Calcutta High Court
Gobinda Kumar Saha vs Tapasi Debangshi on 21 March, 2002
Equivalent citations: (2002)2CALLT376(HC)
JUDGMENT N.C. Sil, J.
1. This appeal has been directed against the Judgment and decree dated 27.1.1994 passed by Sri T. K. Bhattacharya, learned Assistant District Judge, Sealdah in connection with Title Appeal No. 28 of 1992 setting aside the judgment and decree dated 30.1.1992 passed by Sri Shubhankar Bhattacharya, learned Munsif, Second Court, Sealdah in connection with Title Suit No. 90 of 1983.
2. The suit before the learned trial Court was for eviction of the tenant on several grounds including the ground of reasonable requirement and default. The trial Court was pleased to dismiss the suit but invoke the provisions of Section 17(4) of the West Bengal Premises Tenancy Act, 1956 and the defendant/tenant was protected from being evicted. The first appellate Court decreed the suit only on the ground of reasonable requirement.
3. At the time of admission of the appeal the Division Bench of this Court passed an order that the appeal will be heard on all the grounds. On perusal of the grounds taken in the memo of appeal it appears that the substantial questions of law involved in the appeal are as follows :
(1) whether the transfer of the suit property in the name of the plaintiff by way of gift is a legal gimmick only to attract the ground of reasonable requirement;
(2) whether the appellate Court misinterpreted the provisions of law and came to a wrong finding that the suit was maintainable although the suit was filed within the mischief period of three years from the date of the execution of the alleged deed of gift.
4. Mr. J. R. Chatterjee, the learned Advocate for the appellant/defendant/ tenant at the very outset of his submission has drawn my attention to some salient features of this case. In the instant case one Nafar made a deed of gift on 15.9.1981 in favour of his daughter Tapasi who is the plaintiff in the instant case. There are almost two identical flats in the house and one of the flats in possession of the appellant is the suit property. The suit was filed on 23.2.1983 that is within the mischief period of three years when the ground of reasonable requirement was not there, but subsequently by way of amendment the said ground was incorporated by the order of the Court dated 4.6.1986. Mr. Chatterjee has further pointed out to me that immediately after getting the gift from her father, the plaintiff inducted her donor-father in the other flat of the house where the donor and his wife had already been residing. And Nafar died during the pendency of the suit. It is pointed out further by Mr. Chatterjee that the trial Court did not enter into the merits on the ground of reasonable requirement and dismissed the said ground on some legal technicalities. But, at this stage Mr. Chatterjee in his usual frankness has withdrawn his argument that the suit was filed within the mischief period of three years from the date of the execution of the deed of gift and the provisions of Section 13(3) of the West Bengal Premises Tenancy Act has not been pressed by him any longer in view of the settled position of law.
5. Mr. Chatterjee has stressed much on the manner the deed of gift was executed by the father in favour of the daughter and immediately thereafter the suit was filed on various grounds including the ground of reasonable requirement putting her donor-father and others in one of the flats of the same house as tenants. According to Mr. Chatterjee this is nothing short of fraud on the statute. Mr. Chatterjee has then taken me through the judgment of the lower appellate Court appearing at page 24 of the paper book and tries to impress upon me that although the learned Judge has stated there that there are a lot of celebrated decisions on the question of reasonable requirement of the father to accommodate his only daughter, not a single judgment has been referred therein. Mr. Chatterjee has then argued before me that the lower appellate Court is conspicuously silent as regards the submissions made by the learned Advocates for the parties before him. It is also argued that the finding of the learned Judge as regards the reasonable requirement of the plaintiff is without any reason and as the trial Court had disposed of that ground only on legal technicalities, the first appellate Court should have remanded the case before the trial Court to determine the questions of reasonable requirement of the plaintiff. Mr. Chatterjee has then taken me through the amendment petition whereby the incorporation of the ground of reasonable requirement was sought for and subsequently it was allowed. It is pointed out by him that in the schedule of the said application it is stated that three rooms are not sufficient, but the first appellate Court observed that there is requirement of three rooms for the plaintiff. Schedule of the said application speaks of the requirement of six rooms and the plaintiff wanted to accommodate amongst others, her grandmother who had since died.
6. Mr. Chatterjee then argues before me that even this Court cannot decide the ground of reasonable requirement as the trial Court eschewed itself from deciding the same on some technical grounds for which this Court may remand the case before the trial Court for proper decision on the said issue. In this connection, Mr. Chatterjee has referred to the ratio decided in the case of Chetan Textiles, Bombay v. Jethabhai Hirji & Co. . In the said case it was held that the spirit behind Order 14 Rule 2 of the Civil Procedure Code is to have all issues decided at a time, except where an issue of law only arises as contemplated in the said Order and Rule. It was observed in that case that where in a suit (regarding money claim) issues are framed and the Court declines to decide the issue of jurisdiction as a preliminary issue and proceeds to record evidence on all the issues, it is not open to the Court in such case to give a finding only on the issue of jurisdiction and order return of plaint for presentation to the proper Court on the ground that the Court had no jurisdiction. Such a course is not permissible under the law in view of the mandate under Order 14 Rule 2 of the Code and in view of that clear mandate the High Court in appeal will not enter into the merits of the finding on the issue of jurisdiction especially when the issue of jurisdiction in the case was not an issue of law only. It was held in that case that the proper course for the High Court would be to set aside the order of the trial Court directing return of the plaint and remand the case to the trial Court for the purpose of recording findings on all the remaining issues and disposing of the suit thereafter according to law.
7. Mr. Chatterjee has also referred to the ratio decided in the case of Talati Kantilal Bhumabai v. Lalitaben, . In the said case the Gujarat High Court held that the Civil Judge (Senior Division), Godhra had jurisdiction to entertain and decide the suit filed by the respondent setting aside the finding of the learned Civil Judge that he had no jurisdiction to entertain the suit. Therefore, the plaint must be returned for presentation to the proper Court, the High Court remanded the suit to the trial Court with a direction to determine the other issues raised in the suit in the light of the evidence on record and in accordance with law. In such circumstances, the Hon'ble Apex Court was pleased to hold that in view of the fact that the entire evidence in the case had been recorded by the trial Court and considering that nine years have already passed over the decision of a preliminary point, the Hon'ble Supreme Court was of the opinion that it would be undesirable to dispose of that matter piecemeal and the interests of justice required premptorily that the trial Court should proceed to dispose of the suit on the issues which it had not then decided. From both the judgments referred to by Mr. Chatterjee I do not find anything that the appellate Court cannot dispose of any issue on the basis of the evidence on record.
8. Mr. Chatterjee has then referred to the ratio decided in the case of Sarin v. Ajit Kumar . The Hon'ble Supreme Court consisting of five Hon'ble Judges presided over by the Hon'ble Chief Justice was pleased to hold in that case that the object of Section 14(6) of the Delhi Rent Control Act is to prevent transfers by landlords as a device to enable the purchasers to evict the tenants from the premises let out to them. It was also observed that where the right to evict a tenant could not be claimed by a landlord under Section 14(1)(e) of the said Act, the legislature thought that the landlord should not be permitted to create such a right by adopting the device of transferring the premises to a purchaser who may be able to prove his own individual case under Section 14(1)(e) of that Act.
9. Section 14(1)(e) of Delhi Rent Control Act reads as under :-
"Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant :
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely :-
*** *** *** that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner hereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation."
10. Sub-section (6) of Section 14 of the said Act reads as under :-
"Where a landlord has acquired any premises by transfer, no application for the recovery of possession of such premises shall lie under Sub-section (1) on the ground specified in Clause (e) of the proviso thereto, unless a period of five years has elapsed from the date of the acquisition."
11. Now, in the context of the above provisions the Hon'ble Apex Court held in the case of Sarin (supra) that having regard to the object intended to be achieved by Section 14(6), it cannot be held that a person who acquired property by partition can fall within the scope of its provision. It was also observed that in cases falling under Section 14(6), a person who had no title to the premises and in that sense, was a stranger, becomes a landlord by virtue of the transfer. The position was entirely different in the case of a partition. It cannot, therefore, be held, the Hon'ble Supreme Court observed, that allotment of one parcel of property to an individual coparcener as a result of partition is an acquisition of the property by transfer by the coparcener within the meaning of Section 14(6).
12. In the said case short question of law involved for the determination of the Hon'ble Apex Court was whether the partition of the coparcenary property among the coparceners can be said to be "an acquisition by transfer" within the meaning of Section 14(6) of the Delhi Rent Control Act, 1958. The premises in question are a part of a bungalow situate at Racquet Court Road, Civil Lines, Delhi. The bungalow originally belonged to the joint Hindu family consisting of respondent No. 2, Mr. B. S. Poplai and his two sons, respondent No. 1 and Vinod Kumar Poplai. The three members of this undivided Hindu family partitioned their coparcenary property on May 17, 1962, and as a result of the said partition, the present premises fell to the share of respondent No. 1. The appellant V. N. Sarin had been inducted into the premises as a tenant by respondent No. 2 before partition at a monthly rental of Rs. 80. After respondent No. 1 got this property by partition, he applied to the Rent Controller for the eviction of the appellant on the ground that he required the premises bona fide for his own residence and that of his wife and children who are dependent on him. The Appellant contested the claim of respondent No. 1 on three grounds. He urged that respondent No. 1 was not his landlord inasmuch as he was not aware of the partition and did not know what it contained. He also urged that even if respondent No. 1 was his landlord, he did not require the premises bona fide; and so, the requirements of Section 14(1)(e) of the Act were not satisfied. The last contention raised by him was that if respondent No. 1 got the property in suit by partition, in law it meant that he had acquired the premises by transfer within the meaning of Section 14(6) of the Act and the provisions of the said section made the suit incompetent. In the background of this fact and the points raised by the parties before the Hon'ble Apex Court, the decision as mentioned above was made by he Hon'ble Apex Court.
13. Provisions of Section 13(1)(ff) and Sub-section (3A) of Section 13 of the West Bengal Premises Tenancy Act, 1956 are almost in similarity with the provisions of Section 14(1)(e) and Sub-section (6) of the Delhi Control Act. Sub-section (3A) of the West Bengal Premises Tenancy Act also speaks of acquiring interest in the premises by transfer. Here in the instant case the learned Advocate for the appellant has not pressed the ground of Section 13(3A) of the West Bengal Premises Tenancy Act. Besides, Mr. Chatterjee has accepted the settled principle of law in this regard that in course of the pendency of the suit the mischief period of three years as contemplated in Sub-section (3A) of the West Bengal Premises Tenancy Act had elapsed and this has actually prompted him to discard his claim under the said sub-section of the Act. It may be pointed out here that the question before Hon'ble Supreme Court in the case of Sarin (supra) was as regards the allotment of the suit premises by way of partition for which the Hon'ble Apex Court distinguished the question of acquiring title by way of transfer on one hand and the allotment of the suit premises on partition on the other, for, in case of partition among the coparceners question of acquiring title is absent as the coparceners always have title on the undivided joint property.
14. Mr. Chatterjee has then referred to the ratio decided in the case of Regional Manager and Anr. v. Pawan Kumar Dubey . It was held in that case that it is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts. I fail to understand as to how the principle decided in the said case is applicable to the instant case.
15. Mr. Asoke Banerjee, the learned Advocate appearing with Mr. Bidyut Kumar Roy, learned Advocate for the respondent/plaintiff/landlady has drawn my attention to changing conditions of the society in order to determine the need of the reasonable requirement of the plaintiff in the instant case. Mr. Banerjee argues before me that the term "fraud on statute" is something else which is not applicable to the instant case. As regards the case laws cited by the learned Advocate for the appellant Mr. Banerjee submits before me that his reply lies in the ratio decided in the case of Promotha Nath Mazumdar v. Nagendra Nath Mazumdar (33 CWN 1211). It was held in that case that when evidence has been fully placed before the trial Court and that Court has decided the several points involved, the Court of Appeal, if it cannot agree with the decisions, must come to proper findings of its own; it is entirely wrong and a shirking of duty to send the case back for a de novo trial with an exposition of points of law involved.
16. Mr. Banerjee has then taken me through paragraph 11(a) of the plaint. It is also pointed out by him that in the additional written statement the defendant/tenant did not take any ground of "fraud on statute". Mr. Banerjee has also argued before me that in the evidence, the plaintiff stated about the requirement of three rooms, but there is no cross-examination of that point except on suggestion.
17. Thus, it is clear that the appellant having not pressed his claim as regards the provisions of Section 13(3A) of the West Bengal Premises Tenancy Act and with the lapse of mischief period of three years in course of the pendency of the suit before the trial Court and also in view of the settled position of law in this regard and keeping the ratio decided by the Hon'ble Supreme Court in the case of Sarin (supra) I do not find any question of fraud on statute in the instant case. But the legal gimmick is very much patent in the instant case as it is evident from the facts and circumstances of the case. In the instant case the plaintiff's daughter has been living in a rented accommodation with her husband. There are several criminal litigations between the parties. The plaintiff appear to have taken several grounds for eviction of the tenant namely causing nuisance and annoyance, causing damage to the suit property, unauthorised addition and alteration made at the instance of the tenant, default in payment of rent and reasonable requirement as added ground subsequently by way of amendment but the trial Court awarded protection to the defendant/tenant under Section 17(4) of the West Bengal Premises Tenancy Act and the plaintiff had lost all those grounds except the ground of default. But before the lower appellate Court the appellant/landlord succeeded on the ground of reasonable requirement. The plaintiff is the only issue of her parents and so there was every probability that the plaintiff would succeed to the property left by her parents and naturally this question is posed as to what prompted the father of the plaintiff to make gift of the suit property in favour of her daughter. It has been urged by the learned Advocate for the appellant before me that this is nothing but a device made by the father of the plaintiff who was the original landlord of the defendant in order to make the ground of reasonable requirement successful.
18. On close scrutiny of the framework of the West Bengal Premises Tenancy Act, 1956, Section 13 in the total gamut of the Act deals with the provisions for the protection of the tenant against eviction and to be more precise keeping the facts of the instant case in view, Sub-section (3A) of Section 13 of the Act deals with the protection of the tenant against the transferee/landlord. Although the facts and circumstances of the case insinuate the device taken by way of transferring the suit property through the deed of gift in favour of the only issue of the original landlord, the statute is conspicuously silent to combat to such situation and accordingly the landlord cannot be prevented under the provisions of West Bengal Premises Act from taking such device.
19. It appears from the judgment of the trial Court that on the ground of technicalities the trial Court refrained from considering the grounds of reasonable requirement. Thus, it was observed by the trial Court that the plaintiff cannot get any order of ejectment even if she proves the ground of reasonable requirement as the suit was filed within a period of three years from the date of the transfer of the suit property by her father by way of gift and subsequently incorporation of the ground of reasonable requirement under Section 13(ff) of West Bengal Premises Tenancy Act was not permissible under the prevailing law at that time. The lower appellate Court in considering the ground of reasonable requirement observed that it was immaterial if there was any necessity for such deed of gift to be executed by the father of the plaintiff in her favour as the plaintiff is the only daughter of her father. The lower appellate Court found six rooms and one thakurghar in the suit building out of which three rooms are in occupation of the tenant/defendant whereas the other three rooms are in occupation of the father of the plaintiff as tenant. The first appellate Court had also considered that the plaintiff has been residing with her husband and ailing mother-in-law and son in a tenanted accommodation. Thus, according to the lower appellate Court three rooms are required for the comfortable accommodation of the plaintiff.
20. Now, it appears that the ground of reasonable requirements of the plaintiff was incorporated with the plaint by way of amendment and in terms of the settled position at the moment such incorporation is in conformity with law.
21. Requirement of the plaintiff as stated in the schedule to the amendment application which was subsequently incorporated in the plaint is as regards of herself, her husband, one son, one whole-time maid servant, her parents and grand-mother. It is also stated that as the plaintiff is the only daughter of her old and ailing parents she is required to stay in the same house to look after them. And accordingly she requires one bed room for the use and occupation of herself and her husband, one room to be used as sitting-cum-drawing room for receiving visitors from various offices and friends and relatives of her husband, one room for use and occupation of the old parents of the plaintiff, one room for the use and occupation of the old grand-mother of the plaintiff and Thakurghar, one room for being used as study room for the son of the plaintiff, the other room for being used as dining room and the other room for accommodating the relatives of the plaintiff and her husband for their occasional visit and stay over night. It is a pointer to note that the parents of the plaintiff are living in another portion of the suit house, of course, technically as tenants of the plaintiff. It is not clear whether the plaintiff intended to take her parents into the suit room and in that case it is also not clear how the flat in the suit house under occupation of the parents of the plaintiff will be used. All these aspects were not taken into consideration by the lower appellate Court at the time of decreeing the suit on the ground of reasonable requirement.
22. In the instant case there is no finding of the trial Court on the reasonable requirement of the plaintiff as he had eschewed himself from doing the same on some technical grounds and the lower appellate Court did not go into the details of the reasonable requirement. In such circumstances even keeping the ratio decided in the case of Promotha Nath Mazumdar (supra) in view and the established principle of law that the appeal Court can dispose of any issue on the basis of the evidence on record, it seems to me justified to send the case back on remand to the trial Court to decide the ground of reasonable requirements made by the plaintiff on the basis of the evidence already on record for the reasons stated above. Accordingly, the appeal succeeds in part.
23. The appeal is, therefore, allowed on contest. The judgment and decree passed by both the Courts below are hereby set aside. The suit is remanded to the trial Court for determination only the ground of reasonable requirements made by the plaintiff on the basis of the evidence already on record after giving fresh opportunity to both the parties to make their respective submissions. The trial Court is further directed to dispose of the suit within two months from the date of receipt of the L.C.R. and copy of this judgment.
There shall be no order as to costs. The L.C.Rs. be sent down to the lower Courts forthwith along with copy of judgment.