Calcutta High Court
Jagannath Trivedi And Ors. vs Smt. Nilima Dutta Gupta on 1 March, 2002
Equivalent citations: (2002)3CALLT247(HC)
JUDGMENT A.K. Mitra, J.
1. This second appeal is in connection with Title Suit No. 286 of 1978. When admitting the appeal under Order 41, Rule 11 of the Code of Civil Procedure on 1.4.93 the Hon'ble Division Bench passed the following order:
"This appeal will be heard on the points of substantial question of law taken in the grounds of Memorandum of Appeal. Call for the records and issue usual notices."
2. It appears from the office records that on 2.11.95 the appeal was made ready as regards service. It also appears from office note dated 3.2.97 that one learned advocate entered appearance on 4.11.95 by filing vocalatnama. The said learned advocate appearing for the respondents also deposited usual paper book cost on 18.12.95. Lower Courts records arrived and examined but from the office note dated 17.10.2001, it appears that one postal receipt being exhibit No.7 was missing. On 18.10.2001, Justice Pranab Kumar Chattopadhyay passed an order directing the department to find out whether this postal receipt is made available or not and His Lordship also observed that hearing can be done on the basis of the available records devoid of this postal receipt whieh is exhibit No.7. This is a suit for eviction and the suit is a very old one and the appellant No. 1 is also very old and aged about more than 80 years. It was mentioned on behalf of the appellants praying for hearing of the appeal. On 8.12.2001 this Court started hearing the appeal, inasmuch as by this time also this exhibit No. 7 the postal receipt could not be made available.
3. In this appeal though in the trial Court and the First Appellate Court the defendant contested and in this second appeal also initially one learned advocate entered appearance by filing vocalatnama, but at the time of hearing (hearing continued on three dates) no-one appeared on behalf of the defendant respondent even at the second call and this Court was left with no option but to take up the matter for hearing in absence of the learned counsel for the respondent.
4. The second appeal has been preferred challenging the judgment and Order passed by the learned Additional District Judge, 11th Court Alipore passed in Title Appeal No. 99/1990 on 7.3.92 confirming the judgment and decree passed by the learned Munsif, Second Court at Aliporc in Title Suit No. 286/1978 on 21.9.89.
5. The original plaintiff Anuja Kumari Devi has expired by the time and present appellants Shri Jagannath Trivedi and others are her heirs and successors,
6. The original defendant Bidyut Kumar Dutta who was a tenant under the original plaintiff who has expired and the present respondent Smt. Nilima Dutta Gupta is her heir and successor.
7. This is suit for eviction filed by the plaintiff on the ground of default and reasonable requirement.
8. The case as made out by the plaintiff in the plaint is, inter alia, as follows:
9. The plaintiff is the owner of the suit premises No. 13A, Ballygunge Place East. The defendant was a monthly tenant under her in respect of the first floor of the said premises consisting of three rooms, bath room, privy and one stair case room and the kitchen at the second floor at a monthly rental of Rs. 220/- payable according to English calendar month. The plaintiff is residing at her native and ancestral house at Jemo within P.S. Kandi in the District of Murshidabad. Defendant defaulted in the payment of rent since February 1978. Plaintiff reasonably requires the suit premises for her own use and occupation and for her family members as she is not possessed of reasonably suitable accommodation elsewhere in Calcutta. Plaintiff's family consists of herself, her husband (the present appellant No. 1), eldest son having wife and two sons and the married younger son. Plaintiff has got six married daughters and 4 of them are residing at Calcutta and suburbs. Plaintiff's elder son who is in service is staying in a rented house at Calcutta. The plaintiff is a very old lady. She and her husband require frequent medical attendance by the specialist physician for their various ailments. Adequate medical help is not available at Kandi for which plaintiff is to suffer much. Plaintilf is to live in Calcutta for better medical treatment and for getting contact with her children and other relations. Notice for eviction was served on the defendant but the defendant did not vacate the suit premises and hence the suit was filed and the plaintiff prayed the decree for eviction of the defendant along with inesne profit etc.
10. Defendant contested the suit by filing written statement. In his written statement the defendant dented the allegations of default in payment of rent and he also denied the reasonable requirement of the plaintiff. The defendant stated that plaintiff's two sons being in service, one in Calcutta and they have got comfortable accommodation. The defendant also staled that the plaintiff has got alternative suitable accommodation in Calcutta and the contention of the plaintiff regarding ailment and medical treatment was denied by the defendant. The defendant further states that the plaintiff is permanently living in his own ancestral house and there are sufficient medical facilities at her native town Kandi. The defendant also challenged the legality, validity and sufficiency of ejectment notice and prayed for dismissal of the suit.
11. On the basis of the pleadings of both the parties the following issues were framed by the learned trial Judge :-
1) Is the suit maintainable?
2) Is the notice to quit legal, valid and sufficient? Was it duly served?
3) Is the defendant defaulter in payment of rent?
4) Is the plaintiff owner of the suit premises?
5) Does the plaintiff reasonably require the suit premises for her own use and occupation and her family members?
6) Docs the plaintiff have any other reasonably suitable accommodation etc?
7) Is the plaintiff entitled to get the decree as prayed for?
8) To what other relief, if any, is the plaintiff is entitled?
12. After hearing the parties the trial Court dismissed the suit on contest. The first appellate Court also dismissed the appeal of the plaintiff and affirmed the judgment and order of the learned trial Judge. However, both the Courts below in conclusion found against the plaintiff dismissed the suit as well as the appeal on the point of reasonable requirement of the plaintiff and his family members. Now the question would be at the outset as to whether the High Court in a second appeal under Section 100 of the Code of Civil Procedure should interfere or disturb the judgment of the trial Court or the first appellate Court. Normally, the answer would be in the negative. But if it appears to the Court that the basis of appreciation of evidence by the trial Court as the first appellate Court is wrong or there is glaring inconsistencies in the matter of appreciation of the evidence by the trial Court and the first appellate Court or ex-facie it appears that there is non-consideration of material evidence and the judgment are based on surmise and conjectures and there is perversity on the face of the judgment, should the Court shut its eyes only by saying that as ultimate finding of both the Courts below are concurrent the Courts should not interfere in the second appeal, the answer definitely would be here also in negative.
13. Hon'ble Supreme Court in its judgment (Kulwant Kaur and Ors. v. Gurdial Singh Mann (dead) by Lrs and Ors.) observed:-
"But the fact remains that scrutiny of evidence will be totally prohibited in the matter of exercise of jurisdiction in second appeal would be too broad a proposition and too rigid an interpretation of law not worthy of acceptance. If the concept of justice so warrants, we do not see any reason why such an exercise would be deprecated. This is however, without expression of any opinion pertaining to Section 100 of the Civil Procedure Code."
14. In this judgment the Hon'ble Supreme Court also observed :-
"Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo or such definite objection and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumption and conjectures and resultant, by there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice. Needless to say however, the perversity itself is a substantial question worth adjudication what is required is categorical finding on the part of the High Court as to perversity. In this context, be had to Section 103 of the Code which reads as below:-
"103. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,--
(a) which has not been determined by the lower appellate Court or both the Court of first instance and the lower appellate Court or
(b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100".
The requirements stand specified in Section 103 can nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial questions of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with".
15. In another judgment (Hafazat Hussain v. Abdul Majeed) the Hon'ble Supreme Court observed:-
"No doubt, it has been repeatedly pointed out by this Court that concurrent findings recorded by the trial Judge as well as the first appellate Judge on proper appreciation of the material on record should not be disturbed by the High Court, while exercising second appellate jurisdiction, but at the same time, it is not an absolute rule to be applied universally and invariably since the exception to the same also were often indicated with equal importance by this Court, and instances are innumerable where despite such need and necessity warranting such inference, if the second appellate Court mechanically declined to interfere the matter has been even relegated by this Court to the second appellate Court to properly deal with the claims of parties in the second appeal objectively keeping in view the parameters of consideration for interference under Section 100 of the Civil Procedure Code."
16. In the instant case, therefore, it is to be seen as to whether the judgment of both the Courts below suffer from serious infirmity non-consideration of the evidence on record or passed beyond the scope of the statutory jurisdiction or the same can be said to be perverse finding.
17. After hearing the learned counsel and on consideration of the evidence on records as well as the judgment of both the Courts below, I am of the opinion that the following points can be formulated as substantial questions of law which are to be decided in this second appeal in spite of the findings of both the Court below against the plaintiff. The following substantial questions of law are, therefore, formulated and are communicated to the learned counsel for their submission on those points:-
(a) whether the judgment of the lower appellate Court is vitiated on non-consideration of material evidence and based on surmise and conjecture and can be termed as perverse.
(b) whether to satisfy the need of the plaintiff the Court can direct the plaintiff to split up the family of the plaintiff landlord and to stay in different premises in different places owned by the plaintiff.
(c) whether insofar as the residential requirement of the plaintiff is concerned the landlord can be termed as the best Judge or the Court will decide where and under in which manner plaintiff would reside.
(d) whether in the instant case the alternative reasonably suitable accommodation as found by the Courts below can really be termed as reasonably suitable accommodation or not.
(e) whether from admitted evidence on record the need of the plaintiff comes out from the admitted evidence on record then whether the Courts below can simply throw it away as a mere desire of the plaintiff.
18. On the above questions formulated being substantial questions of law by this Court this appeal is taken up for hearing.
19. It may also be mentioned in this context that as quoted earlier when admitting this appeal under the provisions of Order 41 Rule 11 of the Code of Civil Procedure the Division Bench of this Hon'ble Court admitted this appeal on the grounds set out in the memorandum of appeal as substantial questions of law and in that view of the matter the learned counsel was also directed by this Court to make their submissions on the ground Nos. 1 to 9 as made out in the memorandum of appeal though the questions formulated by this Court as mentioned above also includes some of the grounds of the memorandum of appeal.
20. The relevant provision under West Bengal Premises Tenancy Act for the purpose of eviction of a tenant on the ground of reasonable requirement is as follows:
"13(1)(ff)-- Subject to the provisions of Sub-section (3A), where the premises are reasonably required by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession or any reasonably suitable accommodation."
21. Now, to come under the scope of this section, two factors are very important that is, (i) the premises must be reasonably required by the landlord for the occupation of his own or for the occupation of any person for whose benefit the premises are held and (ii) the landlord or such person was not in possession of any reasonably suitable accommodation.
22. The admitted position of fact as it comes out from the evidence and judgment of both the Courts below can be narrated thus:
23. The original plaintiff Anuja Devi was more than 70 years of age and her husband Jagannath Trivedi the present appellant No. 1 is more than 80 years of age. The plaintiff had two sons, Biudyananda and Anirudha. The elder is married having sons and daughters and he lives in a rented house in Calcutta. The younger son is a school teacher and has got married during the pendency of the suit and he lives at the native place of the plaintiff. The original plaintiff Anuja Devi expired during the pendency of this proceeding and her heirs have been substituted in place of Smt. Anuja Devi and the present appellant No. 1 Jagannath Trivedi is the husband of the original plaintiff Anuja Devi. The original plaintiff apart from two sons as mentioned above had six daughters (married) and out of them four daughters with their families reside in Calcutta and its suburbs. The plaintiff required the suit premises for accommodation of herself, her husband and other family members. The original plaintiff is admittedly the daughter of Raja of Lalgola and had got her ancestral house in the native village which is a very big one in the District of Murshidabad and is palactous building comprising of about 20 to 25 rooms and also other amenities. The suit premises consists of three rooms one bath room and one privy of the first floor and a stair case room and a kitchen on the second floor at 13A, Ballygunge Place East Calcutta. During the pendency of the appeal the plaintiff got possession of one flat at the ground floor of the suit building being premises No. 13A, Ballygunge Place East consisting of three very small rooms and two of them are very illshaped and during the pendency of the first appeal another ground floor flat containing two rooms came in possession of the plaintiff and the said two roomed flat is at 13G, Ballygunge Place East which is in a different place and not contiguous to the suit building. The plaintiff in the plaint required four rooms one for herself and her husband one for her eldest son and his wife one for her youngest son and his wife one for her grandson and apart from these four rooms the plaintiff required one drawing room, one dining room, a thakurghar and one room for the guests and one store room.
24. In the above context the plaintiff Anuja Devi adduced evidence on commission, PW2 is the eldest son, PW3 is the grand son and PW4 is the youngest son.
25. The lower appellate Court observes in the judgment (admittedly the plaintiff) required the suit premises for her and her husband's use and occupation of her two sons Bishudhananda and Anirudha and their family members it is also admitted that the eldest son is employed in Calcutta and resides in the rented house with his wife and has got grown up children on payment of a monthly rent of Rs. 280/- (exhibit 5 series). He has come before the Court and deposed as PW2 to prove the case of the plaintiff.
26. Regarding the deposition of eldest son PW2 the observation of the lower appellate Court is "the filing of rent receipts merely shows that he is a tenant in respect of a premises at a rent of Rs. 280/- per month. But it can never be presumed that he is desirous of leaving the rented premises because of higher rent paid by him unless he says so specifically when he had a chance to do so while deposing as PW2. In such circumstances it is difficult to believe on my part that though the plaintiff herself desires to leave with her eldest son along with her other family members the eldest son does not desire the same as he has not stated any where in his evidence.
27. In the plaint there is requirement of one room for eldest son and his wife and one room for grand son and grand daughters. In her evidence PW1 original plaintiff Anuja Devi deposed that she wants to live with her eldest son. It is also admitted that the eldest son lives in a rented accommodation. It is further admitted that the eldest son has come to depose on behalf of the plaintiff to prove the requirement, then how can the appellate Court below comes to a finding that the eldest son does not want to stay with his parents and this is contrary to the admitted evidence.
28. Insofar as the youngest son is concerned who has deposed as PW4 the observation of the appellate Court below is "more over, after the departure of his parent from Jemo someone of the family must required to stay at Jemo to look after their big ancestral house with tank, garden, Natmandir and 25 bigas of the agricultural land under barga cultivation. So, the surrounding circumstances are such that it has become almost impossible for PW4 Anirudha to live his ancestral house at Jemo and to accompany their parents at Calcutta for the sake of his service his family and his ancestral landlord property including the ancestral house at jemo."
29. In the plaint one room has been claimed for his youngest son and his wife, in the evidence Anuja Debi original plaintiff said that she wants to stay with her two sons, the youngest son deposed as PW4 and expressed his desire to stay with his parents. Even if it has also been observed by the lower appellate Court that admittedly PW2 the eldest son in his evidence stated that one room is required for his youngest brother. Now after all these admitted observations how can the lower appellate Court come to a finding that the youngest son is not going to stay with his parents. This is contrary to the evidence on record and that apart the observation of the appellate Court below that the youngest son is required to stay at the native place to look after their ancestral house and property does not come out from any evidence but is merely based on surmise and conjecture.
30. The appellate Court below also observes "now the plaintiff is admittedly very old lady now aged about 74 years and her husband is also very old aged about 84 years. Their old age is a proof of their ailment and it is quite possible that they have been suffering from various ailments due to their old age like blood pressure etc. for which I have no reason to disbelieve the medical certificate and prescription filed by them in Court (exhibit 10 series). It also goes without saying that the quality of medical facilities that are available in Calcutta are far better than that of the facilities available at any sub-divisional hospital like Kandi. The plaintiff's desire to come to Calcutta and stay there for the purpose of her treatment and the treatment of her husband is therefore quite understandable and genuine. More so, when four of her six daughters and one of her two sons are residing at Calcutta with their families who are reasonably expected to look after them".
31. At the same time, the learned appellate Court observes that the plaintiff's desire to live with her two sons and their families has not been proved by the evidence on record. The lower appellate Court also comes to a finding that at best her two sons and their families can be expected to visit her occasionally as four daughters who are also residing in Calcutta.
32. Now, admitting that the plaintiff and her husband requires medical treatment and that there are better medical facilities available in Calcutta then how the appellate Court comes to a finding that the old persons aged about more than 70 years and more than 80 years will stay in a premises without the company of their sons when admittedly the eldest sons lives in Calcutta and how the appellate Court comes to the finding. 'The other accommodation on the ground floor consisting of two rooms bath and privy situated at 13G, Ballygunge Place East though not situated to each other may be used by her for the occasional visits of her sons and daughters and their family and the question of splitting up the family of the plaintiff does not arise at all."
33. As stated above, the provision of the statute is reasonable requirement and the appellate Court should have considered whether the plaintiff and her family members reasonably "requires the suit premises" and the language is not bona fide or bona fide requirement as in other statute. Now when the appellate Court below itself observed that the claim is genuine it cannot subsequently say that the desire has not been proved and from the above admitted position it clearly appears that the judgment of the appellate Court below is perverse.
34. Now, the appellate Court below cannot unduly stretch the term requirement to disprove the claim of the plaintiff. It may be relevantly observed that during the pendency of this eviction proceeding the original plaintiff Anuja Debi expired and her husband has become more older. The original plaintiff also required medical assistance not only for her but also for her husband who stills survive. In a decision (Bega Begam v. Abdul Ahad Khan) the Hon'ble Supreme Court has observed :-
'The distinction between desire and need should be kept in mind but not so as to make even the genuine need as nothing but a desire as the High Court had done in this case. It seems to us that the connotation of the term "need or requirement" should not be artificially extended on its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the act which upholds the facility of eviction of the tenant to the landlord on certain specified grounds".
35. As mentioned earlier the Hon'ble Supreme Court has observed that if the findings are perverse and if the findings of the lower appellate Court is based on non-consideration of material evidence within the scope of Section 100 of the Code of Civil Procedure the High Court can interfere in the findings. In view of the above discussions it would clearly appear that once only appellate Court below observes that the need is genuine and on the very next breath it observes that the desire has not been proved. Neither the reasonableness of the requirement has been considered in the light of the evidence on record nor the alternative accommodation which has been suggested by the appellate Court below has been found by Courts below as to whether the same is a reasonably suitable accommodation or not.
36. Insofar as the second question is concerned as I have already observed that the appellate Court below found the need of the plaintiff genuine but suggested some other arrangements or accommodation in different premises for the plaintiff. That is the appellate Court below suggested that some of the members of the family in one premises and the other members will live in a different premises owned by the plaintiff's, though in two different places. Now it has also been admitted in evidence and found by the appellate Court below that the original plaintiff is a daughter of Raja of Lalgola and the plaintiff's native residential place is in a palacious building at Murshidabad comprising of 20 to 25 rooms and when the plaintiff's have their own house at Calcutta, can the Court suggest such a family to split up and stay in different buildings.
37. In my opinion the answer must be in the negative because the plaintiff's got their upbringing in the palacious accommodation, they have their own houses at Calcutta and since at certain point of time some portions were let out, it would not be fair and proper to come to the conclusion that even if the need is found to be genuine still then the plaintiff's having their own house will not be entitled to ask for eviction and they will have to stay by splitting up their family and in unspacious accommodation.
38. In this context I am tempted to quote the decision of the Hon'ble Supreme Court (Prativa Devi v. T.V. Krishnan) which observes:
"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 dilate to the landlord how and in what manner he should live or prescribe for him a residential standard of his own".
39. The Hon'ble Supreme Court also observed:
"We failed to appreciate the High Court giving such a gratuitous which advice was uncalled for. There is no law which deprives the landlord of the beneficial enjoyment of his property."
40. In another judgment (Raghabendra Kumar v. Firm Prem Machinery and Co.) which observes:
"It is a settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter."
41. In a single Bench judgment of this Court reported in 1989(2) CLJ 450 also the same view has been adopted and the Court observed:
"The plaintiff owner cannot be compelled to split up his family in ultimate decision of the Court deciding a lis for ejectment grounded on reasonable requirement."
42. Insofar as the question Nos. 2 and 3 are concerned in my opinion, therefore, when in the instant case the plaintiff have got their own houses at Calcutta which is admitted and when the need is found to be genuine the appellate Court below cannot give such a gratuitous advice for splitting up the family of the plaintiff and to reside in a different premises in the manner as suggested by the Court. As stated above in answer to the first question I find that the judgment of the lower appellate Court is perverse which is also become vitiated due to non-consideration of the material of the evidence on record and non-consideration of the statutory mandate.
43. Insofar as the fourth question is concerned both the Courts below failed to consider the provisions of the section and failed to consider as to whether the alternative accommodation as found by the Courts below is a reasonably suitable accommodation for the landlord.
44. It is mandatory and binding upon the Courts to come to a decision which must be based on the statutory mandate that is the trial Court and the first appellate Court which are the ultimate Courts of facts must come to a conclusion regarding the reasonableness of the requirement of the landlord and regarding the fact as to whether the alternative suitable accommodation is reasonably suitable accommodation for the landlord or not and more particularly in the context of standard of living and upbrining of the members of the owners of the premises.
45. When answering the last question which also can be termed as a substantial question of law, in my opinion the trial Court and the first appellate Court when coming to a conclusion regarding the claim for reasonable requirement counts must have to give reasons as to why the requirement is not reasonable and if from the admitted evidence it comes out that the requirement is reasonable the Courts should not or the Courts cannot throw away the claim of the owners of the premises for eviction of the tenant simply nullifying the claims in one manner or other.
46. In the instant case the original plaintiff Anuja Devi is admittedly being the daughter of Raja of Lalgola came from a highly respectable family and the entire family of the plaintiff when residing at their native place used to live in a palacious building comprising of 20 to 25 rooms with adjoining tank, natmandir etc.
47. The husband of the plaintiff is also unable to get better medical treatment. The trial Court found that the medical certificate and the prescription cannot be relied upon with full satisfaction after observing that though PW3 who is the grandson of plaintiff being MBBS(MD) has proved documents yet in the absence of corroboration by the experts like attending doctors themselves these prescriptions cannot be relied upon with full satisfaction and in the next line the trial Court finds "admittedly plaintiff and her husband are now very old and aged."
48. The first appellate Court finds that though the certificates are genuine need is genuine still then the owners can split up families and reside in different premises. The plaintiff's having their own houses at Calcutta are unable to reside there comfortably and it is unfortunate that the original plaintiff Anuja Debi by now expired and her husband being more than 80 years old is unable to expect some more life and better treatment and he is unable to enjoy the air and light of this world for a few more days. Both the Courts with their strenuous efforts tried to disprove the claim of the landlord/owners of the premises as if "since you have let out the premises you are to suffer". This is not the object of the West Bengal Premises Tenancy Act and this is not the scope and purview of Section 13 of the said Act. Protection of the tenant from eviction in the Act itself did not want protection at any rate and at any cost, even at the cost of the lives of the landlords as has been found and observed by both the Courts below in the instant case.
49. In my opinion therefore, the judgment and decree of the trial Court as well as the appellate Court below should be set aside and are hereby set aside and the instant appeal being S.A. No. 433/1993 is allowed. The suit being Title Suit No. 286/1978 should be decreed and is decreed against the defendant. The defendants/respondents (though the suit is very old one) is given three months time to vacate the suit premises failing which the plaintiff appellant would be entitled to put the decree in execution.
In the circumstances the parties are to bear their respective costs. Let a decree be drawn up accordingly.
Urgent certified copy, if applied for, will be given expeditiously.