Calcutta High Court (Appellete Side)
Smt. Dolly Basu & Ors vs Sri Prabir Ghosh on 3 May, 2012
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Mr. Justice Tarun Kumar Gupta
S. A. No.67 of 2008
C.A.N. No.3512 of 2011
Smt. Dolly Basu & Ors.
Versus
Sri Prabir Ghosh
For the appellants: Mr. S. P. Roychowdhury, Sr. Advocate
Mr. Mrityunjoy Das Majumder
For the respondent: Mr. Bhaskar Ghosh, Sr. Advocate
Mr. Rajat Dutta Judgement on: 3rd May, 2012 Tarun Kumar Gupta, J.:-
This second appeal is directed against the judgment and decree dated 30th June, 2007 passed by the learned Additional District Judge, 3rd Court, Alipore in Title Appeal No.107 of 2006, affirming the judgment and decree of eviction dated 28th February, 2006, passed by the learned Civil Judge (Junior Division) 5th Court, Alipore in Title Suit No.85 of 2004.
The respondent / plaintiff filed the said suit for ejectment, alleging that the defendant being a tenant under the plaintiff in respect of the ground floor suit flat 2 with a garage and a mezzanine floor room as described in the schedule of the plaint was guilty of causing damages to the suit property. It is further case that the plaintiff being a chartered accountant has started a chartered accountant firm under the name and style of "Prabir Ghosh & Co., chartered accountants" with effect from 1994 after retiring from service. The plaintiff along with his family members has also a business under the name and style of "M/s. Southend Investment & Finance Company Private Limited". Though plaintiff is in occupation of second floor and third floor of the suit building but for smooth and effective running of business of said chartered accountant firm, plaintiff reasonably requires the suit premises which was situated in the ground floor. The first floor is also tenanted. As plaintiff has no other reasonably suitable accommodation elsewhere, plaintiff has filed this suit for ejectment after serving necessary notice.
The defendant contested the suit by filing a written statement denying material allegations of the plaint and contending, inter alia, that present accommodation of the plaintiff was more than sufficient for running his business and that plaintiff does not reasonably require the suit premises for the alleged purpose of business.
Issues were framed and both sides adduced evidence both oral and documentary. After contested hearing, learned Trial Court granted a decree of 3 ejectment only on the ground of reasonable requirement of the entire suit premises by the plaintiff for running his chartered accountant firm. Learned Lower Appellate Court also concurred to the aforesaid findings of learned Trial Court and accordingly, dismissed the appeal.
At the instance of the defendant-tenant this appeal has been admitted on the following substantial questions of law:-
(I) Whether the learned Courts below committed substantial error of law in passing a decree for eviction on the ground of reasonable requirement for the purpose of carrying on profession of Chartered Accountant of the respondent simply on the ground that such office must be situated on the ground floor of the property;
(II) Whether the learned Court of appeal below committed substantial error of law in overlooking the fact that a Chartered Accountancy Firm can easily continue in a second floor of a building which consists of four rooms, bath, privy etc., when apart form those four rooms the plaintiff is in occupation of further four rooms and his family consists of himself, his wife and one unmarried daughter, who is staying outside Calcutta. 4
During hearing of the second appeal, the appellant / defendant filed an application being CAN No.3512 of 2011, praying for reception of additional evidence under Order XLI Rule 27 of the Code of Civil Procedure. In the said application, the defendant has tried to bring on record the certified copy of deed of conveyance being Annexure - A of said application as an additional evidence to show that during pendency of this second appeal the plaintiff-landlord sold out entire first floor to the tenant in occupation of the same.
In this ejectment suit the main point in issue was whether the plaintiff- owner-landlord reasonably required the ground floor suit premises for running his chartered accountant firm. Admittedly, it was the choice of the landlord as to against which of the tenants he will bring a suit for eviction on the ground of reasonable requirement. Apart from that plaintiff tried to make out a case that ground floor will be convenient for smooth running of his chartered accountant firm which is being run presently in one of his rooms in the second floor. As such, from the case as made out in the plaint, it was apparent that the plaintiff-landlord preferred ground floor for running his chartered accountant firm. Furthermore, it is not the case of the petitioner / defendant that the plaintiff-landlord got possession of the first floor tenanted premises from the earlier tenant and then sold out the same to a third party. Selling out of tenanted portion of the first floor to the tenant in occupation is in no 5 way connected with the main issue of this case and accordingly I reject this application being irrelevant.
Mr. S. P. Roychowdhury, learned senior advocate for the appellant / tenant submits that admittedly plaintiff-landlord was in occupation of entire second floor and third floor each having four rooms several verandas, several bath-cum- privy and a kitchen and that said accommodation of the plaintiff was more than sufficient not only for residing and running his family business but also for running his newly founded chartered accountant firm. In this connection he drew the attention of this Court to the report of the Advocate Commissioner which was marked as an exhibit in said suit.
Mr. Roychowdhury further submits that learned courts below failed to take note of any element of need in the alleged requirement of the plaintiff-landlord and that as per learned Courts below, plaintiff required the ground floor suit premises for convenience. According to Mr. Roychowdhury, it was nothing but a mere desire or wish of the landlord having no element of need and accordingly, learned Courts below committed substantial error of law by allowing a decree for ejectment on the basis of said alleged requirement of the landlord. In support of his contention, he has referred several case laws namely AIR 1979 S page 272 (Mst. Bega Begum and 6 others vs. Abdul Ahad Khan (dead) L.R.s, and others, (1981) 3 SCC page 103 (Hasmat Rai and another vs. Raghunath Prasad, (2001) 3 SCC page 179 (Santosh Hazari Vs. Purushottam Tiwari (deceased) by LRs.
Mr. Roychowdhury further submits that the learned Courts below did not discuss as to whether alleged requirement of the plaintiff-landlord would be satisfied by partial eviction of the defendant-tenant from the suit premises and that mandatory provisions of sub-section 4 of Section 13 of the West Bengal Premises Tenancy Act, 1956 (henceforth to be referred the Act of 1956) was not complied. In this connection he has also referred a case law reported in 72 CWN page 393 (Monoharlal Mehta vs. R. M. Pandey).
Mr. Bhaskar Ghosh, learned senior counsel for the respondent/landlord, on the other hand, submits that learned Courts below came to concurrent findings of fact that the plaintiff-landlord's requirement of the suit premises in the ground floor for being used as his chartered accountant firm was genuine and that he had no other reasonably suitable accommodation elsewhere and hence the judgment of eviction does not call for any interference by this Court. He further submits that the need of the landlord need not be dire necessity and that the Court has to see whether the requirement is reasonable or not. In support of his contention he has referred several 7 case laws reported in 1996 (5) SCC page 353 (Prativa Devi (Smt.) Vs. T. V. Krishnan, 1999 (6) SCC page 222 (Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta), 2005 (8) SCC 252 (Sait Nagjee Purushotham & Co. Ltd. vs. Vimalabai Prabhulal and others), 2008(2) CLJ 269 (Smt. Anna Purna Shaw Vs. Sri Ananta Roy and others) and 2010 (1) SCC 503 (Uday Shankar Upadhyay and others Vs. Naveen Maheshwari).
The Conditions necessary for obtaining a decree of eviction under Clause (ff) of Section 13(1) of the West Bengal Premises Tenancy Act, 1956 (henceforth to be referred as Act of 1956) are as follows:-
(1) That the landlord is the owner of the suit premises;
(2) That the suit premises is reasonably required by the landlord for his or
his family members' use and occupation;
(3) That the landlord is not in possession of any other reasonably suitable
accommodation elsewhere.
These are three separate facts which have to be pleaded and proved. 8 The expression "reasonably required" in Clause (ff) of said Act of 1956 has not, however, been defined in the Act. According to the Oxford English Dictionary (XI Edition) "reasonable" means fair and sensible; able to reason logically; as much as is appropriate or fair.
According to Webster third new international dictionary "reasonable" means "being in agreement with right thinking or right judgment; not conflicting with reason; not absurd; not ridiculous.
However, the term "reasonable" came up for interpretation before Hon'ble Apex Court as well as before this Court on a number of occasions. The observations of the Hon'ble Courts in this regard may be summed up as follows:-
(i) There must be an element of need on the part of the owner
landlord;
(ii) Said element of need is something more than mere desire but
much less than the absolute necessity;
(iii) The connotation of the term "need or requirement" should not be artificially extended nor its language so unduly stressed or 9 strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction on that ground.
(iv) No straight jacket formula can be laid down to examine the reasonableness of the need of the landlord.
(v) It varies from case to case depending upon the standard of living as well as social customs and status of the landlord.
The case laws referred by learned counsels of both sides on the point of elaboration of the term "reasonably required" laid down those principles as stated above though not necessarily in the same language. As such, I do not find any necessity to discuss those referred case laws on this issue with any further elaboration.
There can be no denial that whether the requirement of the landlord of the suit premises was reasonable or not is a finding of fact. The Court of Second Appeal is not the third Court of findings of facts. It is now a settled principle of law that the Court of Second Appeal while exercising jurisdiction under Section 100 of the Code of Civil Procedure will not interfere to a finding of fact even if it was wrong. This is more so when there is a concurrent findings of fact by Courts below. However, the Court of Second Appeal can interfere to said findings of fact only when it can be 10 established that said findings of fact was based on no evidence, or based on inadmissible evidence or extraneous matters or was against settled principles of law thereby making the judgment perverse.
The following facts emerged from the evidence on record, both oral and documentary:-
(1) The suit house is a four storeyed building.
(2) The plaintiff owner landlord is in possession of second floor and third floor having four rooms, bath, privy, kitchen and verandahs in each floor.
(3) The first floor was in occupation of another tenant to whom the landlord sold out said portion during pendency of this case.
(4) Entire ground floor together with one mezzanine floor room was the tenanted suit premises under occupation of the appellant /tenant. (5) The plaintiff being a chartered accountant started a chartered accountant firm in the name and style "Prabir Ghosh and Company" since his retirement from service in May, 1994.11
(6) Plaintiff with his family members also run a business under the name and style "M/s. South End Investment and Finance Company Private Limited".
(7) The plaintiff uses a portion of second floor for running his chartered accountant firm as well as his family business and uses rest portion of second floor and entire third floor for residential purpose.
(8) There is no facility of lift in the suit building.
The plaintiff has claimed the suit premises situated in the ground floor on the grounds that his family privacy is disturbed for coming of persons to his office in connection with business and that it was not also possible for many of the clients to climb second floor through stairs and that shifting of plaintiff's office in the ground floor will save plaintiff from harassment as stated above and will also help the plaintiff to run his business more profitably as his business place would be easily accessible to his clients.
Mr. S. P. Roychowdhury, learned senior counsel for the appellant tenants has drawn the attention of this Court to the report of the learned Advocate Commissioner to show that plaintiff had four rooms, bath and privy, kitchen and verandas in both the floors under his occupation namely second floor and third floor and according to 12 him the space available to the plaintiff was more than sufficient for effective running of his chartered accountant firm and family business even after meeting his family requirements as plaintiff's family consists of himself, wife and one daughter. According to Mr. Roychowdhury the plaintiff landlord did not reasonably require the ground floor suit premises for running his chartered accountant firm and family business. In this connection Mr. Roychowdhury further submits that there are hundreds of instances wherefrom it can be shown that lawyers, doctors and chartered accountants are running their chamber / office from second floor or even from third floor of a building having no facility of lift. According to him, plaintiff's requirement was not at all genuine and that it was nothing but a pretext to evict the defendant tenant from the ground floor suit premises.
Mr. Bhaskar Ghosh, learned senior counsel for the respondent landlord, on the other hand, submits that landlord is the best judge as to select the place of business. He further submits that a tenant cannot dictate a landlord and advise him what he should do and what he should not do regarding running of his firm and business effectively. He further submits that it is well known that shops and businesses are conveniently conducted on the ground floor because customers can reach there easily.
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In this case the respondent landlord has prayed for eviction of the ground floor tenant mainly on the ground that his chartered accountant firm and family business can be run smoothly and more profitably from the ground floor as it was causing inconvenience to run the same from a second floor room. It was further case that it was causing violation of privacy of his family members as well as inconvenience to his clients for climbing stairs. It was further case of the landlord that if said chartered accountant firm and family business are shifted to the ground floor suit premises then it would be easier for attracting more clients as the place would be easily accessible to all. Under these circumstances, I find much force in the aforesaid submission of Mr. Ghosh. It is true that in Kolkata where there is acute paucity of space, professional persons namely doctors, lawyers or chartered accountants are sometimes compelled to run their chamber / office from rooms in second floor, third floor or even fourth floor having no facility of lift, but that does not mean that a landlord who has the available accommodation in the ground floor should be deprived from using the same as his office for running his chartered accountant firm and family business on that analogy. Both the Courts below came to a concurrent findings of fact that the requirement of landlord for using the ground floor suit premises for running his chartered accountant firm and family business was reasonable having no other reasonably suitable accommodation elsewhere. These findings were based on evidence and cannot be said to be perverse. Accordingly, I 14 find and hold that the respondent landlord reasonably required the ground floor for effective and smooth running of his chartered accountant firm and family business.
It came out from the evidence of the landlord (P.W.1) that he required three rooms, one toilet and one kitchen for effective and smooth running of his chartered accountant firm as well as family business. He has also spelt out in his evidence how to use those rooms. He required one room for his employees as well as for sitting of clients, one room for installing computer and other furniture and fittings and one room for his chamber. He also stated about requirement of one toilet and one kitchen for running said office in the ground floor. Learned Courts below approved said requirement of landlord and I do not find any perversity in said approval.
However, it came out that suit premises consisted of three rooms one kitchen, bath and privy and one mezzanine floor room and one garage. As such, it prima facie appears that the projected as well as established requirement of the landlord was little less than the entire tenanted premises. Under these facts and circumstances the Courts below should have stated in the judgments as to why partial eviction under Section 13(4) of the West Bengal Premises Tenancy Act of 1956 was not resorted to and why the decree of ejectment of entire suit premises was granted. The provision of Section 13(4) of the Act of 1956 is a mandatory one. At the time of passing a 15 decree of eviction on the ground of reasonable requirement the Court has first of all to see whether the requirement of the landlord can be satisfied by partial eviction of the tenant from the suit premises and if tenant was agreeable to said partial eviction then a decree of partial eviction was required to be passed after fixing rent to be paid by the tenant for the remaining portion to be kept under his occupation. However, the Court has to pass a decree for ejectment for entire suit premises when tenant was not agreeable to said partial eviction. I have already stated that learned Courts below did not spell out any reason as to why they passed a decree for ejectment on the ground of reasonable requirement in respect of entire suit premises when admittedly landlord's reasonable requirement can be made by partial eviction of the tenant from a portion of the suit premises namely three rooms, one bath and privy and one kitchen leaving the garage and one mezzanine floor room.
I am in complete agreement with Mr. Roychowdhury that on this score the impugned judgment of eviction of appellant tenants from the entire suit premises is not sustainable in law. As a result, the impugned judgment and decree of eviction are hereby set aside though I sustain the findings of learned Courts below that respondent landlord reasonably required three rooms, one bath and privy, and one kitchen out of the suit premises situated in the ground floor. 16
The matter is remanded back to the learned Lower Appellate Court for ascertaining as to whether appellant tenants were agreeable to the partial eviction or not. If they are agreeable to said partial eviction then learned Lower Appellate Court should pass a decree accordingly after fixing the proportionate rent to be paid by the tenants for the remaining portion under their occupation. However, if appellant tenants are not agreeable to said partial eviction, namely retaining the tenancy of garage and one mezzanine floor room, then in terms of Section 13 (4) of said Act of 1956 learned Lower Appellate Court should pass a decree of eviction in respect of entire suit premises as per law. The learned Lower Appellate Court shall give opportunity to the tenants to give evidence, if any, only on these two points viz. whether the tenants are agreeable to partial eviction and if so what will be the proportionate rent for remaining tenanted portion to be under occupation of the tenants. In case of adducing evidence by tenants an opportunity should be given to the landlord to adduce evidence only on the point of proportionate rent to be fixed. After hearing submissions of the parties and / or their learned counsels on these points only learned Lower Appellate Court should pass the decree of eviction be it partial or full. Learned Lower Appellate Court has to dispose of the matter within four weeks from the date of receipt of the Lower Court records along with a copy of this judgment. The parties should appear before learned Lower Appellate Court within two weeks from this date to receive further order.
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Office is directed to forward Lower Court records along with a copy of this judgment to learned Lower Appellate Court forthwith.
The respondent landlord is, however, at liberty to deposit special messenger cost for sending the case records within three working days from this date and on depositing of the same within the time frame as stated above, the office should send the Lower Court records along with a copy of this judgment by special messenger.
The appeal is accordingly allowed with the aforesaid observations but without costs.
Urgent photostat certified copy of this judgment be supplied to learned counsels of the parties, if applied for.
(Tarun Kumar Gupta, J.)