Calcutta High Court (Appellete Side)
Sri Hiralal Shaw vs Smt. Bharati Manna & Ors on 20 March, 2020
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Justice Bibek Chaudhuri
S.A. 314 of 2013
Sri Hiralal Shaw
Vs.
Smt. Bharati Manna & Ors.
For the Appellant : Mr. Bhaskar Ghosh, Sr. Adv.
Mr. Asit Baran Raut
Mr. Tuhin Subhra Raut
Ms. Ishita Raut
For the Respondents : Mr. Jahar Chakraborty
Mrs. Sabita Mukherjee
(Roy Chowdhury)
Heard on : 26.11.2019, 11.12.2019
07.01.2020 and 27.01.2020
Judgment on : 20.03.2020
Bibek Chaudhuri, J.:
Defendant of Ejectment Suit No.382 of 2003 is the appellant before this Court.
The respondents as plaintiffs filed the above mentioned Ejectment Suit against the appellant stating, inter alia, that the appellant was a tenant in respect of entire ground floor of a godown situated at premises No.134 Acharya Prafulla Chandra Road under 2 the respondents at a monthly rental of Rs.363/- payable according to Bengali calendar month. The tenanted portion in the suit premises is measuring about 1500 square feet while the respondents are in possession of 317 square feet in the said premises. The respondents have their ancestral business of selling paints and hardware materials. The main business of the respondents is under the name and style of "New Sri Durga Paints and Hardware" which is situated in a tenanted premises at Premises No.138/1, A.P.C. Road. The respondents have also another shop at premises No.123/1/1 A.P.C. Road under the name and style "Sri Durga Hardware". The respondents are tenants in respect of both the shops stated above. It is the further case of the respondents that the said shops remain open from 8 A.M. to 8 P.M. and after closing the business the respondents require to stay in the shop room for about two hours more for the purpose of arranging goods and settlement of accounts. The said business of the respondents has flourished and they have customers from even outside the State. The condition of the shop rooms are such that they have not even any space to sit or treat the customers. The respondents cannot accommodate their outside customers even for a night for want of accommodation in their shop rooms. The respondents reside at premises No.25/2, Bipradas Chatterjee Lane, P.S. Shibpur, Howrah. They regularly come to their shop rooms from their residence at Shibpur. However, they face genuine trouble and 3 difficulty while returning to their residence from their place of business because at such odd hours of night they very often do not get proper conveyance to return Shibpur. Therefore, the respondents have claimed at least three rooms for their shop, one room for their office-cum-accounts room and one residential flat consisting of at least two bed rooms, one dining space, one kitchen and one bath- cum-privy for the purpose of residence of any one of the plaintiffs and their family members who would reside there in order to maintain their family business by rotation and also for accommodating their out station customers for augmentation of their business. The respondents have also alleged that the defendant/appellant is a defaulter in payment of rent and he violated the provisions of Clauses
(m), (o) and (p) of Section 108 of the Transfer of Property Act. However, these grounds of eviction have not been pressed before this Court by the learned advocates for the parties at the time of argument advanced by them. It is stated by the respondents in the plaint that the suit for eviction was preceded by a notice to quit under Section 6(4) of the West Bengal Premises Tenancy Act, 1997 (hereafter described as the said Act). As the appellant failed to quit, vacate and deliver up peaceful possession of the suit property in compliance of the notice to quit, the plaintiff filed the suit for eviction.
The defendant/appellant contested the suit by filing written statement. In the written statement the appellant denied all material 4 allegations made out against him by the respondents in the plaint. Specific case of the appellant is that the plaintiffs /respondents have big factory of manufacturing paints spreading over land measuring about three Bighas at Sakrail, Howrah. The accommodation of the plaintiffs in their residential premises at Shibpur is also sufficient. Staying at Shibpur, the respondents can very well carry on their business at Sakrail and for such reason they do not reasonably require the suit godown. Under such facts, the appellant prayed for dismissal of the suit.
On the basis of the pleadings of the parties the learned trial Judge framed as many as nine issues. Witnesses on behalf of the parties led evidence and on due consideration of the evidence on record the learned trial Judge dismissed the suit on contest.
The present respondents filed an appeal being Title Appeal No.48 of 2010 before the learned Chief Judge, City Civil Court, Calcutta assailing the judgment and decree of dismissal passed by the learned Judge in the trial Court.
The said appeal was finally heard and disposed of by the learned Judge, 5th Bench, City Civil Court, Calcutta vide judgment and decree dated 10th October, 2012. The judgment and decree of dismissal passed by the learned trial Judge was set aside, appeal was allowed on contest and the decree in eviction was passed against the defendant/appellant in the said appeal.
5
The judgment and decree passed by the learned First Appellate Court in Title Appeal No.48 of 2010 is under challenge before this Court.
It appears from the order book of the instant appeal that the appeal was admitted by the Division Bench of this Court vide order dated 12th August, 2013 formulating the following substantial questions of law.
(i) Whether the judgment of the Lower Appellate Court was vitiated by non-compliance of the mandatory provisions of Sections 6 and 11 of the West Bengal Premises Tenancy Act, 1997?
(ii) Whether the Lower Appellate Court applied the correct legal principles in reversing the judgment of the Trial Court?
Subsequently before commencement of argument of the instant appeal this Court formulated the following additional substantial questions of law in accordance with the provisions of Section 100(5) of the Code of Civil Procedure vide Order dated 11th December, 2019.
(1) Whether the learned Judge in Lower Appellate Court erred in law in giving undue reliance on the need and requirement of the landlord and in this 6 process failed to appreciate specific case of the defendant/appellant.
(2) Whether the learned Judge in Lower Appellate Court committed substantial error of law in not holding that the plaintiffs/respondents avoided the prayer of building and rebuilding though it was absolutely necessary to meet the case of further requirement of the plaintiffs/respondents with the intention to deprive the defendant/appellant of the relief available to him under Section 11 of the West Bengal Premises Tenancy Act, 1997.
Now, the instant appeal is heard on the substantial questions of law so formulated by the Division Bench and this Court as referred to above.
Mr. Bhaskar Ghosh, learned senior advocate on behalf of the appellant at the outset submits that the suit property is a godown with tin shed. The defendant uses the suit property to keep iron bars and rods as he deals with the business of selling iron bars and rods. Admittedly, the plaintiffs carry on business of selling paints and 7 hardware under the name and style "New Sri Durga Paints and Hardware" from a shop situated at premises No.123/1/1 A.P.C. Road. They have another shop under the name and style of "Sri Durga Hardware" at premises No.138/1 A.P.C. Road. It is also not disputed that in respect of the said two shop rooms, the plaintiffs are tenants at a monthly rental of Rs.170/- and Rs.110/- respectively. The plaintiffs have made out a case of reasonable requirement claiming tenanted premises No.134/A A.P.C. Road on the following grounds:-
(i) Their shops are closed at about 8 P.M. They are to remain in the shops at least for another two hours for the purpose of accounting and arranging goods and materials. Therefore, they face hardship to reach their residential house at Shibpur for want of proper conveyance.
(ii) They face paucity of accommodation in the said shop rooms.
(iii) Moreover, they want to construct a residential flat at the tenanted premises evicting the defendant/tenant for being used as temporary accommodation of one of the plaintiffs for the purpose of business with his family members and also to accommodate outstation customers.
8Drawing my attention to the pleadings of the plaintiffs it is submitted by the learned senior counsel on behalf of the appellant that there is no pleading on behalf of the plaintiffs/respondents that the present business places in the above mentioned shop rooms was not suitable for the purpose of carrying on such business. There is also no case made out by the respondents that if the defendant /appellant is evicted from the suit godown, the plaintiffs would vacate the tenanted premises wherein they are carrying on their business. It is pointed out by Mr. Ghosh that the shop rooms of the respondents are situated at one of the most important commercial places in the city of Kolkata. Therefore, in the absence of such specific pleadings that they would vacate the shop rooms wherefrom they are now conducting their business or that they are incurring financial loss for running their business from the tenanted premises, the case of the plaintiffs for reasonable requirement cannot even be considered. Mr. Ghosh has also pointed out the evidence of P.W.1 wherefrom it is ascertained that the plaintiffs own two private cars. They commute from Shibpur by those private cars. Therefore, pleading of sufferings and facing hardship for want of proper public conveyance at dead hours of night while returning to their residence as made out by the respondents should also not be accepted in view of the specific evidence of P.W.1. Mr. Ghosh next draws my attention to the Commissioner's report and submits that the plaintiffs are in 9 possession of 300 square feet area in the suit godown. It comprises of two rooms. From the nature of user of the said two rooms as reflected from the Commissioner's report, it is ascertained that the said rooms are also used for the purpose of storing paints and hardware materials. Mr. Ghosh has repeatedly urged that the respondents never pleaded that the shop rooms where they are conducting business are insufficient. Moreover, the accommodation which is available in the suit godown is also not suitable for them and they will vacate their shop rooms if they get the decree for eviction against the appellant.
Mr. Ghosh further submits that the respondents very cleverly pleaded that they require the suit land over which the suit godown is situated to construct a flat to accommodate one of the family members of the plaintiffs and outside customers. This pleading encompasses a ground contained in Section 6(1)(c) of the said Act. The plaintiffs cleverly did not pray for eviction of the tenant on the ground of building and rebuilding because in such case, the plaintiffs/respondents would have to accommodate the appellant in respect of the same area of the premises which is being occupied by the tenant. According to Mr. Ghosh, a case under Section 6(1)(c) of the said Act cannot be converted to a case under Section 6(1)(d) of the Act and in such case pleadings of the plaintiff cannot be held to be bona fide and it must fail.
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Mr. Ghosh, learned Senior Counsel on behalf of the appellant submits that it is the duty of the First Appellate Court to reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice. However expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. First, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the 11 appellate Court is entitled to interfere with the finding of fact. The rule is - and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. The first appellate Court has an additional obligation cast on it by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless 12 such question of law be a substantial one. In support of his contention Mr. Ghosh relies upon the decision of the Hon'ble Supreme Court in the case of Santosh Hazari vs. Purushottam Tiwari (Deceased) By Lrs. reported in (2001) 3 SCC 179. Coming to the instant case, it is submitted by Mr. Ghosh that the learned trial judge dismissed the suit on contest on the basis of the evidence on record. The learned Judge in First Appellate Court, on the other hand allowed the appeal by setting aside the judgment and decree of dismissal of Ejectment Suit No.382 of 2003 and decreeing the suit on contest against the defendant/respondent on the ground of reasonable requirement. While reversing the judgment and decree of dismissal of the suit passed by the trial court, the learned Judge in First Appellate Court did not assign his own reason as to why the trial court's decision was set aside. On this score only the impugned judgment and decree is liable to be set aside.
Mr. Ghosh next refers to another decision of the Hon'ble Supreme Court in the case of M.S Zahed vs. K. Raghavan reported in (1999) 1 SCC 439. In the said report the Hon'ble Supreme Court considered the size of families of both the landlord and tenant, existing accommodation in their possession, their status and economic position and on consideration of all such circumstances, it was held that though landlord's requirement of additional space was bona fide, but there being no genuine existing need for the same, 13 requirement was considered not reasonable. In the instant case the respondent prayed for eviction of the appellant on the ground that if the tenant is evicted, the tenanted premises which is a godown can be used by the plaintiffs as an office room-cum-accounts section of the respondents. Secondly, the plaintiffs/respondents made out a case that if the suit premises be vacated, they can construct a small building over the suit premises to accommodate their outstation customers as well as in case of emergency, one of the respondents in rotation can stay there. It is pointed out by Mr. Ghosh that respondents never made out a case that their existing places of business at premises No.123/1/1 A.P.C Road and 138/1 A.P.C Road are not sufficient and they require suit premises for their business purpose. On the other hand, the respondents camouflaged their requirement for purpose of building and rebuilding to a case of reasonable requirement for their own use and occupation. In view of such circumstances, he invites this Court to hold that the requirement of the respondents is not bona fide and reasonable. If any of these requirements of the landlords/respondents is missing or both the elements are missing on the facts of the case, no decree for possession can be passed in favour of the landlords/respondents under the provision of Section 6(1)(d) of the West Bengal Premises Tenancy Act, 1997.
14
Mr. Ghosh also refers to a decision of the Hon'ble Supreme Court reported in (2007) 15 SCC 711 : Agasara Yallappa vs. D.S Sathyendra Rao, to establish that the court will not only consider reasonableness of the need of the landlords/respondents. Bona fide requirement of the landlord must pass the test of suitability. The tenanted premises, it is already stated, is a godown having tin shed. The said godown cannot be used as an office room or accounts section of the business of the respondents. If the respondents want to construct a building over the suit premises to meet their requirement, the case will fall within the preview of Section 6(1)(c) of the West Bengal Premises Tenancy Act, 1997 in the absence of the said case, the plaintiff's requirement should not be treated as bona fide. On the other hand, the framing of the suit clearly discloses the mala fide of the respondents.
It is also urged by Mr. Ghosh, learned Senior Counsel on behalf of the appellant that in order to meet the requirement of the respondents, it is necessary for them to make structural changes of the suit premises. Whenever the landlord wants to meet his requirement by structural changes, the case will be for building and rebuilding by the landlords and it is the duty of the landlords to provide the same accommodation to the tenant under Section 11 of the Said Act. On this score, Mr. Ghosh refers to a decision of the 15 Hon'ble Supreme Court in Shadi Singh vs. Rakha reported in (1992) 3 SCC 55.
Referring to a three Judges Bench decision in the case of Malpe Vishwanath Acharya & Ors. vs. State of Maharashtra & Anr. reported in (1998) 2 SCC 1, it is argued by Mr. Ghosh that the Court should always be alive to consider that rent control legislation should not be used to ensure disproportionately larger benefit to the landlords at the cost of the lawful tenants. Court must strike a balance and dispensation of justice under the Control Act must be based on the theory of "live and late live".
Mr. Ghosh concludes relying on a decision of Vishwamitra Ram Kumar vs. Vesta Time Company reported in (2007) 2 CHN 198 (SC) that under Section 18A of the West Bengal Premises Tenancy Act, 1956, the landlord in a case of eviction on the ground of building and rebuilding contained in Section 13(1)(f) of the said Act has the obligation to put the tenants back in possession of rooms in the reconstructed building that is an obligation attached to any decree for eviction that may be passed under Section 13(1)(f) of the said Act. Certainly, any attempt to defeat that obligation under Section 18A of the Act cannot be encouraged and should be put down with an iron hand. In other words, the landlord pinned down to his obligations under Section 18A of the Act and would not be allowed to extricate himself from it or delay the performance of his obligations by resort to 16 devious means. In the instant case, the landlords sought for eviction of the appellant on the ground of building and rebuilding under the camouflage of Section 6(1)(d) of the West Bengal Premises Tenancy Act, 1997. The learned First Appellate Court failed to appreciate the distinction between the said two provisions and allowed the appeal on misappreciation of evidence and wrong perception of the statutory provision.
Mr. Jahar Chakraborty, learned Counsel on behalf of the respondents, on the other hand, submits that the landlords as plaintiffs prayed for eviction of the defendant/appellant from the suit godown on the ground of reasonable requirement for their business and commercial purpose. Mr. Chakraborty draws my attention to the plaint and submits that the respondents never pleaded eviction of the appellant on the ground of reasonable requirement for their own use and occupation for residential purpose. In the plaint, it is not pleaded that the landlords' accommodation at Shibpur, Howrah is not reasonable, suitable and sufficient. They have adequate accommodation at Shibpur, Howrah for their residential purpose. Specific case of the plaintiffs/respondents is that they require the suit godown for commercial purposes as well as for making a temporary accommodation in the suit premises for temporary stay of one of the plaintiffs for their business purpose and also to accommodate some outstation customers of the respondents.
17
It is further pointed out by Mr. Chakraborty that from the evidence of the defendant, it is ascertained that the respondents possess two rooms in the suit premises. From the commissioner's report, it is ascertained that the measurement of the said two rooms are 5 ft. 2 inches X 13 ft. and 12 ft. 7 inches X 2 ft. 3 inches respectively. The learned Commissioner has also pointed out the mode and manner of user of the said two rooms under occupation of the respondents in the premises in suit. Both the rooms are full of containers of paints and hardware materials. The sizes of the said two rooms clearly shows that those rooms cannot be used except as godown for the business of the landlords.
According to Mr. Chakraborty it is undisputed that the landlords/respondents carry on business in two shop rooms situated at premises No.123/1/1 A.P.C Road and 138/1 A.P.C Road. Both the business places were locally inspected by the advocate commissioner during the trial of the suit and he submitted his report which was marked Exhibit-15 during trial of the said suit. From the commissioner's report the nature of the plaintiff's shops can be ascertained. Both the shops are full of materials of painting and hardware. There is even no table space to carry on business suitably in the said shop rooms. The employees under the respondents do not have any space to sit in the said two rooms. There are no windows in 18 the said two rooms. The plaintiffs/respondents thus carry on business in the said two rooms in most unhygienic and hazardous manner.
Mr. Chakraborty next submits that the plaintiffs/respondents specifically pleaded that they regularly reach their shops at about 8 am and return to their home after 10 pm at night. This fact has not been denied by the defendant/appellant. Thus, the respondents stay for about 15 hours daily in Kolkata for the purpose of their business. In order to prove the volume of the business and it is regularly expanding the respondents have filed the income tax returns of their business. It is further submitted by Mr. Chakraborty that the respondents stay regularly in their shops at Maniktala for about 15 hours. They do not have any space to take rest even for a while. They have no space to take their lunch seating in their shops. They have also pleaded that the outstation customers cannot be accommodated by them for want of space. In order to augment their business and to prepare one office room cum accounts room and a temporary accommodation over the suit premises, they reasonably require the suit godown. Mr. Chakraborty draws a line of difference between Section 6(1)(c) and 6(1)(d) of the West Bengal Premises Tenancy Act, 1997. In Clause (c) of Section 6(1) of the 1997 Act the legislature lays stress on the fact that building or rebuilding etc cannot be carried out without the premises being vacated. This condition is an important one and must be proved by the plaintiff while he seeks for a decree on 19 the ground of requirement for building and rebuilding purpose. Section 6(1)(c) permits the eviction of a tenant not only for the purpose of building or rebuilding but also for making substantial addition or alteration thereto. It is now established by plethora of decision that the plaintiff must prove that the premises is required by him for the purpose of building and rebuilding etc or substantial addition or alteration and his requirement in this respect must be bona fide. If in a case it is pleaded that the tenanted premises will crumble down and it is not possible for the landlord to keep the premises in habitable condition without building or rebuilding or substantial additional or alteration, he is entitled to get a decree for eviction under Section 6(1)(c) of the 1997 Act subject to the provision of Section 11 of the Act which lays down the provision of restoration of tenancy where decree for recovery of possession is passed under the said provision.
It is submitted by Mr. Chakraborty that the respondents have filed the suit for eviction of the defendant on the ground mentioned in Section 6(1)(d) of the 1997 Act. The respondents reasonably required the suit premises for their own use and occupation for commercial purpose. In the instant case, it is for the court to determine and decide whether the respondents reasonably require the suit premises for their business purpose or not. If the answer is yes, the plaintiffs are entitled to get a decree for eviction. It is immaterial to consider as to whether the plaintiffs will construct a building thereon after the 20 tenant being vacated. If the court finds that for commercial purpose the suit godown is necessary, the court will not hesitate to pass a decree against the defendant/tenant holding, inter alia, that for augmentation of the respondent's business and for commercial purpose they reasonably require the suit godown.
In support of his contention Mr. Chakraborty refers to a decision of the Hon'ble Supreme Court in the case of Smt. Prativa Devi vs. T.V. Krishnan reported in (1996) 5 SCC 353. In the said report it is held by the Hon'ble Supreme Court that the landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own. Mr. Chakraborty specifically draws my attention to paragraph-3 of the said report where the Hon'ble Supreme Court was pleased to quote the following lines from an earlier decision in the case of Phiroze Bamanji Desai vs Chandrakant M. Patel & Ors reported in (1974) 3 SCR 267:-
"I think the true test is whether on an overall and reasonable view, it can be said that the landlord has suitable accommodation available for his use. In deciding this question one should certainly for record to the fact that the landlord has no legal right to other 21 accommodation, but that is only a factor and not the end of the matter."
Coming to the instant case it is submitted by Mr. Chakraborty that if the court finds that the requirement for the business of the respondents, suit premises is necessary, the court will pass decree for eviction against the appellant.
Mr. Chakraborty next refers to another decision of the Hon'ble Supreme Court in R.C. Tamrakar & Anr. vs. Nidi Lekha reported in (2001) 8 SCC 431 and submits that the tenant cannot direct or take the decision that the shop rooms from where the landlords are carrying on business as tenants are reasonable, suitable and sufficient cause the said shop rooms are situated at one of the most prime commercial places of the city of Kolkata. Law is well settled that it is for the landlord to decide and in what manner he should live and he is the best judge of his requirement. In deciding the question of bona fide requirement, it is unnecessary to make an endeavour as to how else landlord could have adjusted himself. Mr. Chakraborty also refers to another decision of the Hon'ble Supreme Court in the case of Mehmooda Gulshan vs. Javaid Russain Mungloo reported in AIR 2017 SC 1047 and submits that the question as to whether the landlord has genuine need is a matter of appreciation of evidence, and ones there is no need for finding of fact cannot be reopened. It is for 22 the landlord to decide to the best use of the premises and there is nothing wrong on the part of the landlord in making plans for a better living by doing business engaging her son. According to Mr. Chakraborty, the First Appellate Court is the final court of fact held on appreciation of evidence on record that landlords reasonably require the suit godown for their commercial purpose no perversity of such finding was allowed by the appellant. No substantial question of law on perversity of impugned judgment was also framed under such circumstances finding of fact cannot be reopened in the second appeal.
Thus, it is submitted by Mr. Chakraborty that there is no reason to interfere with the impugned judgment passed by the First Appellate Court.
In reply it is submitted by Mr. Ghosh that even if the case of the landlords is accepted, then it is found that they require the suit godown for commercial purpose. There is no pleading that they are going to shift their business from their shops situated at 123/1/1 A.P.C Road and 138/1 A.P.C Road to the suit godown. In the absence of such case, respondent's claim cannot be held to be bona fide.
Case of the plaintiffs/respondents on the ground of reasonable requirement is set forth in paragraph 6 onwards. From paragraph 6 it is ascertained that the address of the suit premises is 134/A, A.P.C Road. Suit premises consists of a structure measuring about 1817 23 sq.ft on a piece of land measuring about 2 cottahs 8 chittaks and 17 sq.ft. The appellant is in possession of 1500 sq.ft out of the said 1817 sq.ft and the remaining 317 sq.ft is under possession of the respondents. It is also found from paragraph 11 of the plaint that the respondents are carrying on business under the name and style of 'New Sree Durga Paints and Hardware' from a tenanted premises situated at premises No.123/1/1 A.P.C Road and another business under the name and style of 'Sree Durga hardware' from premises No.138/1 A.P.C Road. Then comes the main case of the plaintiffs/respondents as regards requirement of the suit premises where they pleaded, "accordingly the plaintiffs require at least three rooms for their shop, one room for office cum accounts room and one residential flat consisting of at least two bed rooms, one dining space, one kitchen and one bath cum privy" which is very much required for the purpose of residence of any of the plaintiffs and their family members who will reside there in order to maintain their business by rotation and also for accommodating their outstation customers and all the aforesaid basic requirement could be made by evicting the defendant".
In paragraph 9 of the plaint it is pleaded by the plaintiffs/respondents, "the plaintiffs are trying to come down and settled their two business, i.e, one 'New Sree Durga Paints and Hardware' and another 'See Durga Hardware' side by side from one 24 premises under the same roof/premises but for the sake of convenience, the plaintiffs also could not do so for dearth of accommodation. The business of the plaintiffs are now seriously affected for want of accommodation and the aforesaid businesses are the only source of income of the plaintiffs upon which the plaintiffs and their family members are dependents."
Statement made in paragraph 9 of the plaint was dealt with by the defendant in following words:-
"The statements as contained in paragraph 9 of the plaint are concocted, mala fide and untrue and denied. The plaintiffs have narrated a cock and bull story. The statement made in paragraph 10 of the plaint was denied by the defendant/appellant as incorrect and baseless.
Thus, it is clear from the written statement that the case of the plaintiffs/respondents on the ground of reasonable requirement was confronted by the defendant only by evasive denial. There is no specific denial in the pleading of the defendant in respect of the case of the respondents on the ground of reasonable requirement.
Thus from the pleadings of the respondents it is ascertained that the plaintiffs/respondents have made out a case of bona fide requirement of the suit premises for their commercial purpose on the grounds, inter alia, 25 (1) That they are facing inconvenience in running the business from two tenanted premises situated at premises No.123/1/1 A.P.C Road and 138/1 A.P.C Road. (2) They want the said two business run by them to be vitiated and accommodated under one roof.
(3) They do not have any office cum accounts room in the present shop rooms. Therefore, they want one office rum accounts room for their business.
(4) They want one residential flat to be constructed on the land upon which the suit premises is situated to accommodate one of the plaintiffs and family members to look after the said business on rotational basis and also to accommodate the outstation customers.
I have already stated that the respondents are in occupation of 317 sq. ft of room consisting of two rooms in the premises in the suit. The measurement of the said two rooms are 5 ft. 2 inch X 13 ft and 12 ft. 7 inch X 2 ft. 3 inch. The said two rooms cannot be used to run a shop or an office or for any other purpose whatsoever for which the respondents reasonably require the suit premises. It is important to note that the respondents did not seek eviction of the appellant claiming the suit premises for their residential purpose. According to them they are facing acute inconvenience to run their business from two tenanted premises and they want to shift their business under 26 one roof. It is important to note that for the purpose of shifting their business from the tenanted shop rooms, the respondents have not prayed for construction of any building in the suit premises. The suit premises is now used as godown of iron rod and iron bars with which the appellant is dealing.
It is trite that the landlord is to show that he has no other reasonable suitable accommodation. Such accommodation would of course include rented accommodation in as much as a person has a legal right to hold the rented accommodation from which he cannot be evicted by the landlord except by the provisions of the Act. But suitability of the rented accommodation must be judged by the physical sufficiency, comforts of accommodation and economic consideration.
From the commissioner's report (Exhibit-15) it is ascertained that the shop rooms wherefrom the respondents are carrying on business at present do not have any window. The painting materials and hardware items are practically dammed inside the said two shop rooms. There is even no space for the respondents and their employees to sit inside the said shop rooms. Under such circumstances, if the landlord wants to shift his two businesses under one roof in his own premises, such requirement cannot be said to be unreasonable or mala fide.
27
Leaving aside the claim of the landlord to construct a residential building in the suit premises for which the learned Senior Counsel for the defendant/appellant vehemently argued that the case made out by the plaintiffs/respondents falls under the provision of Section 6(1)(c) of the 1997 Act, the claim of the landlords to shift their business in the suit premises owned by them from tenanted shop rooms where they are facing scarcity of space, their claim cannot be said to be unreasonable, fanciful and noteworthy to be considered.
The learned Counsels for both the parties have relied on the decision of the Hon'ble Supreme Court as well as this Court. I have enumerated principles led down in the said decisions cited by the learned Counsel for both the parties. However, I do not find any of the said decisions relevant under the facts and circumstances of this case.
Requirement of landlord is undoubtedly a question of fact but reasonableness of requirement is a question of law which can of course be looked into the second appeal. Judging this case from the aforesaid perspective it is found that in the instant appeal the appellant has failed to raise any substantial question of law disputing the finding of the learned Judge in the First Appellate Court perverse on reasonableness of requirement of the respondents.
In fine, the respondents are running their business from two tenanted shop rooms. They have specifically pleaded that they require the suit premises to carry on their said two businesses under same 28 roof. From the commissioner's report it is found that the tenanted shop rooms are not sufficient to keep even the business materials in order. It is also a fact that landlords do not have any space even to sit inside the shop rooms. The employees of the respondents working in the shop rooms do not have any space even to sit for a while to take rest or to take food. There is no window in the said two shop rooms. Under such circumstances, if the suit premises would be available to the plaintiffs they can carry on their business more conveniently under the existing shed. For such purpose, building and rebuilding or substantial addition or alteration of the suit premises are not necessary.
For the reasons stated above I hold that the learned Judge in First Appellate Court on proper appreciation of evidence on record correctly decided the appeal in favour of the respondents and no substantial question of law is involved in the instant appeal.
As a result the appeal fails.
The judgment and decree passed by the learned Judge in First Appellate Court in Title Appeal No.48 of 2010 is affirmed. The appeal be and the same is dismissed on contest, however without cost.
The defendant/appellant is directed to quit, vacate and deliver peaceful possession of the suit property within 60 days from the date of this judgment, failing which the plaintiffs/respondents are at liberty to put the decree drawn by the First Appellate Court in execution. 29
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Bibek Chaudhuri, J.)