Calcutta High Court (Appellete Side)
Amarendra Mishra vs Soumen Dutta on 18 February, 2019
1
1413 18.02.19 S.A.T. 488 of 2018
M/L
With
Ct. No. 02
CAN 9254 of 2018
akd
Amarendra Mishra
Vs.
Soumen Dutta
---------------
Mr. Haradhan Banerjee, Mr. Asit Kumar Bhattacharya.
... for the appellant.
Ms. Sananda Ganguli.
... for the respondent.
Admittedly the suit for eviction of a monthly tenant was filed, inter alia, on the ground of default, violation of clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act and reasonable requirement.
Both the Courts below held that the plaintiff/respondent reasonably required the suit premises for his own use and occupation and for the occupation of his family members and dependants.
It is not in dispute that the plaintiff/respondent could not prove the ground of addition and alteration having made by the defendant/appellant at the suit premises, but successfully proved the requirement pleaded in the plaint. The appellant took a plea before the Trial Court that during the pendency of the suit, the plaintiff/respondent had let out two rooms on the first and ground floor of the building, which showed that he had no genuine and honest requirement of the suit premises.
It appears from the findings of both the Courts below that the plaintiff's witness was cross-examined on the above issue. It was a categorical stand of the plaintiff that those rooms were let out prior to the induction of the tenant/appellant and the allegation that it was let out during the pendency of the suit, is unfounded and incorrect. The appellant could not produce any cogent evidence before the Trial Court in support of the aforesaid contention that letting out of 2 those rooms actually happened during the pendency of the suit.
Both the Courts below repelled the aforesaid defence taken by the appellant, and, therefore, we do not find any substance to take contrary view in the instant appeal.
The plaintiff/respondent has admittedly possessed two rooms, dining space, kitchen, bath and bathroom on the third floor of the premises and sought for eviction of the appellant, who is occupying three rooms, kitchen, bath and privy on the second floor.
Mr. Banerjee, learned Senior Advocate, appearing for the defendant/appellant, submits that the plaintiff/respondent is in fact residing permanently at Delhi and had no intention to come and reside at the suit premises situated in Kolkata. Such inspiration is drawn from the fact that the plaintiff is employed in a company at Delhi and the wife of the plaintiff is also employed therein. The daughter is also in service at Delhi and such facts emboldened Mr. Banerjee to submit that there is no intention to come back to Kolkata and reside here and, therefore, the suit should be dismissed for want of any requirement either real or reasonable.
It appears to us that the aforesaid plea was taken by the appellant before both the Courts below. The witness cited at the behest of the plaintiff categorically asserts that his company has got a project at Dankuni and offered him to look after such project. The said witness further stated that his wife has no objection to give up the job at Delhi and settle at Kolkata, so the daughter.
It transpires in course of the proceeding that the parents of the wife are also residing with them at Delhi and, therefore, forms part of the family. The plaintiff/respondent have also pressed the requirement of the suit premises for them being the 3 member of his family and dependants. Both the Courts below have held that the parents-in-law if residing with the plaintiff's family do form part of the family and, therefore, one room is required for their purpose.
The word "family" is not defined in the West Bengal Premises Tenancy Act, 1997 and in common parlance such definition of "family" cannot be squeezed or restricted to the spouse and the children. The Indian society always recognizes the concept of larger family, which includes various kith and kin including the parents and the parents-in- law. Any restrictive meaning to the word "family" shall unjust enrichment of the sentiments of the Indian Society. Even if the landlord having genuine requirement to cater the need for accommodation will not be entitled to get a decree on the ground of reasonable requirement. It is a categorical stand of the plaintiff/respondent that the parents-in-law are dependent upon him and since they are residing with him at Delhi, they also intend to reside at Kolkata, whose love for the motherland is always cherished by a person throughout his life. The eminent poets and authors of this country have written various books, columns and articles showing their affinity, lust, love and affection towards his motherland. If the person wants to come and reside at his motherland with the relatives and to depart the world therefrom, we do not think that the law stands as a deterrent to such pious and honest intention of a human being. We do not, therefore, find that the requirement for parents-in-law or that the plaintiff/respondent's wishes and intents to come back to Kolkata being his birth place shall be denied an accommodation in his own house.
A plea is taken by Mr. Banerjee that it is mandatory on the part of the Court to consider whether the partial eviction from the suit premises 4 can satisfy the requirement of the plaintiff/landlord. According to Mr. Banerjee, the statutory provision mandates the Court to consider the question of partial eviction and if it does fail to do so, it would be acting contrary to the legislative intent. Mr. Banerjee refers Section 6(3) of the West Bengal Premises Tenancy Act, 1997 to support his contention that the language employed therein makes it imperative on the Court to consider the partial eviction of the defendant from the suit premises and having not done so it is a fit case that the Second Appeal should be admitted. Before we proceed to deal with the points so urged, it would be profitable and relevant to quote such provision, which runs thus:
"6(3) Where the landlord requires the premises on the ground of building or rebuilding or addition or alteration or for his own occupation and the Civil Judge is of the opinion that such requirement may be substantially satisfied by ejecting the tenant or a sub-tenant from a part of the premises and allowing the tenant or the sub- tenant to continue in occupation of the rest of the premises, then, if the tenant or the sub-tenant agrees to such occupation, the Civil Judge shall pass a decree accordingly and fix the proportionate rent for the portion remaining in the occupation of the tenant or the sub-tenant. The rent so fixed shall be deemed to be the fair rent for the purposes of this Act. If the tenant does not agree, but the sub-tenant agrees, to such occupation, no decree or order for ejectment shall be passed against the sub-tenant who shall become, with effect from the date of the decree or order, a tenant directly holding under the landlord."
It is apparent from the reading of the said provision that such eventuality shall arise only and 5 only if the Court is of the opinion that the requirement pleaded by the plaintiff may be substantially satisfied by ejecting the tenant from a part of the premises.
The formation of opinion is sine qua non to the applicability of the said provision; otherwise the expression "the Civil Judge is of the opinion that such requirement may be substantially satisfied by ejecting the tenant or a sub-tenant from a part of the premises" shall become redundant or otiose. If the Court is satisfied that the entire suit premises is required to cater the need of the landlord, it is not obligatory on his part to seek for partial eviction. It is only when the Court finds that the requirement would stand satisfied if the tenant is partially evicted from the suit premises, then it becomes obligatory on the part of the Court to ask the tenant and seek his agreement on partial eviction and in the event the tenant refuses, the Court shall pass the eviction decree on the entire tenanted premises.
We had an occasion to consider the findings recorded by both the Courts below, where the requirements pleaded by the plaintiff have been considered. The Court of Appeal below found that the requirement of the plaintiff is more than the tenanted premises and, therefore, we do not find that there is any incongruity and infirmity in the aforesaid decision.
In such a scenario, non-observance of the provisions contained under Section 6(3) of the said Act is not fatal nor, in our opinion, the fundamental objects behind its incorporation requires such course of action. For example if the Court is of the opinion that one room shall satisfy the requirement of the plaintiff, when a suit is filed for eviction of a tenant of two rooms, Section 6(3) of the said Act makes it obligatory on the Court to ask the tenant whether he agrees for partial eviction. Certainly it cannot arise 6 when the Court found that the landlord requires five more rooms to satisfy his requirement. Last but not the least, Mr. Banerjee in his usual eloquence take us to another point that the plaintiff/respondent has failed to prove the service of statutory notice issued under Section 6(4) of the said Act. Mr. Banerjee is very much vocal in his submission that when the defendant categorically asserts that he did not receive such notice, the onus shifts on the landlord to prove the same by calling postal peon.
Both the Courts below repelled the aforesaid contention raised before it and found the due service of the statutory notice. Though we do not intend to enter into the concurrent findings of fact, yet to satisfy the conscience of the appellant, we feel to narrate certain facts, if unfurled from the respective stand of the parties and findings given by both the Courts below.
Admittedly the statutory notice was sent by registered post with acknowledgement due card upon the advocate of the defendant/appellant and the postal article containing the statutory notice returned with postal remark "refused". It is no gain saying that refusal tantamount to good service and a strong presumption is raised in favour of the sender that it is valid. Mere denial to receive notice is not sufficient to shift the onus on the plaintiff if he produces the proof of despatch and the return of the postal article containing such remark. The statutory presumption is drawn when the postal article is correctly addressed and prepaid, as sender loses control over the article the moment it is tendered to the postal authority. If the postal article in usual course is returned with postal remark "refused", it does not ipso facto render such service ineffective, invalid and illegal in the eye of law.
The defendant has not proved with cogent 7 evidence that at the material point of time he was not at the suit premises. He simply proceeded to say that he did not receive the notice and further proceeded to say that such notice is invalid, illegal and bad in the eye of law. Though the statutory presumption is rebuttal in nature, but mere denial does not tantamount to rebuttal as high degree of evidence is required in this context.
We thus do not find any infirmity or illegality in the concurrent finding of facts recorded by both the Courts below.
The appeal does not involve substantial questions of law. The appeal is thus dismissed. In view of dismissal of the appeal itself, the connected application has become infructuous and is accordingly dismissed.
After the dictation of the judgement in open Court Mr. Banerjee volunteers that his client may be permitted some time to vacate the suit premises. According to Mr. Banerjee, his client is septuagenarian and, therefore, the shifting of articles, fittings and furniture is a cumbersome process, which requires some time. Mr. Banerjee prays for six months time to vacate the suit premises.
Though the learned Advocate appearing for the respondent submits that she has no instruction in this regard, but considering the fact that the immediate eviction would cause greater hardship to the appellant, we permit him to vacate the premises on or before 31st August, 2019, subject, however, to filing an undertaking in the form of affidavit before this Court on or before 25th February, 2019. The appellant shall state in the said affidavit that he would vacate the suit premises on or before the said date and pay the amount equivalent to the contractual rent up to and including the month of August, 2019 within seven days for which it falls 8 due. The appellant shall also undertake not to sublet part of possession or assign either wholly or partly of the suit premises to any person nor shall cause damage or change the nature and character thereof. Let this matter be listed on 25th February, 2019 in the supplementary list under the heading "To Be Mentioned" for such limited purpose.
(AMRITA SINHA, J.) (HARISH TANDON, J.)