Calcutta High Court
Pintu Tewari (Minor) And Ors. vs Ananta Narayan Saha on 17 February, 2004
Equivalent citations: 2004(3)CHN597
Author: Amitava Lala
Bench: Amitava Lala
JUDGMENT Amitava Lala, J.
1. This second appeal arises out of the judgment and decree dated 11th April, 2001 and 21st April, 2001 respectively passed by the learned Civil Judge (Senior Division), Kandi, Murshidabad in Title Appeal No. 64 of 1994. In the first appeal, the concerned Court was pleased to dismiss the appeal and affirmed the judgment and decree passed by the learned Court of first instance.
2. The learned Court of first instance ordered and decreed that the suit be decreed on contest without cost. The cause of decree in the suit is consideration of the Clauses, being (m), (o) and (p) under Section 108 of the Transfer of Property Act precisely Clause (o) therein. The cardinal principle for coming to an appropriate conclusion in respect of Clause (o) is that the leased out property can be used, but cannot be destructed or caused permanent injury.
3. The Appellate Court came to a conclusion that out of several grounds damage is one of the grounds for eviction which is falling under the provision of Section 13(b) of the West Bengal Premises Tenancy Act. It further appears that the defendant having his business in the suit premises of selling lock and key, knife, da and different iron materials and the defendant by fixing big nails and hooks in huge quantity as per his will in the suit premises damaged the suit room and was in continuing the same. Against the said specific allegation of damage by the plaintiff against the defendant in respect of the suit premises "I find in the written statement the defendant made no denial to that effect about damage of the suit premises alleged by the plaintiff in paragraph 2 of the suit plaint".
4. Thereafter, considering all the points, it was held that the learned Court below has rightly pointed out that the defence side made "no denial about the damage of the suit property so caused by the defendant by fixing nails, hooks and angles in different parts of the suit premises as per the plaint case and in the context, the plaintiff has been able to prove the same by evidence and which being not denied by the defendant and in cross-examination to the plaintiffs witness in this context the defendant also not able to form any opinion in the mind of the Court below by which the case of damage as proved by the plaintiff to be considered otherwise". In view of Section 108(o) of the Transfer of Property Act read with Section 13(1)(b)) of the West Bengal Premises Tenancy Act, the tenant cannot damage the building demolish or can commit any act, which is destructive or permanently injurious thereto. The Court found that the defendant not only fixed hooks and nails in the entire premises, but also in the door, which caused material deterioration of the suit premises and which, in fact, considered by the learned Court below, such damage, in fact, not denied by the defendant in the written statement against the plaint case so made out and "in my opinion" such fixation of nails and hooks in the suit property including the door of the same by the defendant diminishing the value of the suit premises economically or from utilisation aspect in future. By making the second appeal it has been admitted that two points were formulated by the Division Bench of this Court, which are given below :
(1) Whether the learned Munsif as well as the learned Lower Appellate Court wrongly come to the conclusion that by fixing some nails and/or hooks in the wall the suit premises has been damaged which should not be judged in case of evicting a businessman from the premises;
(2) Whether the learned Munsif as well as the learned Lower Appellate Court ought to have directed the appellant for repairing the premises if any damages caused for fixing the nails, hooks etc. Without passing the order of eviction against the appellant and the learned Lower Appellate Court also did not consider the same.
5. At the time of hearing of such appeal, Mr. Ashis Sanyal, learned Senior Counsel appearing in support of the appellant, contended before this Court that the cardinal principle for consideration is not the damages but whether such damages caused any material deterioration, which can be called destructive or permanently injurious thereto as per Clause (o) of Section 108 of the Transfer of Property Act.
6. Therefore, the questions, which are formulated hereunder, are substantial questions of law, but not the fact and the Second Appellate Court can go into such question. Mr. Sanyal cited various judgments on that score. He cited paras 6 and 11 of the judgment , Pitambardas Kalyanji Bakotiya v. Dattatraya Krishnaji; para 10 of 1988(1) CHN 180, Debakinandan Boobna v. Harasundar Sarkar; para 4 of 1988(2) CHN at page 1, Ratnamala Dasi v. Ratan Singh Bawa; , Ratanlal Bansilal v. Kishorilal Goenka and , Manmohan Das Shab v. Bishun Das.
7. In the first judgment, it was held that it is not every case done by the tenant, which would amount to breach of Section 108 of the Transfer of Property Act merely because some change or waste is suffered by the premises. In the second judgment, it was held that a combined reading of two Clauses would rather indicate that while the tenant cannot put up any construction by way of addition or alteration which is a permanent structure or which is destructive or permanently injurious to the tenanted premises, he can, within the limit of Clauses (o) and (p) make alterations thereto to suit his needs. In the third judgment, it was held that the tenant cannot make such construction, addition or alteration, as would suit his needs. In the last judgment, it was held that the expression "material alterations" in its ordinary meaning would mean important alterations, such as those which materially or substantially change the front or structure of the premises. It should be that such alterations in a given case might not cause damage to the premises or constitute a change in the purpose of the lease.
8. By citing these judgments, Mr. Sanyal wanted to say that although no denial in respect of the factual aspect of the matter is available, yet purported change amounting to damage or not is a question of law, which can be decided in the Second Appellate Court.
9. Mr. P. K. Dutta, learned Counsel appearing on behalf of the respondent vehemently opposed such submission. His point is that when two learned Courts factually found concurrently that there is a substantial damage, no scope is open to the Second Appellate Court to go into such factual aspect of the matter to reappraise the same. He cited several judgments on that score. By citing a decision , Pakeerappa Rai v. Seethamma Hengsu Deed, by LRS and Ors., he contended that erroneous findings of fact, even if grave in nature, could not be interfered with in the second appeal. He further cited a decision , Sashi Kanta Ruia v. Indo Minerals and Ors., with another matter to establish that when the Lower Appellate Court has recorded the findings on the material on record and arrived at a conclusion thereunder the same cannot be said to be erroneous in any manner. He further cited a judgment , M. G. Hegde and Ors. v. Vasudev D. Hegde. In the said judgment, the Hon'ble Supreme Court held that the prima facie perverse and error apparent on the face of record is not a 'Mantra' that can be employed to permit the Court to go in second appeal what the law enjoins it not to do. Thereafter, he has placed paragraphs , Santosh Harari v. Purushottam Tiwari (Dead) by LRS, to establish before this Court in what way the Second Appellate Court will proceed with the substantial question of law, which means substance, essential real, of sound worth, important or considerable. It is to be understood as something in contradistinction to technical, of no substance or consequence, or academic merely. He also cited 2003(2) CLT 613, Ramnath Mukherjee v. West Bengal Financial Corporation and Anr., to indicate that ratio of such judgment was already accepted by this Court.
10. In any event, I am not concerned at all in delivering the judgment, whether the concurrent findings of fact by two Courts will not be considered by the Second Appellate Court at all or not. I am only concerned whether any substantial question of law, in the present circumstances, is available for this Court for due consideration or not. The substantial question of law is the intention of the legislature to be taken into account by the Second Appellate Court. Is it available herein?
11. By reiterating the judgment (supra), Mr. Sanyal wanted to establish that a Full Bench of this High Court held that it is not the law that the tenant cannot make any addition or alteration to meet his urgent need. Unless damage and waste is proved, it cannot be said that there is any violation of Sections 108(m), (o) and (p) of the Transfer of Property Act. The burden of proof of such material is on the landlord. Therefore, the hole bored is so insignificant that it cannot be said to have led to any waste or damage. Mr. Dutta distinguished such judgment on the basis of the available facts and circumstances of this case and also on the basis of the judgments cited by him.
12. Mr. Sanyal further contended that Order 8 Rule 3 of the Code of Civil Procedure says that definitely denial is to be specific as per the Order 8 Rules 3 and 5, but it will transpire from Rule 3 that such denial is to be made specific except damages. Therefore, according to him it cannot be said that the damages will have to be denied specifically.
13. According to me, there is falacy of such submission of Mr. Sanyal. The interpretation of Rule 3 is that the damages cannot be defined but has to be ascertained. It has to be ascertained on the basis of the variable circumstances of the fact in question. Before that there is no scope of specific denial. Damage has to be ascertained to come to a conclusion in respect of Clause (o) of Section 108 of the said Act as to whether such damages is destructive or permanently injurious thereto or not even on the basis of the various factual analysis of the cases referred before this Court. The Full Bench judgment (supra) never said that even in case of material deterioration of the property by putting hole etc. will be ignored. Observation of the judgment is made only on the basis of the fact of that case.
14. Thus, when this Court finds that both the learned Courts below are categorical on the question of destructive or permanently injurious act under Clause (o) of Section 108 of the Transfer of Property Act and came to the conclusion that it will be diminishing the value of the suit property economically or from utilising aspect in future it is needless to say further that the damages are not substantially proved therein. Such being the question of fact, this Court should not interfere with the same.
15. In such circumstances, the second appeal stands dismissed. Interim order, if any, stands vacated. There will be no order as to costs. The decree will be drawn up expeditiously preferably by 19th March, 2004. It is recorded hereunder that the Lower Court records have not been brought to this Court. Therefore, no such direction is needed to be passed to send down such record. Proceedings, if any, will be completed by the Court below as early as possible preferably within a month from the date of receiving the copy of the judgment and order of this Court.
16. Xerox certified copy of this judgment, if applied for, shall be supplied to the applicant within 19th March, 2004.