Calcutta High Court (Appellete Side)
Smt. Ila Banerjee vs Raj Kumar Chakraborty on 30 July, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
SA 344 of 2014
Smt. Ila Banerjee
Vs.
Raj Kumar Chakraborty
For the appellant: Mr. Siddheswar Chandra, Adv.
Heard on: July 22, 2019.
Judgment on: July 30, 2019.
BIBEK CHAUDHURI, J. : -
1. The appellant as plaintiff filed Ejectment Suit/Case No.5 of 2005
against the defendants/respondents praying for eviction and recovery of
possession of the tenanted premises (hereafter referred to as "suit premises") in the 3rd Court of learned Judge, Presidency Small Causes Court on the grounds of default in payment of rent and reasonable requirement. The trial court decreed the suit by a judgement and decree dated 25th August 2009 holding, inter alia, that the defendants/respondents were defaulters in payment of rent. The trial court, however, found that the plaintiff/appellant failed to prove her case of reasonable requirement and she was not only to any decree on the said 2 ground of reasonable requirement. The defendants/respondents preferred an appeal before the learned Chief Judge, City Civil Court at Calcutta. The learned Judge in 1st Appellate Court allowed the appeal by setting aside the judgment and decree that was passed by the trial court on the ground that the defendants were not defaulters in payment of rent.
2. Raising some substantial questions of law, the plaintiff/appellant has preferred the instant appeal being aggrieved by and dissatisfied with the judgment and decree passed on 31st May 2013 passed by the learned 5th Judge, City Civil Court at Calcutta in Title Appeal No.1 of 2010.
3. The said appeal was admitted for hearing by the Division Bench of this Court vide order dated 4th September, 2014. The Division Bench while admitting the appeal formulated the following substantial questions of law:-
a) Whether the learned Courts below committed substantial error of law in holding that the plaintiff did not reasonably require the demised premises.
b) Whether the leaned Appellate Court erred in law in holding that there was no default in making payment of rent.
4. It is pertinent to mention at the outset that the defendants/respondents were served notices of the appeal and a Coordinate Bench of this Court vide order dated 18th December, 2017 held that notice of the appeal was duly served upon the respondents. However the respondents have preferred to remain unrepresented in the instant appeal. Therefore, the appeal is heard exparte. 3
5. The plaintiff/appellant is the owner of premises No.17 Vidyasagar Street, Calcutta-9 by purchase. One Ani Kumar Chatterjee, since deceased was a tenant in respect of the suit premises under the erstwhile owner, Subrata Mondal. After sell of the suit house in favour of Smt. Ila Banerjee appellant herein, her vendor being the original landlord issued Letter of Attornment on 24th March, 2004 informing the tenant that he had sold out the suit house to the appellant and also requesting him to pay monthly rent at the rate of Rs.200/- payable according to English calendar month to the appellant. It was the case of the plaintiff that the defendant/tenant was a defaulter in payment of rent since May, 2002. Further case of the plaintiff was that she reasonably required the suit premises for her own use and occupation as well as for her family members. According to the plaintiff, her family consist of herself, her husband, married son, daughter-in-law and their minor child. Her husband is a qualified engineer. He retired from service and wanted to start the consultancy business pertaining to his field of expertise. Both the son and daughter-in-law of the plaintiff are qualified doctors for paucity of accommodation of the suit house they have been residing in a house at Garia as licensees. Two rooms are absolutely necessary in the suit house for their medical profession to be used as professional chambers. Plaintiff also claimed one room to be used as a study room for her minor grand-son. Mother-in-law of the plaintiff/appellant and defendant widow sister-in-law are residing at Nabadwip. One room is also required to accommodate them in the suit house.
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6. According to the plaintiff she is in occupation of two rooms on the first floor and one dilapidated room on the second floor of the suit house. The second floor room is not at all habitable. Present accommodation of the plaintiff is not at all suitable in comparison to her bona fide need and requirement. Therefore, she determined tenancy of the defendant/tenant by a notice under Section 6(4) of the West Bengal Premises Tenancy Act, 1997. The defendant/tenant refused to accept the said notice when it was tender to him and the postal cover containing notice was returned to the plaintiff with an endorsement "not claimed". Finally, the plaintiff filed the suit against the defendant/tenant.
7. During pendency of the suit the original tenant had expired. His legal heirs and representatives were substituted in place of deceased defendant/tenant. They contested the suit in the trial court by filing written statement. The defendants denied the allegation that they had defaulted in payment of rent since May, 2002. It is the specific case of the defendants/respondents that Mr. Subrata Mondal, the original plaintiff/appellant refused to accept rent for the month of May, 2002. Accordingly the respondents went on depositing rent in the name of the erstwhile landlord from the month of May 2002 in the office of the Rent Controller. The respondents further pleaded that after receiving Letter of Attornment, he started depositing rent in the credit of the plaintiff before the Rent Controller from the month of March, 2004 as the plaintiff/appellant had refused to accept rent which was tendered to her by the original tenant. Since March, 2005, the defendant deposited rent in 5 the trial court regularly in compliance of the statutory provision contained in Section 7 of the said Act. The defendant/respondent also denied the story of reasonable requirement of the plaintiff for herself and her family members.
8. On the pleading of the parties, the learned trial court framed as many as seven issues. Issue No.4 pertains to the dispute as to whether the defendant/tenant was a defaulter in payment of rent. The learned trial judge on due consideration of evidence on record held that the defendant/tenant defaulted in payment of rent for the period between May, 2002 and February, 2005. The issue on reasonable requirement was decided against the plaintiff. However, ultimately, suit was decree on contest against the defendant on the ground of default by the learned trial judge.
9. The lower court of appeal, however reversed the judgment and decree passed by the trial court holding, inter alia, that the learned trial court had no authority to decide as to whether deposits of rent from the month of May, 2002 to February, 2005 were valid or not because rent for the said period was deposited to the Rent Controller before institution of the suit and the court has no authority to consider whether the presuit deposits were valid or not. Learned Judge in 1st Appellate Court concur with the finding of the learned trial court on the issue of reasonable requirement. Accordingly the appeal was allowed and judgment and decree passed in Ejectment Suit/Case No.5 of 2005 were reversed. 6
10. I have already recorded substantial questions of law formulated by the Division Bench of this Court at the time of admission of the appeal. I like to deal with the question as to whether the learned Appellate Court erred in law in holding that there was no default in making payment of rent first.
11. Section 7 of the said Act has saddled the tenant with a mandatory obligation in an eviction suit filed on any ground specified in Section 6 of the said Act to pay to the landlord or deposit with the Civil Judge of arrears of rent, calculated at the rate of which it was last paid and pay to the end of the month previous to that in which the payment is made together with interest at the rate of 10% per annum. Sub-section (3) of Section 7 of the said Act, however, stipulates that if the tenant fails to deposit or pay any amount referred to in Sub-section 1 or Sub-section 2 within the specified period of time or within such extended time as may be granted, his defence against delivery of possession shall be struck out and the court shall proceed with the hearing of the suit.
12. It is found from the lower court record that the original defendant/tenant filed an application dated 11th April, 2005 stating, inter alia, that he deposited rent in respect of the suit premises up to the month of February, 2005 at the rate of which it was last paid to the landlord in the office of the Rent Controller, Calcutta. Now he intended to deposit the monthly rent from the month of March, 2005 in the name of the plaintiff/appellant. On perusal of the said application, there cannot be any doubt that it was filed under Section 7(1) of the said Act. It is 7 important to note that the defendant/tenant did not make any application under Section 7(2) of the said Act depositing the existence of the relationship of landlord and tenant between the parties to the suit. A Letter of Attornment was issued by the original landlord Subrata Mondal to the original defendant/tenant was marked as Exhibit-5 during the trial of the suit. By the said letter, the defendant/tenant was informed that the said Subrata Mondal had sold out the suit house to the plaintiff/appellant by a deed of conveyance dated 22nd September, 2003. The tenant was further directed to pay rent to Smt. Ila Banerjee in respect of the tenanted premises. On perusal of the postal receipt and acknowledgement card (Exhibit-5/a) and 5/b) it is ascertained that the original defendant/tenant received the said letter. It is further found from the Exhibit-5 that the defendant was inducted by one N.K Mitra in the suit premises as a tenant. The heirs of the said N.K. Mitra sold out a portion of premises No.17, Vidyasagar Street in favour of Smt. Ila Banerjee to the appellant herein by a registered deed of sale dated 28th May 2002. One Subrata Mondal was the owner of undivided back portion of the said premises No.17, Vidyasagar Street. Subrata Mondal sold out his portion in favour of the plaintiff/appellant by a registered deed of conveyance dated 22nd September, 2003. The said deed of conveyance was marked as Exhibit-2 during the trial of the suit.
13. From the evidence of the respondent No.1 who deposed in the suit as DW1, it is ascertained that on receipt of a Letter of Attornment, her husband lawfully deposited rent in the office of Rent Controller, Calcutta 8 in the credit of the previous landlord namely Subrata Mondal from the month of May 2002 to February, 2004. DW1 further admitted that her husband, the original tenant received Letter of Attonment dated 24th March, 2004 from Subrata Mondal and since March 2004 to February, 2005 he deposited rent in the office of the Rent Controller in the credit of the present plaintiff/appellant. Subsequently he entered appearance in the suit and went on depositing rent in the name of the present appellant.
14. Mr. Siddheswar Chandra, learned Advocate for the appellant submits that Section 21 of the said Act lays down the circumstances under which the tenant will be entitled to deposit rent with the Rent Controller. First the tenant would tender rent to the landlord within the prescribe period of time. If the tenant refuses to accept such rent, the tenant shall take the next course by remitting the rent to the landlord by postal money order within 15 days of such refusal. If the landlord refused to accept rent by postal money order, the tenant may deposits such rent with the Rent Controller within 15 days from the date of which the money order is returned to the tenant by the postal authority as undelivered. It is urged by Mr. Chandra that the tenant failed to prove that before depositing rent with the Rent Controller he sent rent by money order to the appellant and the appellant refuse to accept the same. Therefore, all deposits of rent with the Rent Controller are invalid deposits and the tenant should be held defaulter in respect of payment of rent from the month of March, 2002 up to the month of February, 2005. The learned 9 Judge in Lower Appellate Court failed to consider such mandatory requirement of Section 21 of the said Act.
15. On perusal of the evidence of DW1, it is found that the defendant/tenant started depositing rent with the Rent Controller, Calcutta since the month of previous landlord Subrata Mondal who is the vendor of Smt. Ila Banerjee, the appellant herein. Subrata Mondal never raised any dispute with regard to payment of rent or deposit of rent by the tenant with the Rent Controller during the period when he was the landlord. Subsequently on 24th March, 2004 he sent a Letter of Attornment to the tenant requesting him to pay rent to the appellant. On receipt of such Letter of Attornment the defendant credited amount of rent from the month of March 2004 up to February, 2005 with the Rent Controller in the name of the plaintiff/appellant. When Subrata Mondal, the erstwhile landlord preferred not to raise any dispute with regard to noncompliance of preconditions contained in Section 21 of the said Act, the subsequent landlord, in my considered view cannot raise such dispute and plead that the defendant/tenant was a defaulter in payment of rent since May, 2002. In other words in May 2002, there was no relationship of landlord and tenant between the appellant and the predecessor of the present respondents. When the rent was being deposited with the Rent Controller in the name of the previous landlord and on receipt of Letter of Attornment (Exhibit-5) the tenant started depositing rent in the name of the present landlord, the tenant cannot be held to be defaulter for noncompliance of section 21(2) of the said Act so far as it relates to 10 remitting rent to the landlord by money order. I am, accordingly of the view that the learned Judge in Lower Appellate Court did not commit any error of law in holding that the respondent were not defaulter in respect of payment of rent.
16. Coming to the question as to whether both the courts below substantially erred in law in holding that the plaintiff did not reasonably require the demise premises, I like to state at the outset that in order to establish the claim for eviction of a tenant on the ground of reasonable requirement, the landlord must prove the following requirements:-
(i) The landlord reasonably requires the premises for his own occupation as well as for the persons for whose benefit the premises is held.
(ii) The landlord has no other alternative suitable accommodation within the same municipal corporation or in any other area within 10 km. from such premises where the West Bengal Premises Tenancy Act, 1997 extends.
(iii) The landlord is the owner of the suit premises.
17. Essentially all the above mentioned requirements are questions of fact and concurrent findings of fact of the trial court and the 1st Appellate Court cannot be manufactured with by this court unless findings are perverse. In Hero Vinoth vs. Seshammal, reported in (2006) 5 SCC 545, the Hon'ble Supreme Court summarized the principles relating to Section 100 of the Code of Civil Procedure in the following manner:-
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the 11 terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where
(i) The courts below have ignored material evidence or acted on no evidence;
(ii) The courts have drawn wrong inferences from proved facts by applying the law erroneously; or
(iii) The courts have wrongly cast the burden of proof.
When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.
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18. Since determination of a question as to whether plaintiff reasonably requires the demised premises or not is, in my humble view, a question of fact.
19. I am inclined to reformulate the substantial question of law in the following words taking aid of Section 100(5) of the Code of Civil Procedure:-
Whether the learned Courts below committed substantial error of law by ignoring material evidence adduced by the witnesses on behalf of the appellant to arrive at a decision against the appellant that she did not reasonably required the demised premises.
20. There is no dispute on the question that the appellant is the absolute owner of the suit house. It is rather admitted by DW1 that the family of the appellant consists of herself, her husband, one married son, daughter-in-law and her grand-son. The plaintiff also claimed accommodation for her mother-in-law and dependent widow sister-in-law. It is submitted by the learned Counsel for the appellant that during the pendency of this appeal, mother-in-law had expired. Learned Counsel for the appellant further concedes that the sister-in-law of the plaintiff now resides at Nabadwip. Therefore, both the Courts below rightly refused the claim of the appellant towards the requirement of her mother-in-law and sister-in-law.
21. The respondent No.1 in her evidence as DW1 admitted that both the son and daughter-in-law of the plaintiff are medical practitioners. It is borne out of record that they are now residing in Garia with their only 13 son. Plaintiff/appellant pleaded that for paucity of accommodation, her son and daughter-in-law cannot reside in the suit house. Apart from the accommodation for their living, they also require two separate rooms for their house as profession chambers in the suit house. The plaintiff/appellant claimed one study room for her grand-son.
22. The defendant/tenant on the other hand claimed that the plaintiff is the owner of the house at Garia where her son is residing with his wife and son. It is claimed by the appellant, on the other hand, that they are residing in a house at Garia as licensees.
23. During trial of the suit the husband of the plaintiff/appellant gave evidence as PW1 in his examination in chief he stated that the son, daughter-in-law and the grand-son of the plaintiff are residing at the premises No.14, Kendua Main Road, Garia as licensees. During cross examination PW1 stated on oath that his father-in-law is the owner of premises No.14, Kendua Main Road, Garia and his married son is residing in the said house with his wife and one son. It is important to note that no suggestions was put to PW1 denying his statement on oath in cross examination that premises No.14, Kendua Main Road is owned by the father of the appellant and father-in-law of PW1. Status of the son, daughter-in-law and grand-son of the plaintiff in the said house is of course that of licensees which both the Courts below ignored to consider. Both the Courts below held that the appellant suppressed her accommodation available at premises No.14, Kendua Main Road, Garia. Learned Advocate for the appellant placing reliance on the decision of the 14 Hon'ble Supreme Court in M.L Prabhakar vs. Rajib Singal reported in (2001) 2 SCC 355 submits that where the landlord had not mentioned anything in the plaint about the premises belonging to him or his wife, but material about them had been placed before the Rent Controller as well as High Court and the question as to the accommodation in the said premises had been adequately dealt with, it and ought to be held that no prejudice was cast to tenant. The fact situation of M.L Prabhakar (supra) is distinguishable from the instant case. In the said decision the landlord and his wife were owner of two other houses which was not disclosed in eviction petition. In the instant case it was ascertained from the PW1 in his cross examination that his father-in-law is the owner of premises No.14, Kendua Main Road. Neither the appellant nor her husband is the owner of the said premises. Therefore, question of prejudice for nondisclosure of the status of married son, his wife and their son in respect of the accommodation need not be disclosed in the plaint. Nondisclosure of such fact by the appellant cannot be treated as suppression of material facts.
24. In Chandra Bhan vs. Ram Dayal reported in (2004) 10 SCC 150, the Hon'ble Supreme Court held that requirement of suit shop room by the landlord for his son to start the general merchant business cannot be held to be a mala fide. The plea of the tenant that the son of the plaintiff/landlord is doing business in Delhi and the suit premises at Alwar would be of no use for him was held untenable. The Hon'ble Supreme Court further held that old aged landlord wanted his son to 15 settle in Alwar so that the son could look after both the business and home is a bona fide requirement and on this score, the tenant is liable to be evicted. It is not in dispute that the respondent carry on business of manufacturing and sale of gold ornaments as their family business. The original plaintiff, since deceased used to run the same business in partnership with his eldest son. He prayed for eviction of the tenant from the suit shop room for starting a business for his son of same nature. Such requirement of the landlord must be held to be genuine and bona fide. The decision of the Hon'ble Supreme Court in Gulraj Singh Grawal vs. Harbans Singh reported in AIR 1993 SC 1574 may be relied on in this regard.
25. The instant appeal was admitted and substantial questions of law were framed by the Court and, therefore, while considering substantial questions of law, if the court finds that interference is required even in findings of fact arrived at by the 1st Appellate Court, it can do so. The decision of the Apex Court in the cases of D.R Rathna Murthy vs. Ramappa reported in (2011) 1 SCC 158 ; Abdul Raheem vs. Karnataka Electricity Board reported in (2007) 14 SCC 138, Surain Singh (Dead) by Lrs vs. Mehenga (Dead) by Lrs reported in (1996) 2 SCC 624, Leela Soni vs. Rajesh Goyal reported in (2001) 7 SCC 494 and Shri Bhagwan Sharma vs. Smt. Bani Ghosh reported in AIR 1993 SC 398 may be referred to in support of the observation made hereinabove.
26. Both the son and daughter-in-law of the appellant are medical practitioners. The appellant and her husband are senior citizens. They 16 want their son, daughter-in-law and grand-son to stay with them in the suit house as medical practitioners, requirement of two rooms to be used as professional chambers of the son and daughter-in-law was made out in the plaint. The pleading was duly established by evidence adduced by the husband of the appellant. At the relevant point of time when trial of the suit was taken up, the grand-son of the appellant was six years of age. Now he is about 19 years of age. Therefore, a separate room for his stay and study is genuinely required in the suit house. From local inspection and one kitchen in the first floor one room.
27. Both the courts below failed to consider the evidence on record in support of the claim of the appellant for eviction of the respondents from the suit premises on the ground of reasonable requirement. Non consideration of material evidence renders the findings of both the courts below perverse and this court sitting on appeal under Section 100 of the Code of Civil Procedure can very well pass necessary order allowing the appeal holding, inter alia, that the respondents/tenants are liable to be evicted from the suit premises on the ground of reasonable requirement.
28. As a result the instant second appeal is allowed, however without cost.
29. The judgment and decree of dismissal of the suit passed by the learned 1st Appellate Court is hereby set aside.
30. The respondents are directed to quit, vacate and deliver peaceful possession of the suit premises within 60 days from the date of this 17 judgment, failing which the appellant is at liberty to put the decree in execution.
31. The appellant is also entitled to a decree for mesne profit, the amount of which will be decided by the executing court in a proceeding under Order 20 Rule 12 of the Code of Civil Procedure.
Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Bibek Chaudhuri, J.)