLT383(HC), 2005(3)CHN95, AIR 2005 (NOC) 465 (CAL), 2005 A I H C 3010, (2005) 2 RENCJ 417, (2005) 2 RENCR 300, (2005) 2 CALLT 383, (2006) 3 CIVLJ 470, (2005) 2 RENTLR 360, (2005) 3 ICC 798, (2005) 3 CAL HN 95
JUDGMENT Arun Kumar Mitra, J.
1. This second appeal has been filed in this Court challenging the judgment and decree passed by the Appellate Court below in T.A. No. 36 of 1994 by the learned Assistant District Judge, 6th Court, Alipore on 30th August, 1994 setting aside the judgment and decree dated 11/01/1994 passed by the learned Munsif, 3rd Court, Alipore in T.S. No. 10 of 1998.
2. This appeal was preferred before this Court in connection with a suit for ejectment and recovery of khas possession and damages.
3. The appeal was taken up for hearing. The learned Counsel for both the parties started making their submissions and this Court was to find out first as to whether there is any substantial question of law on which this appeal could be decided.
4. It may be mentioned in this connection that when the appeal was heard under Order 41 Rule 11 of the Code of Civil Procedure, the Hon'ble Division Bench admitted the appeal on the question as to necessity for consideration of the case of partial eviction by the Court of Appeal below and as to whether its failure to do so has resulted in substantial error of law.
5. This Court took up the matter for hearing and it was submitted on behalf of the appellant that an application has been filed by the appellant herein being CAN 425 of 2002 for taking into consideration the subsequent events.
6. The learned Counsel for the respondents admitted that they have also filed such an application being CAN 116 of 2002. Both the applications were heard and it was found that a decision can't be taken on these two applications or the appeal can't be finally decided unless these two applications referred to above are tried on evidence.
Naturally, this Court sent the two applications to the Trial Court for taking decision on the subsequent events; when sending these two applications this Court formulated four points which are as follows :
i) Whether the defendant/tenant is actually occupying the suit premises or has shifted to any other flat and if so whether the landlord/plaintiff is entitled to decree of eviction of the defendant/tenant on this score or not ?
ii) Whether the ground floor flat as alleged by the appellant herein has been vacated by the tenant as alleged in the application being CAN 425/2002 and if so whether the said flat of the ground floor is vacant and the said flat of the ground floor is of identical accommodation to tenanted suit premises or whether it has been subsequently let out by the landlord or if vacant whether they satisfy the requirement of the landlord as claimed in the plaint and if so whether the landlord is still entitled to decree for eviction or not ?
iii) Whether the only daughter of the landlord/plaintiff got married and shifted residence permanently to her matrimonial home or not and if so whether this satisfies the requirement of the plaintiff as claimed in the plaint or not ?
iv) Whether as submitted by the learned Counsel for the defendant/appellant herein, as made out in Ground No. 8 of those memorandum of appeal there is any decree for partial eviction or not ?
7. This Court directed the Trial Court to hear out the two applications referred to above on these four points and the learned Court was further directed to remit back the entire records along with decision taken on evidence on the points mentioned above and on hearing the parties there on these points to this Court immediately on completion of the said process that is immediately after the Trial Court comes to a decision on the points mentioned above.
8. Pursuant to the direction passed by this Court the Trial Court took up the matter for hearing. The Trial Court took evidence and on an application filed before him under Order 30 Rule 7 of the Code of Civil Procedure appointed Commissioner for holding local inspection and obtained the Commissioner's report also.
9. The Trial Court gave its observations on the four points.
10. Accordingly the learned Counsel for the parties started making submissions on the observations of the learned Trial Court referring to Commissioner's report as well as the evidence adduced before the learned Trial Judge after the remand.
11. The learned Counsel for the appellant submits that the finding made by the lower Appellate Court on the four points are wrong and has been averred at without considering the evidence on record.
12. The learned Counsel for the appellant submits that the appellant has purchased a flat at Kasba but that is a very small one and the learned Appellate Court below wrongly came to a decision that since there is alternative accommodation of the plaintiff in his newly purchased flat at Kasba the plaintiff is entitled to decree for eviction.
13. The learned Counsel for the appellant submits that under the West Bengal Premises Tenancy Act there is no provision that if the tenant has got any alternative accommodation elsewhere the landlord will be entitled to eviction. On the second count the learned Counsel for the appellant submits that the ground floor has been vacated by the tenant and naturally, the plaintiff/ landlord has got the said flat and his requirement has been satisfied.
14. The learned Counsel also submits that when the suit was filed the daughter of the landlord was a minor but by now she has become major and she has got married and in that view of the matter the requirement of the daughter also goes and the plaintiff is not entitled to eviction.
15. The learned Counsel submits that the learned Appellate Court below when making trial on evidence should have considered the amount of electricity bills inasmuch as the bills for electricity on the ground floor will ex facie show that the tenant is not there and he has left the premises.
16. The learned Counsel further submitted that this was not an open remand, this remand order was passed by this Court on four specific grounds and all the grounds have not been considered properly in the light of the evidence adduced. The learned Counsel relies on a decision reported in AIR 1979 SC 272 (Mst. Bega Begum and Ors. v. Abdul Ahad Khan). The learned Counsel submits that in this judgment the Hon'ble Apex Court has clarified the term 'reasonable requirement'. The learned Counsel relied "on the observations made in paragraphs 12, 13A and 27 of this judgment. For the purpose of convenience of discussions the aforementioned paragraphs are quoted hereinbelow:
"12. Another neighbour of the plaintiffs P.W. Yash Paul states that the plaintiffs say that they will start a hotel in the suit property. He further deposes that there is little work in the shop of the plaintiffs, and, therefore, they want to start a hotel. P.W. Ghulam Mohd, who is the brother-in-law of P.W. Pir Ali Mohd, father of the plaintiffs and was looking after his children on the death of P.W. Pir Ali Mohd, has also stated that the plaintiffs want to start business in the shape of a hotel in the house and they also want to run the shop. It is, therefore, proved by the evidence discussed above (1) that the plaintiffs required the house for their personal necessity in order to augment their income, (2) that as their income from the Boot shop is very small and they are not able to maintain themselves, so they want to run the hotel business in the suit premises. The High Court has not at all discussed this part of the evidence of the plaintiffs, but at the same time being impressed by the fact that the need of the plaintiffs was genuine the High Court gave a finding that the plaintiffs had a strong desire to occupy the house and use it for commercial purposes. Thereafter the High Court appears to have lost itself in wilderness by entering into a hair splitting distinction between desire and need. Here the High Court has misdirected itself. If the plaintiffs had proved that their necessity was both genuine and reasonable, that the present premises which belonged to them were required for augmenting their income as the income so far received by them was not sufficient for them to make the two ends meet, there could be no question of a mere desire, but it is a case of real requirement or genuine need. In fact the irresistible inference which could be drawn from the facts is that the plaintiffs had a pressing necessity of occupying the premises for the purposes of conducting hotel business so as to supplement their income and maintain themselves properly. The Act is a piece of social legislation aimed at easing the problem of accommodation, protecting the tenants from evictions inspired by profit hunting motives and providing certain safeguards for the tenants and saving them from great expense, inconvenience and trouble. But the Act does not completely overlook the interest of the landlord and has under certain conditions granted a clear right to the landlord to seek eviction on proof of the grounds mentioned in Section 11 of the Act. Thus, the Act appears to have struck a just balance between the genuine need of the landlord on the one hand and great inconvenience and trouble of the tenants on the other. It was also not disputed that the defendants had taken the property on lease only for a period of 10 years and now they have been in possession of the same for over 30 years. If the plaintiffs found that their present business had become dull and was not yielding sufficient income to maintain themselves and, therefore, it was necessary to occupy the house so as to run a hotel business, it cannot by any stretch of imagination be said that the plaintiffs had merely a desire rather than a bona fide need for evicting the tenants. We, therefore, disagree with the finding of the High Court that the plaintiffs had not proved that they had any bona fide need for occupation of the building in dispute.
13. Moreover, Section 11(1)(h) of the Act uses the words 'reasonable requirement' which undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire as the High Court has done in this case. It seems to us that the, connotation of the term 'need' or 'requirement' should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specific grounds. This appears to us to be the general scheme of all the Rent Control Acts, prevalent in other States in the country. This Court has considered the import of the word 'requirement' and pointed out that it merely connotes that there should be an element of need.
27. Before closing the judgment we would like to observe that normally this Court does not interfere with concurrent findings of facts but as the High Court as also the Trial Court have made a legally wrong approach to this case and have committed a substantial and patent error of law in interpreting the scope and ambit of the words 'reasonable requirement' and 'own possession' appearing in Section 11(1)(h) of the Act and have thus misapplied the law and overlooked some of the essential features of the evidence as discussed by us we had to enter into the merits of the case in order to prevent grave and substantial injustice being done to the appellant."
17. The learned Counsel also submitted that in this judgment the Hon'ble Apex Court in paragraph 27 has observed also that normally the Supreme Court does not interfere with concurrent findings of facts but as the High Court as also the Trial Court have made a legally wrong approach to the instant case and have committed a substantial and patent error of law in interpreting the words 'reasonable requirement' ,and 'own possession', the Supreme Court had to enter into the findings of the lower Court.
18. The learned Counsel for the appellant then relied on another judgment of the Hon'ble Apex Court and submits that in this judgment the Hon'ble Apex Court interpreted the words 'bona fide need' or 'genuine need'. The learned Counsel laid stress on the observations made in paragraphs 12 & 13 of this judgment reported in AIR 1999 SC 2507 (Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta) which are quoted hereinbelow :
"12. A perusal of Section 14 of the Act shows that the law has imposed restrictions on the recovery of possession of any premises by landlord from a tenant notwithstanding any law or contract to the contrary. However, an order for recovery of possession is permissible on one or more of the specified grounds. One such ground is the premises let for residential purposes being required bona fide by the landlord for occupation as residence for himself or for any member of his family dependent on him. What is a bona fide requirement is not defined in the Act. The words 'need' and 'require' both denote a certain degree of want with a thrust within demanding fulfilment. 'Need' or 'requirement' qualified by word 'bona fide' or 'genuine' preceding as an adjective--is an expression often used in Rent Control Laws. 'Bona fide or genuine need' of the landlord or that the landlord 'genuinely requires' or 'requires bona fide' an accommodation for occupation by or use for himself is an accepted ground for eviction and such expression is often employed by Rent Control Legislation draftsman. The two expressions are interchangeable in practise and carry the same meaning.
13. Chambers 20th Century Dictionary defines bona fide to mean 'in good faith : genuine'. The word 'genuine' means 'natural : not spurious : real : pure : sincere. In Law Dictionary, Mozley and Whitley define bona fide to mean 'good faith, without fraud or deceit'. Thus the term bona fide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase 'required bona fide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The Judge of facts should place himself in the armchair of the landlord and then ask the question to himself--whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the Court is satisfied of the bona fide of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the Court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against."
19. The learned Counsel submits that requisition is not desire, requisition means genuine need. The learned Counsel submitted that in the instant case there is no bona fide requirement, it is merely a fanciful desire and the plaintiff/ respondent is not entitled to eviction of the defendant/tenant and the four points which were specified by the order of remand passed by this Court could not be properly dealt with or could not be dealt with in accordance with law by the lower Appellate Court.
20. The learned Counsel also relied on a decision of the Hon'ble Apex Court reported in 1970(1) SCC 558 (Chikkam Koreswara Rao v. Chikkam Subba Rao and Ors.) and the learned Counsel submitted that the married daughter has no requirement and naturally, the requirement given at the time of hearing of the suit is not the present day requirement and as such the appeal should be allowed.
21. On the views and/or findings given by the Appellate Court below on the order of remand, the learned Counsel for the respondent Mrs. Mukherjee submits that the Appellate Court below after the remand, in substance and in considering the Commissioner's report as well as the evidence on record came to a finding that the ground floor has not been vacated by the tenant and, the requirement of the landlord is still there.
22. Mrs. Mukherjee relied on a decision reported in AIR 1997 Cal. 363 (Bikash Ch. Ghosh v. Dilip Kr. Mukherjee). Mrs. Mukherjee laid stress on the observations made in paragraphs 8, 12 and 13 of this judgment which are quoted hereinbelow:
"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 or 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.
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 Section 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 Section 13(1)(ff) of the West Bengal Premises Tenancy Act, 1956, which does not prescribe 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-section (1) of Section 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 Section 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."
23. Mrs. Mukherjee submits that in this judgment the requirement of landlord is not a static feature, it is bound to differ from time to time.
24. Mrs. Mukherjee submits that the daughter of the landlord/ plaintiff is now married but she requires at least one room inasmuch as the married daughter, when comes to her paternal residence, she must get an accommodation.
25. The learned Counsel Mrs. Mukherjee then relied on a decision of the Hon'ble Apex Court reported in 2002(2) CHN 418 [Sital Prasad Chakraborty v. Usha Devi (Chatterjee)]. Mrs. Mukherjee submits that it is now a settled law and it has been referred to by the Hon'ble Single Judge of this High Court whereby the learned Single Judge of this High Court has observed that landlord is the best judge of his requirement. The learned Counsel relied on the observations made in paragraphs 4 and 8 of this judgment which are quoted hereinbelow :
"4. It has transpired from the record that at the time of admission, the learned Judges of the Division Bench did not specifically formulate the substantial question of law involved in the appeal. Therefore, after hearing the learned Advocate for the appellant and also after going through the judgment impugned, the following questions have been formulated as the substantial questions of law, for the purpose of hearing of the appeal:--
(i) Whether the decisions of the Courts below regarding the reasonable requirement of the plaintiff for the suit premises are based on irrelevant consideration, which is contrary to the evidence too ?
(ii) In the absence of a finding regarding suitability of any particular room on the 1st floor, for using the same as the chamber of a lawyer, can a finding to this effect be sustained ?
8. Now, the question is whether in a second appeal this Court can disturb the finding of fact of the First Appellate Court. In the case of Kulwant Kaur v. Gurdial Singh Mann(dead) by L.R.s and Ors., reported in AIR 2001 SC 1273, Raghunath G. Panhale(dead) by L.Rs. v. Chaganlal Surdarji & Co., reported in AIR 1999 SC 3864 and Hamida and Ors. v. Md. Khalil, reported in AIR 2001 SC 2282, the Apex Court dealt with the question whether the finding of the lower Appellate Court on facts can be altered or not in the second appeal by the High Court. It transpires from those reported decisions of the Apex Court that ordinarily it is not open to the High Court in second appeal to interfere with the finding of fact unless such a finding is based on conjectures, surmises or on some evidence not admissible in law. It has further been laid down that where a finding of fact stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court will be within its jurisdiction to deal with the issue, but in that event such a fact is required to be brought to light by the High Court exclusively and the judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice. Now, in the present case, as it has been seen the learned Court below completely went against the settled position of law that the alternative accommodation must be reasonably suitable, and if it is not so then mere availability of alternative accommodation will not be a ground to refuse a decree for eviction. That being so it can be said without hesitation that the judgment impugned smacks of perversity as it has failed to come to a decision on the basis of the settled position of law."
26. The learned Counsel also submits that in this judgment of this High Court it has been stated or clarified as to how far it is permissible to interfere in a concurrent finding of fact.
27. The learned Counsel for the respondents Mrs. Mukherjee further relied on a judgment of this Court reported in 2002(3) CLT 247 (Jagannath Trivedi and Ors. v. Nilima Dutta Gupta and Ors.).
28. The learned Counsel Mrs. Mukherjee then referred to the decision of the Hon'ble Apex Court reported in 2001(2) SCC 604 (Gaya Prasad v. Pradeep Srivastava). The learned Counsel submitted that delays in litigation process can't be burdened on the shoulder of the landlord. Mrs. Mukherjee relied on the observations made in paragraphs 17,18 & 19 of this judgment which are quoted hereinbelow :
"17. Considering all the aforesaid decisions, we are of the definite view that the subsequent events pleaded and highlighted by the appellant are too insufficient to overshadow the bona fide need concurrently found by the fact finding Courts.
18. We wish to add, as an epilogue, that this case can provide a catalytic agent for the High Courts to evolve some concrete schemes for winching to the fore similar long-pending matters, lying in torpidity at the bottom of the crammed list of pending cases in the High Courts after passing the initial orders, keeping the operative part of decrees in abeyance. It is worth considering whether a cell can be set up in each of such High Courts where the piles of backlog are a stirring problem, to pick out such cases to be brought to the notice of the Chief Justice of the High Court concerned so that he could take appropriate steps in the matter.
19. The above is not an advice, but only a suggestion. If any alternative suggestion would appear better the same can be resorted to. The time is running out for doing something to solve the problem which has already grown into monstrous form. If a citizen is told that once you resort to legal procedure for realisation of your urgent need you have to wait and wait for 23 to 30 years, what else is it if not to inevitably encourage and force him to resort to extra-legal measures for realising the required reliefs. A Republic, governed by rule of law, cannot afford to compel its citizens to resort to such extra-legal means which are very often contra-legal means with counterproductive results on the maintenance of law and order in the country."
29. Mrs. Mukherjee submits that the two Courts successively held that the landlord has not got reasonable requirement and is entitled to a decree for eviction.
30. Heard the learned Counsel for the parties, considered their respective submissions as well as the evidence on record, the Commissioner's report and the views or findings given by the Appellate Court below on the order of remand.
31. It appears from the Commissioner's report that the ground floor flat has not been vacated by the tenant. The learned Appellate Court below in its findings recorded that Mrs. K. Annapurami tendered herself as D.W. 6 and in cross-examination she said that "we did not surrender the tenancy of the ground floor flat of the suit house."
32. It also appears from the Commissioner's report that in the ground floor flat there are furnitures and other things.
33. The learned Appellate Court below relying on the Commissioner's report submits that it is clear from the report that the ground floor is not vacant when the landlord is in occupation of the same portion which he was occupied.
34. With respect I disagree with the submissions of the learned counsel for the appellant that since the daughter is married she does not require any accommodation is not correct proposition inasmuch as when the daughter and son-in-law comes to the residence of the daughter's paternal flat they don't find any accommodation there which actually they require. I also disagree with the submissions of the learned Counsel for the appellant that the learned Appellate Court below should have considered the electricity bills. It is clear from the evidence adduced by D.W. 6 that they do not reside in the ground floor flat regularly and they have to go out for some time and as such electricity bill is not too much. In my view, the learned Counsel for the appellant wrongly tried to re-appreciate the evidence which is not permissible.
35. The citations made by the learned Counsel for the appellant are not relevant in the context. The decision relied on by the learned Counsel for the appellant reported in AIR 1999 SC 2507 (supra) is not relevant in the context of the present case inasmuch as this decision referred to, is based upon the Rent Control Legislation of the other State and that is not pari materia with West Bengal Premises Tenancy Act.
36. In my view, the decision relied on by the learned Counsel for the appellant reported in AIR 1979 SC 272 (supra) is also not relevant inasmuch as the High Court can only interfere with the concurrent findings of facts when the judgment is perverse or based on surmises and conjectures. In the decision reported in 2000(5) SCC 652 (State of Rajasthan v. Harphool Singh) the Hon'ble Apex Court has observed that findings based on surmise and conjectures, perverse findings not based on legally acceptable evidence and which are patently contrary to law declared by Supreme Court, cannot have an immunity from any interference in the hands of the appellate authority.
37. At the same time, in the judgment of the Hon'ble Apex Court reported in 2001(8) SCC 584 (Mohan Singh v. Nehal Singh) and in the judgment reported in 2001(9) SCC 521 (Pakeerappa Rai v. Sithamma Hengshu) the Hon'ble Apex Court has observed that concurrent findings of fact, even if erroneous, no interference is called for by the High Court.
38. In this regard I am tempted to refer to another decision reported in 2001(3) SCC 179 (Santosh Hazari v. Purushottam Tiwari) and this is a judgment of the Hon'ble Apex Court constituted by three Hon'ble Judges including the Hon'ble the Chief Justice Dr. A.S. Anand (as His Lordship then was). In this judgment the entire legislative history of amendment of Section 100 in the Civil Procedure Code in the year 1976 has been discussed and in this judgment also the Hon'ble Apex Court has observed that unless the findings are totally perverse or based on surmise or conjectures or contrary to law, the High Court in second appeal under Section 100 of the Code of Civil Procedure can interfere with the said findings of fact of the Courts below.
39. Considering the entire aspect and considering the evidence on record, in my view, the landlord is entitled to accommodation reasonably and as such the landlord is entitled to eviction of the tenant/appellant herein.
40. The observations made by the Appellate Court below after the remand are accepted in its total perspective.
41. The plaintiff/respondent will get a decree of eviction of the tenant/ appellant herein in respect of the suit premises.
42. Let a decree be drawn up accordingly.
43. However, considering the entire situation, the tenant/ defendant is allowed three months' time to vacate the suit premises failing which the plaintiff/ landlord will be entitled to put the decree in execution.
44. In the facts and circumstances of the case the parties are to bear their own costs.
45. Let the Lower Court Records be sent down to the Courts below forthwith.
46. Urgent xerox certified copy, if applied for, will be given to the parties as expeditiously as possible.